Voluntary departure, section 244(e) of Immigration and Nationality Act -- Good moral character, section 101(f)(2) of the act -- Adultery, Illinois.
While the marriage of the parties involved in an adulterous relationship could prevent criminal prosecution for adultery under Illinois law, such marriage cannot cure the adultery for the purposes of section 101(f)(2) of the Immigration and Nationality Act. Accordingly, the respondent is precluded from establishing the requisite good moral character and cannot be granted voluntary departure under section 244(e) of the act.
CHARGES:
Warrant: Act of 1924 -- Remained longer -- Visitor.
Discussion: The issue presented by this appeal is whether respondent
has established statutory eligibility for voluntary departure under
section 244(e) of the Immigration and Nationality Act, on an application
submitted during the hearing on March 15, 1955. The special inquiry
officer has denied relief on a finding that the respondent has committed
the offense of adultery within the statutory period required for good
moral character and is precluded from establishing eligibility for
relief (section 101(f)(2) of the Immigration and Nationality Act).
The respondent, a 33-year-old male alien, native and citizen of Cuba,
last entered the United States at Miami, Florida, on August 4, 1950. He
was admitted as a visotr for pleasure. No extension of the period of
temporary stay was granted. He has remained up to the present time.
Deportability is conceded. On December 3, 1950, he was married to a
United States citizen. In December 1952 he and his spouse separated and
in July 1954 he instituted divorce proceedings which were pending at the
time of hearing on March 15, 1955. Respondent admitted that since
February 1953 he and one L M C I (then an unmarried woman), lived
together in Chicago, Illinois, and that he is the father of a son born
to such woman on December 1, 1953. He has stated that his son, and the
son's mother, reside with him and are supported by him. (L M C I is
subject of similar proceedings, A-8877410.)
On May 13, 1955, counsel was heard in support of the appeal. He
stated that the respondent was granted a decree of divorcement on April
15, 1955, dissolving the 1950 marriage; and that on April 16, 1955, he
was married to the mother of his child. Documentary evidence of the
divorce and the marriage has been submitted. Counsel contends that the
evidence does not establish that respondent has committed adultery under
the Illinois statutory law because there has been no open and notorious
cohabitation as man and wife that would constitute the offense. Two
criminal cases, one involving adultery and fornication, and one
involving fornication, have been cited to support his contention. /1/
The pertinent statute relating to the offense, adultery, is section
37.022 Illinois Criminal Code (Jones). /2/ Although the elements of the
crime are not set forth in the statute, decisions of the Supreme Court
of Illinois have construed the statute and defined the offenses therein,
and have specified the evidence required for conviction. We have
examined these decisions to ascertain the elements of adultery. /3/
To constitute adultery the parties must dwell together openly and
notoriously, upon terms as if the conjugal relation exists. They must
cohabit together and there must be illicit relations (People v. Martin,
180 Ill.App. 578 (1913); and People v. Stern, 207 Ill.App. 154 (1917)).
We have carefully examined the evidence. The undisputed testimony of
respondent establishes that from February 1953 to March 15, 1955, while
he was lawfully married, he lived and cohabited with a woman not his
wife and supported her, and that a child was born by the relationship.
They were dwelling in the same house at the same address and the
cohabitation was habitual. Despite the contention of counsel, we find
that the evidence establishes that respondent has committed adultery.
Counsel asserts that should adultery have been committed, there is no
offense now, because the respondent has married the woman involved; and
that criminal prosecution may be prevented or suspended under the
proviso to the applicable Illinois statute. A decision in a divorce
proceeding is cited in support of this point. /4/ Reference has also
been made to decisions on the issue of good moral character, which were
made prior to the Immigration and Nationality Act.
The standard of good moral character to be used in determining
eligibility for discretionary relief depends on the provisions of the
statute in effect at the time, and under which a request for relief is
made. Thus, judicial and administrative decisions pertaining to the
issue of good moral character, on applications for relief under the
Immigration Act of 1917, as amended, where adulterous relationships
existed but were terminated, are not controlling in resolving the issue
in the instant case, which must be adjudicated under the provisions of
the Immigration and Nationality Act.
We have stated that conviction for adultery is not necessary to
establish that fact in administrative deportation proceedings (Matter of
R L , 0300-257135, Int. Dec. No. 676 (1954)). Although respondent's
marriage under the circumstances apparently could enable him to prevent
criminal prosecution for adultery under Illinois law, if such action
were contemplated, such marriage cannot cure the adultery for the
purpose of section 101(f)(2) of the Immigration and Nationality Act.
The offense of adultery is complete even if it existed for a single day
(Lyman v. People, supra). Accordingly, we find that the respondent is
precluded from establishing the requisite good moral character for the
five-year period immediately preceding his application for relief under
section 244(e) of the Immigration and Nationality Act. The appeal will
be dismissed.
Order: It is ordered that the appeal be dismissed.
(1) In the case, People v. Miner, 58 Ill. 59 (1871), a man and a
woman were charged in two counts in an indictment with adultery and
fornication. A judgment of conviction of the male person in the lower
court was reversed on appeal on the basis that the evidence barely
created a presumption of illicit sexual intercourse and was
insufficient; also, because the marriage of the convicted person was
based on rumor and there was no satisfactory evidence that the female
person was married. The evidence was found insufficient to establish
the alleged crime or crimes. The court, in regard to the evidence
necessary to establish the offense or offenses, stated: "* * * The
living together must be open and notorious, as if the relationship of
husband and wife existed. The illicit intercourse must be habitual * *
*. Reputation and cohabitation are not sufficient.' * * *
The case, People v. Searls, 13 Ill. 597 (1852), involved an
indictment charging fornication. The court defined the elements of the
offense by stating: "* * * The parties must dwell together openly and
notoriously, upon terms as if the conjugal relation existed between
them. In other words, they must cohabit together.' * * *
(2) 37.022 Adultery. If any man and woman shall live together in an
open state of adultery or fornication, or adultery and fornication,
every such person shall be fined not exceeding $500, or confined in the
county jail not exceeding one year. For a second offense, such man or
woman shall be severely punished twice as much as the former punishment,
and for a third offense, treble, and thus increasing the punishment for
each succeeding offense: Provided, however, that it shall be in the
power of the party or parties offending, to prevent or suspend the
prosecution by their intermarriage, if such marriage can be legally
solemnized, and upon the payment of the costs of such prosecution. (Act
of 1874.)
(3) In the case, Lyman v. People, 198 Ill. 544; 64 N.E. 974 (1902)
(Supreme Court) the court stated:
* * * Adultery is the voluntary sexual intercourse of a married
person with a person other than the offender's husband or wife,
whether the latter is married or single * * *. The offense of the
married person is adultery, and of the unmarried person
fornication * * *.
The statute pertinent in the instant matter was interpreted in
the case, People v. Green, 276 Ill. 346; 114 N.E. 518 (1916),
which involved an indictment against a married man and a single
woman for adultery and fornication. In construing the statute the
court stated:
In a sense the offense is joint, but the statute defines the
crime and adultery where both parties are married or fornication
where neither is married, and adultery and fornication where one
is married and the other unmarried. The offense charged as to the
plaintiff in error was adultery and as to the woman fornication.
(4) The case, Turner v. Turner, 185 Ill.App. 62, a divorce proceeding
predicated on alleged adultery, involved the question of competency of
testimony of one of the parties, concerning acts of sexual intercourse
with each other prior to the marriage. It was held that the party was
incompetent to testify and a new trial was granted on the issue of
adultery.
Suspension of deportation -- Section 19(c) of Immigration Act of 1917.
Suspension of deportation is granted under section 19(c) of the Immigration Act of 1917 in view of the subject's substantial and meritorious service in the United States Merchant Marine during the war years.
CHARGES:
Warrant: Act of 1924 -- No visa.
Lodged: Act of 1924 -- Remained longer -- Seaman.
Discussion: On February 21, 1955, a special inquiry officer directed
that deportation be suspended pursuant to section 19(c)(2)(b) of the
Immigration Act of February 5, 1917, as amended. On March 11, 1955, the
case was certified to this Board by the Acting Regional Commissioner for
review and final decision.
Warrant of arrest was issued on July 18, 1951. On March 26, 1952, a
hearing officer found that deportability was established on the lodged
charge. An application for suspension of deportation was denied and
deportation was ordered. On June 12, 1952, the Acting Assistant
Commissioner adopted that decision. On June 11, 1954, on appeal this
Board withdrew the order for deportation and reopened the proceedings to
receive evidence of the respondent's service as a seaman during World
War II. The complete record is now at hand. The issue to be resolved
is whether the respondent should be granted maximum discretionary
relief.
Discussion as to Deportability: The respondent is a 40-year-old
married male alien, native and citizen of China, who last entered the
United States at the port of New York on August 6, 1950, as a crewman on
the SS. ESPARTA at which time he was admitted under section 3(5) of the
Immigration Act of May 26, 1924. Entry has been verified. Evidence
establishes that he was a bona fide nonimmigrant seaman at the time of
last entry but that he failed to reship, allegedly because he was unable
to obtain work as a seaman. Consequently, he is deportable under the
act of May 26, 1924, on the lodged charge.
Discussion as to Eligibility for Suspension of Deportation: The
respondent's testimony establishes that he is married and his spouse and
two children, citizens and residents of China, are living in that
country. He has been unable to communicate with his family since 1950.
He has no dependents or close family ties here. He is employed as a
waiter earning between $250 and $300 monthly. He has cash and bonds of
the aggregate value of $3,000, and his other assets are valued at
$2,000. Undisputed testimony and affidavits and statements of persons
well acquainted with him establish good moral character over a period of
eight or nine years and that he has never been arrested or convicted for
crime. He has no connection with subversive groups. He did not
register for United States military service until 1947. He is loyal to
the Government of the United States.
The evidence of subject's residence will be considered next to
determine eligibility for suspension of deportation since the
application is based on seven years' residence in the United States.
The respondent claims that he first entered this country in January 1944
as a seaman; and that he has maintained a rented residence at 176
Eldridge Street, New York City, since August 1944. He has submitted in
corroboration of his allegations a bank statement showing that he made
deposits in a bank in New York City in September and November 1944;
also three deposits in 1947 and four deposits in 1948. Also submitted
are -- a letter of employment in Brooklyn, New York, from November 1950
to September 1951, inclusive; a letter of employment at Fort Lee, New
Jersey, from July 1953 to December 1954, inclusive; and evidence of
membership in Yook Yee Association in New York, and National Maritime
Union, from July 1944 and August 1944, respectively. Statements of
persons who allege that they have known him in the United States
intermittently cover certain periods from 1944 to the present time. He
was the subject of warrant proceedings from August 1946 to July 1947.
On the record he has reasonably established residence from August 1944
to date, and a period of seven years' residence prior to December 24,
1952. He has, therefore, met the residence requirements for suspension
of deportation.
We do not grant suspension of deportation based merely on seven
years' residence unless there are outstanding or meritorious factors to
warrant favorable action. The respondent alleges seaman service and the
record will be examined to determine the merits of the service.
The respondent alleges that he left China in 1937 or 1938 and that he
was sailing on British vessels as a seaman (cook) from 1939 to 1941 when
he arrived in Trinidad, British West Indies. A witness was presented
who testified that in 1941 he was working in Trinidad, and that
respondent was working there cooking for American civilians employed by
Walsh and Driscoll Company, a firm engaged in building an Army Base for
the United States Government. There is no corroborating evidence of the
alleged British seaman service. He alleges that he reshipped as a
seaman from Trinidad in 1943. Exhibit 11 in the record is a letter of
the Alcoa Steamship Company, Pier "K' Weehawken, New Jersey, dated June
29, 1944, setting forth that the respondent served as a seaman on
certain vessels as fireman, cook, and wiper, respectively, from June 25,
1943, to June 8, 1944, except shore leave. Other certificates of
discharges presented show seaman service as follows:
November 28, 1944, to December 22, 1944.
May 22, 1945, to May 27, 1945.
May 28, 1945, to July 24, 1945.
Other certificates of discharges show seaman service intermittently
from August 7, 1947, to August 6, 1950 (16 certificates of discharges).
A certificate by the Director of the United States Merchant Marine
Commission, dated April 22, 1947, indicates that the respondent gave
substantially continuous service in that organization from June 25,
1943, to December 12, 1946; and a citation from the President (undated)
indicates service in the Merchant Marine during war. Notwithstanding
data set forth in exhibit 9, supra, the respondent admits that on one
occasion, in the latter part of 1944, he remained ashore in the United
States for a period of two or three months (June to November 1944);
that he was ashore from December 22, 1944, to May 22, 1945, awaiting
work on another ship; that on another occasion he arrived in this
country in July 1945, became ill and required hospitalization and
remained ashore to June or July 1947, during which time he was made the
subject of deportation proceedings on August 23, 1946, and was granted
voluntary departure; and that in the summer of 1947 he remained ashore
about six months while seeking work on another vessel. Although he has
alleged that he was hospitalized in 1945-1946 in a United States Marine
Hospital, no corroborating evidence has been submitted.
Because of the great need for seamen to carry out the program of the
United States and Allied governments on the sea during the period of
World War II, we have recognized seaman service by aliens during such
period in adjudicating applications for relief from deportation. We
have felt that where such service is substantial and meritorious,
maximum relief as a reward or remuneration therefor, should be granted.
This alien has a Certificate of Substantially Continuous Service in the
United States Merchant Marine for the period from June 25, 1943, to
December 12, 1946, issued by the United Maritime Commission, an agency
interested in the seamen program during World War II. He also has a
citation from the President of the United States for courageous service
in the Merchant Marine during the war. This is in addition to service
on British vessels for a period of two years. In view of such
substantial and meritorious service we feel that maximum relief is
warranted.
Order: It is ordered that deportation of the alien be suspended
under the provisions of section 19(c)(2)(b) of the Immigration Act of
1917, as amended.
It is further ordered that if the Congress approves the suspension of
the alien's deportation, the proceedings be canceled and the alien, if a
quota immigrant at the time of entry and not then charged to the
appropriate quota, be so charged as provided by law.
It is further ordered that in the event Congress fails to take action
approving suspension of the alien's deportation, the alien shall be
granted the privilege of voluntary departure at his own expense in lieu
of deportation and that if the alien, after notification, fails to
depart when and as required, the privilege of voluntary departure shall
be withdrawn without further notice or proceedings and the alien shall
be deported from the United States in the manner provided by law on the
charge contained in the warrant of arrest.
In my opinion the facts in this case do not justify granting the
respondent suspension of deportation. His wife and two children live in
China. He has no relatives in the United States. His only contact with
the United States until August 1950 had been as a seaman. Since August
1950 when he deserted his vessel he has remained permanently in the
United States. This in itself would not justify granting suspension of
deportation. However, the majority of the Board relies upon the fact
that from June 1943 until June 1944 and from November 1944 until July
1945 he served on vessels of American registry. Even this service was
intermittent, he having remained ashore from December 1944 until May
1945. Consequently, his entire wartime service on American vessels was
only fifteen months. It is true that he had some service on British
vessels during the war period, but we have never in the past considered
service on Allied vessels outside the United States as a favorable
factor in granting suspension of deportation.
In its final analysis we have a man of Chinese nationality whose wife
and children live in China with no ties in this country, who has lived
here continuously since August 1950 and who had fifteen months sea
service during the war. This does not measure up to the test as laid
down by Congress as a minimum prerequisite of the granting of suspension
of deportation. Consequently, it is my opinion that the application
should be denied.
A majority of the Board of Immigration Appeals has ordered that
deportation be suspended pursuant to section 19(c)(2)(b) of the
Immigration Act of 1917, as amended. For the reasons set forth in the
dissenting opinion of Member Robert E. Ludwig, it is believed that the
application of the respondent for such relief should be denied.
This alien resided in the United States only intermittently prior to
1950, his wife and children reside in China, and he has no family ties
in this country. The facts of this case are not such as to warrant
granting the maximum relief of suspension of deportation.
Request is hereby made that this case be referred to the Attorney
General for review pursuant to the provisions of 8 C.F.R. 6.1(h)(1)(
iii).
The decision and order of the Board of Immigration Appeals in the
above-captioned case, dated August 2, 1955, are sustained.
Expatriation -- Section 401(g), Nationality Act of 1940 -- Entry -- Crime involving moral turpitude -- Breaking and entering with intent to commit larceny, Massachusetts.
(1) A person who was convicted in 1950 by a general court-martial and dishonorably discharged from the United States Armed Forces for desertion occurring in 1945 in time of war, is subject to the expatriating provisions of section 401(g) of the Nationality Act of 1940. The operation of the statute begins with the initial time of desertion, rather than the time of apprehension or conviction. On the other hand, the moment of expatriation occurs when the dishonorable discharge is accomplished.
(2) A person who entered the United States in 1926, derived United States citizenship in 1931 through his father, and was expatriated in 1950, is subject to deportation on criminal charges under section 241( a)(4) of the Immigration and Nationality Act based upon his entry in 1926 as an alien.
(3) Breaking and entering with intent to commit larceny in Massachusetts is a crime involving moral turpitude since moral turpitude inheres in the criminal intent and larceny is a crime involving moral turpitude in Massachusetts.
CHARGE:
Warrant: Act of 1952 -- Section 241(a)(4) -- Convicted after entry
of two crimes involving moral turpitude: Attempted larceny; breaking
and entering with intent to commit larceny (two offenses); larceny;
and receiving stolen property.
Discussion: This case is before us on certification of the special
inquiry officer dated February 15, 1955, in which he held respondent an
expatriate under section 401(g), but terminated the deportation
proceedings on the ground that respondent's convictions took place while
he was a United States citizen.
Respondent was born July 1, 1917, at Prince Edward Island, Canada,
and last entered the United States on February 8, 1926, at Vanceboro,
Maine. He derived United States citizenship through his father's
naturalization on August 10, 1931, while respondent was a minor. On
March 7, 1950, respondent was found guilty by a general court-martial,
sitting at Fort Jay, New York, of desertion from the United States Armed
Forces. According to the record, respondent deserted about March 15,
1945, and was absent until his apprehension on January 27, 1950.
Respondent was sentenced to 10 years' imprisonment at hard labor and a
dishonorable discharge, which occurred on April 7, 1950.
Section 401 of the Nationality Act of 1940 provides as follows:
A person who is a national of the United States, whether by
birth or naturalization, shall lose his nationality by: * * *
(g) Deserting the military or naval forces of the United States
in time of war, provided he is convicted thereof by a
court-martial and as the result of such conviction is dismissed or
dishonorably discharged from the service of such military or naval
forces * * *. (Emphasis supplied.)
Since respondent's desertion occurred prior to the cessation of
active hostilities and surrender /1/ during World War II, his desertion
occurred "in time of war' in accordance with the phraseology of section
401(g). /2/ While a conviction for desertion and a consequent
dishonorable discharge are requirements for loss of citizenship under
section 401(g), the operation of the statute begins with the initial
time of desertion, rather than the time of apprehension or conviction.
On the other hand, the moment of expatriation occurs when the
dishonorable discharge is accomplished. /3/ Hence, respondent became an
expatriate on April 7, 1950, and at the present time is an alien.
Since the deportation charge is convicted after entry (as an alien)
of two crimes involving moral turpitude, the remaining factors in the
case, first, the type of entry last made by respondent and, second, the
crimes involved. Mangaong v. Boyd, 205 F.(2d) 553 (C.A. 9, 1953), /4/
cited by the special inquiry officer, is distinguishable, for Mangaong
entered as a United States national prior to the date of Philippine
independence and was not deportable as an alien, unless he made the
required "entry' as a Filipino alien.
Mangaong, unlike respondent, never entered as an alien. The present
record clearly shows that respondent's last entry was in 1926 as an
alien. The fact that respondent subsequently became a derivative
citizen and continued in that status until 1950 does not change the
character of the respondent's original entry as an alien or his present
status as an alien. /5/
Next we must consider whether the crimes for which respondent has
been convicted involve moral turpitude. On June 16, 1938, respondent
was convicted in the Municipal Court, Roxbury District, Suffolk County,
Massachusetts, on an admission of guilty of attempted larceny of an
automobile valued at $3,000. He was sentenced to three months'
imprisonment in the House of Correction at Deer Island, with the
sentence being suspended on one year's probation, but revoked
subsequently, May 15, 1939. This offense has been held as involving
moral turpitude. /6/
On January 15, 1940, respondent was convicted in the Municipal Court,
Roxbury District, Suffolk County, Massachusetts, of larceny of meat,
valued at $9.60, and sentenced to six months' imprisonment in the House
of Correction at Deer Island. This crime definitely involves moral
turpitude. /7/
On January 15, 1940, respondent was convicted in the Municipal Court
of Roxbury District. Suffolk County, Massachusetts, of receiving stolen
goods and sentenced to six months' imprisonment in the House of
Correction at Deer Island. It has repeatedly been held that the offense
of receiving stolen property is an offense involving moral turpitude, if
(as in the instant case) knowledge of the character of the goods is
present. /8/
On April 9, 1940, respondent was convicted on a plea of guilty in the
Superior Court for Boston, Suffolk County, Massachusetts, of breaking
and entering with intent to commit larceny (not at night) of $1.80 and
eight packs of cigarettes, valued at 15 cents each. He was sentenced to
six months in the House of Correction, Deer Island.
On April 4, 1940, respondent was convicted on a plea of guilty in the
Superior Court for Boston, Suffolk County, Massachusetts, of breaking
and entering with intent to commit larceny (at night) of $2.00 and three
packs of cigarettes, valued at 15 cents each. He was sentenced to six
months' imprisonment, concurrent with the other sentence imposed on the
same day.
The pertinent sections of Chapter 266 of the Laws of Massachusetts
provide as follows:
Section 17. Entering, in nighttime, without breaking, or
breaking, etc., in daytime.
Whoever, in the nighttime enters without breaking, or breaks
and enters in the daytime, a building, ship or vessel, with intent
to commit a felony, the owner or any other person lawfully therein
being put in fear, shall be punished by imprisonment in the state
prison for not more than 10 years.
Section 18. Entering dwelling house in nighttime, or breaking,
etc., without putting in fear, in daytime.
Whoever, in the nighttime, enters a dwelling house without
breaking, or breaks and enters in the daytime, a building, ship or
vessel, with intent to commit a felony, no person lawfully therein
being put in fear, shall be punished by imprisonment in the state
prison for not more than 10 years or by a fine of not more than
$500 and imprisonment in a jail for not more than two years.
While sections 17 and 18 read by themselves do not define a crime
involving moral turpitude, a reading of the conviction record in
conjunction with these statutes serves to make the words "with intent to
commit a felony' more specific. Since moral turpitude inheres in the
criminal intent and larceny is admittedly a crime involving moral
turpitude in Massachusetts, /9/ both of the offenses in question for
which respondent was convicted were definitely crimes involving moral
turpitude.
Since respondent has been convicted of more than two crimes involving
moral turpitude committed after entry, the warrant charge under section
241(a)(4) is sustained. The order of the special inquiry officer is
accordingly reversed as a matter of law and the alien's deportation is
ordered on the warrant charge.
Order: It is hereby ordered that the order of the special inquiry
officer be reversed and the alien be deported from the United States
pursuant to law on the charge stated in the warrant of arrest.
(1) Suspension of hostilities with Germany occurred on May 8, 1945,
with the surrender formalized shortly thereafter. With Japan,
hostilities ended August 14, 1945, and the formal surrender was signed
September 3, 1945 (Pres. Procl. 2651, May 8, 1945, 10 Fed.Reg. 5169;
Pres. Procl. 2660, August 16, 1945, 10 Fed.Reg. 10111). The state of
war with Germany was ended December 31, 1946, although the state of
national emergency continued (Pres. Procl. 2714, section 29, 12 Fed.
Reg. 1, 50 U.S.C. (App.) 601n). Final termination of the German war
came with the signing of the peace treaty and the resteration of Germany
to its place in the family of nations (Pres. Procl., July 25, 1947).
Similar steps relative to the Japanese war came by Pres. Procl. 2974,
April 28, 1952, 17 Fed.Reg. 3813.
(2) See, New York Life Ins. Co. v. Durham, 166 F.(2d) 874 (C.C.A.
10, 1948); Stinson v. New York Life Ins. Co., 167 F.(2d) 233 (C.A. D.
C., 1948); Mutual Life Ins. Co. v. Davis, 79 Ga.App. 336, 53 S.E.2d 571
(1949); National Life & Acc. Ins. Co. v. Leverett, 215 S.W.2d 939 (Tex.
Civ. App., 1948).
(3) Section 1, Act of January 20, 1944 (Public Law 221, 78th
Congress).
(4) Cert. den. November 9, 1953. See also, Gonzalez v. Barber, 347
U.S. 637 (1954).
(5) United States ex rel. Eichenlaub and Willumeit v. Shaughnessy,
338 U.S. 521 (1950). The instant case is somewhat analogous to, though
considerably more persuasive than, the instance of a cancellation of
naturalization and consequent deportation for crimes involving moral
turpitude, committed while the person enjoyed citizenship status (Matter
of W , E-137668, 5, I. & N. Dec. 759, B.I.A., 1954, citing Matter of P ,
A-4068102, 4, I. & N. Dec. 373 (B.I.A., 1951); Matter of B , A-2544646,
5, I. & N. Dec. 405 (B.I.A., 1953); Matter of S , A-8017222, 5, I. & N.
Dec. 678, B.I.A., 1954).
(6) Matter of N , A-1779952, 2, I. & N. Dec. 201, 204 (B.I.A., 1944).
(7) Matter of M , 56205/971, 2, I. & N. Dec. 530, 531 (B.I.A., 1946).
When appellant was convicted of larceny in Massachusetts under section
30 of Chapter 266, Laws of Massachusetts, the maximum penalty was
imprisonment for one year.
(8) United States ex rel. Feuer v. Day, 42 F.(2d) 127 (C.C.A. 2,
1930); United States ex rel. Rydberg v. Reimer, 17 F.Supp. 414 (S.D.
N.Y., 1936); Matter of G , 56158/190, 2, I. & N. Dec. 235 (B.I.A.,
1945). Cf., Tillinghast v. Edmead, 31 F.(2d) 81 (C.C.A. 1, 1929).
(9) United States ex rel. Mongiovi v. Karnuth, 30 F.(2d) 825 (W.D.
N.Y., 1929); United States ex rel. Meyer v. Day, 54 F.(2d) 336 (C.C.A.
2, 1931); United States ex rel. Shladzien v. Warden, 45 F.(2d) 204 (E.
D. Pa., 1930).
Good moral character -- Section 101(f)(2) of Immigration and Nationality Act -- Adultery, Minnesota.
While sexual intercourse between a married man and an unmarried woman does not constitute the crime of adultery under Minnesota criminal statutes, such intercourse is adultery under the statute regulating divorce. Since the determination of an individual's good moral character in a deportation proceeding for the purpose of granting discretionary relief is a civil, not a criminal matter, the civil definition of adultery applies and a person within this category is precluded from establishing good moral character under section 101(f)( 2) of the Immigration and Nationality Act.
CHARGE:
Warrant: Act of 1924 -- Remained longer -- Student.
Discussion: The facts in this case have been stated at length by the
special inquiry officer in an opinion of April 29, 1955, and by the
Acting Regional Commissioner, Northwest Region, in a separate opinion of
May 18, 1955. The special inquiry officer ordered suspension of
deportation for respondent on the ground that his deportation would
result in exceptional and extremely unusual hardship to him and to his
United States citizen spouse and his two children, one by his present
marriage, and one by a prior marriage. The Acting Regional Commissioner
found that discretionary relief must be denied respondent on the ground
that he has not established good moral character during the past seven
years. Due to the difference of opinion between these two officers, the
case was certified to this Board for decision as provided in 8 C.F.R.
6.1(c).
We will not restate the case in detail. The respondent, a native of
Turkey, national of Greece, 33 years of age, made only one entry into
the United States. He was admitted on November 20, 1946, as a student
under section 4(e) of the Immigration Act of 1924, as amended. His last
extension of stay in the United States expired on August 16, 1948, and
he has remained in the United States in deportable status since that
time. On December 31, 1948, he married a United States citizen.
Respondent was entitled to a preference quota visa at that time because
of his marriage to a United States citizen, and if granted the privilege
of voluntary departure and preexamination, could have obtained an
immigration visa under the quota to which he was chargeable. However,
he objected to the cost of departure to Canada under this procedure, and
he declined to leave at that time. The Assistant Commissioner,
Adjudications Division, Immigration and Naturalization Service, ordered
suspension of deportation for the alien under section 19(c)(2) of the
Immigration Act of 1917, as amended, on April 26, 1951. However,
Congress rejected this case for suspension in accordance with a policy
to deny suspension when the alien might be issued an immigration visa
abroad in accordance with the standard statutory procedure. Therefore,
on November 28, 1952, the Chairman of the Board of Immigration Appeals
and the Assistant Commissioner, Immigration and Naturalization Service,
acting together, granted respondent voluntary departure from the United
States. Respondent did not depart from the United States under this
grant. A bill in his behalf was introduced in Congress on July 30,
1954, but apparently no action was taken on this measure.
It has been the policy of the Department of Justice and of this Board
not to resubmit to Congress cases which have been once rejected for
suspension. This case was submitted to Congress under the Immigration
Act of 1917 which was somewhat more lenient in several of its provisions
than the present Immigration Act of 1952. Respondent's situation has
not changed since that time in any way so as to make his case more
appealing to Congress. It is true that he did not at that time have a
child, but he did have a United States citizen wife. The present
controversy as to his moral character had not yet arisen. Therefore,
for the reason of this well-established policy alone, we would not
resubmit this case to Congress with a request for suspension even if the
other unfavorable factors were not present.
Under the present law respondent is nonquota by reason of his
marriage to a United States citizen; if it were not for his
extra-marital affairs, he would have no difficulty in adjusting his
immigration status in the United States by departing voluntarily,
obtaining a nonquota visa and reentering according to law.
To be eligible for suspension of deportation respondent must
establish that during the seven years preceding his application for
suspension he was and is a person of good moral character (section 244(
a)(1)). To be eligible for voluntary departure he must make a similar
showing "for at least five years immediately preceding his application
for voluntary departure' (section 244(e)).
Section 101(f) of the Immigration and Nationality Act declares that
no person shall be regarded as, or found to be a person of good moral
character who, during the period for which good moral character is
required to be established is or was one who during such period
committed adultery. It is stated in the opinions of both the special
inquiry officer and the Acting Regional Commissioner that under
Minnesota statutes, sexual intercourse between any man and a single
woman does not constitute adultery but constitutes fornication, a lesser
crime, that there is no evidence in the record that the women, other
than his wife with whom respondent had sexual relations were married to
other men, and therefore respondent is not precluded from establishing
good moral character. The special inquiry officer then found respondent
to be of good moral character and recommended a grant of suspension.
The Acting Regional Commissioner found respondent to be not of good
moral character aside from the specific provisions of section 101.
A study of the pertinent Minnesota statutes and cases persuades us
that respondent did commit adultery even under the local law and is
precluded from establishing good moral character. There are two
concepts of adultery in that jurisdiction -- one civil and one criminal.
The Criminal Code for the State of Minnesota, Volume 40, Minn. Statutes
declares:
617.15. When any married woman shall have sexual intercourse
with a man, other than her husband, whether married or not, both
shall be guilty of adultery and punished by imprisonment in the
state prison for not more than two years, or by a fine of not more
than $300.
617.16. Fornication -- When any man and single woman have
sexual intercourse with each other, each is guilty of fornication
and shall be punished by imprisonment in the county jail for not
more than 90 days, or by a fine of not more than $100.
While sexual intercourse between a married man and an unmarried woman
does not constitute the crime of adultery in Minnesota, such intercourse
is adultery within the statute regulating divorce. This rule is stated
Vol. I, Dunnell Minn. Digest, 3d ed., par. 102, page 123, and at Vol VI,
same par. 2775, page 96. The Supreme Court of Minnesota so held in
State v. Armstrong, 4 Minn. 251, 335, saying:
When regarded in a civil light, as a violation of the marriage
contract, no distinction is made between an illicit connection by
a married man with a married or an unmarried woman. In either
case, for the purpose of a divorce, he is guilty of adultery.
Pickett v. Pickett, 27 Minn. 299 (1880), followed this rule, stating:
There may be a reason for giving the word a restricted meaning
in the statute punishing the act as a crime and which treats the
act as one affecting the peace and good order of society, while
the popular and more enlarged meaning is intended in the statute
prescribing causes for divorce where the act is treated as one
affecting the rights of husband and wife. * * * Sexual
intercourse by the husband with an unmarried woman is as much a
violation of the (marriage) contract and of the rights of the wife
as it would be if committed with a married woman. The word
"adultery' in its popular sense, would include this violation of
the contract, whether committed with a married or an unmarried
woman.
In Arp v. Arp. 229 Minn. 6 (June 10, 1949), it was admitted that the
plaintiff had committed adultery, and the report shows that the
"adultery' in that case was his living with an unmarried woman while he
was still married to his first wife. After he was divorced he and his
paramour were married. He did not even advance the contention that his
living with an unmarried woman was not adultery. We conclude that the
rule of Pickett v. Pickett is the law in Minnesota today in civil cases.
We are concerned with a civil, not a criminal matter, in determining
respondent's good moral character for the purpose of granting
discretionary relief from deportation, and we will use the civil
definition of adultery rather than the criminal definition.
Respondent's relations with unmarried women are as much a violation of
the concept of "good moral character' as if the participating partners
were married women. Therefore, it is our opinion that under the law of
Minnesota respondent has committed adultery within the meaning of
section 101(f) of the Immigration and Nationality Act and, therefore, we
cannot find him to be a person of good moral character during the past
seven years. For this reason, in addition to the fact that the case has
already been rejected by Congress for suspension of deportation, the
special inquiry officer's order must be withdrawn.
Even if the law were not as we have described it, we conclude that on
general grounds, as set forth by the Acting Regional Commissioner,
respondent's conduct does not satisfy the requirements of statutory and
case law defining good moral character. The record shows that a
daughter by his first wife was born September 1, 1952. Another child by
a paramour was conceived approximately the same time his first child was
born, but because the mother went away and has not corresponded with
him, he does not know whether the second child lived or not.
Respondent's son by his present wife was conceived several months before
their marriage and was born on October 23, 1954. Therefore, the record
establishes that respondent sired three children by three different
women, in approximately two years and two months, two of which were
conceived out of wedlock. In addition, there was at least one other
affair. Respondent has discussed quite freely what he terms his
"romances.' He maintains that the affairs described in the record
discovered by the Immigration and Naturalization Service are the only
ones he has had, both before he came to the United States and since he
has been here. He asserts that his behavior during this period resulted
from trouble with his first wife and her mother, and that the girl in
each case was the aggressor, that he was pursued and seduced, being
naive and unsophisticated. He admits that he was approximately 30 years
of age during this period and the girls were all between 18 and 20, and,
except for his first wife, either students or former students of his at
the University of Minnesota.
In his oral statement before this Board and also during his
immigration hearings respondent described incidents in which he assisted
students at the University who were having difficulties with their
studies or private problems to become better adjusted. Apparently this
was part of his responsibility as a student counselor. Furthermore, we
note in each instance he mentioned that the student was a girl.
The record contains affidavits and the testimony of friends and
acquaintances that respondent is a person of the highest moral calibre.
Several faculty members and his first wife testified as to his good
reputation. The irresponsibility of his actions defeats the statements
of his character witnesses.
Respondent states that he is unable to return to Greece, because he
is under an indictment for failing to return to report to the army when
he was called up for military service on June 30, 1947. An exhibit in
the record from Athens dated December 1, 1954, states that he has been
registered as one who is "unsubdued' and that refusal to respond to
draft in wartime is punishable by death by court martial, and, in case
of alleviating circumstances, by terms of prison up to five years.
Respondent states that he did not return to Greece in response to the
draft call because he had understood by that time that his immigration
status would be adjusted in the United States, and he would be permitted
to remain here permanently and become a citizen. He was called up in
1947. He did not marry a United States citizen until December 31, 1948,
and he was not granted suspension of deportation until April 26, 1951.
Therefore, his belief as early as 1947 that he would achieve adjustment
of status in the United States appears to have been unfounded. It is
noted also that he has never registered in the United States under the
Selective Service Act. He states that at one time he inquired of
"somebody at the University,' with regard to his obligation to register
and "he was not clear of my status with the immigration, so he proposed
I wait.' Apparently, he made no inquiry of any responsible authority as
to his duty to register under the Selective Service Act.
Under section 243(h) of the Immigration and Nationality Act the
Attorney General is authorized to withhold deportation of an alien when
in his opinion the alien would be subject to physical persecution if he
were deported to that country. We have no authority to make
determinations under this provision, but the alien is permitted a
hearing on this subject before the Immigration and Naturalization
Service. It should be noted, however, that "physical persecution'
generally would not include indictment or sentence by a lawfully
constituted authority in his native country for a crime committed under
the laws of that state.
Having committed adultery under the law of the jurisdiction wherein
he is resident, respondent is precluded by law (section 101(f)(2) of the
Immigration and Nationality Act) from establishing good moral character.
Even if the law of Minnesota were not clear on the subject, we would
find respondent not to be of good moral character because of his
extra-marital activities within the past seven years. In addition, his
application for suspension of deportation has been denied by the
Congress on one occasion; such cases are not resubmitted, except under
extraordinary circumstances, which do not exist here. In order to merit
a grant of voluntary departure the alien must show good moral character
for the past five years (section 244(e), Immigration and Nationality
Act). He cannot make this showing for the same reasons that he cannot
show good moral character for the past seven years. For all of these
reasons respondent is not eligible for suspension of deportation or for
voluntary departure.
Order: It is ordered that the order of the special inquiry officer
of April 29, 1955, be and the same is hereby withdrawn.
It is further ordered that the alien be deported from the United
States in the manner provided by law on the charge contained in the
warrant of arrest.
Nonimmigrant -- Effect of introduction of private bill on nonimmigrant status.
(1) The introduction in the Congress of a private bill to obtain for a nonimmigrant alien the status of an immigrant lawfully admitted for permanent residence is prima facie evidence of an intention by such alien to abandon residence in a foreign country, and, therefore, to violate nonimmigrant status.
(2) Before deportation proceedings are commenced, however, as a matter of policy such an alien should be given opportunity by due notice to take steps to withdraw the private bill, or, if he chooses not to take such steps, to leave the United States voluntarily.
CHARGE:
Warrant: Act of 1952 -- Failed to maintain status -- Vistor for
pleasure.
Discussion: This case is before us on certification. The special
inquiry officer ordered termination of the proceedings. The Acting
Regional Commissioner for the Southeast Region certified the case to
this Board. We find that the decision of the special inquiry officer
was proper.
Respondent is a 29-year-old married female, a native and citizen of
Spain. In 1953, S G A , a native, citizen, and resident of the United
States and instructor of Spanish at Princeton University, was traveling
abroad. He met respondent. On September 3, 1953, they were married.
The following day he returned to the United States to fulfill his
obligations to the University, but he immediately made preliminary
arrangements to obtain a nonquota immigrant visa for his wife so that
she could come to the United States and make her home with him. Early
in November 1953 respondent was informed by the American consulate that
she had been found admissible for permanent residence in all respects
except for the fact that she was afflicted with tuberculosis.
Respondent produced some evidence that she was in an arrested state but
was unsuccessful in having the disqualification removed. Immediately
after the realization that she could not obtain an immigrant visa, she
applied for a nonimmigrant visa and, after receiving a waiver of the
excludable condition from the Service, acting for the Attorney General,
she was issued a nonimmigrant visa on December 31, 1953, entitling her
to enter as a temporary visitor for pleasure. On January 4, 1954, she
was admitted to the United States as a temporary visitor for a six-month
period. Her physician in the United States told her the condition was
inactive. He prescribed no treatment for it, but she visited him
regularly. She states her condition is still inactive.
On January 17, 1955, while she was still in a legal status, her stay
having been extended, Bill H.R. 2494, 84th Congress, 1st session, was
introduced to provide that upon the bill becoming law, the respondent
was to be considered as having been lawfully admitted to the United
States for permanent residence. The next month, on February 3, 1955,
she was granted an additional extension of stay to June 30, 1955. This
extension was never specifically revoked and no specific termination or
revocation of the temporary admission was made. However, on March 31,
1955, a warrant of arrest was issued and she was placed under
deportation proceedings. Hearings were held and concluded on April 13,
1955.
It is the Service contention that the introduction of a private bill
on an alien's behalf with his knowledge and actual or implied consent,
is inconsistent with the maintenance of a nonimmigrant status and is,
therefore, a violation of that status. It is argued that the
introduction of a private bill is such a strong and affirmative action
to remain in the United States permanently that without any further
evidence it must be found that the alien concerned will not depart from
the United States when the period of authorized stay expires. /1/
The alien testified fully and freely. She stated that she desires to
remain in the United States for as long as she legally can do so. She
stated that she had no intention to violate the laws and regulations of
the United States; that she knew she would not be allowed to stay in
the United States permanently in connection with her admission since it
authorized her stay for a temporary period only, and that she has the
funds with which to effect her departure from the United States if that
becomes necessary. She stated she had never been employed in the United
States.
The special inquiry officer in terminating proceedings found the
respondent desired to stay in the United States as long as she legally
may. He stated, she "desired to have her status changed from that of a
temporary nonimmigrant to one of a permanent nature, she still intends
to comply with the immigration laws. It would appear from her testimony
and the evidence of record, that the respondent has not violated her
status as a nonimmigrant visitor, and is not subject to deportation on
the charge stated in the warrant provided for her arrest.'
While we believe that the introduction of a private bill may be
evidence of an intent to violate status and when considered with other
evidence can be sufficient to sustain a charge such as that in the
warrant of arrest, we feel that in the instant case to conclude that the
respondent would violate the terms of her admission would be an
assumption based upon suspicion and surmise. Here the record
establishes that the respondent desired and attempted to come to the
United States as an immigrant prior to the time she made application for
a nonimmigrant visa. Although this fact was known to the consul and to
the Service and although the record established that at the time she
applied for a nonimmigrant visa and waiver of the ground of
inadmissibility, she was married to a United States citizen whose
permanent home was in the United States and that she intended to make
her home with him, it is not urged that she was ineligible for the
issuance of a visa, or ineligible for admission to the United States, or
that she was not entitled to the waiver which may be given only to
nonimmigrants. Furthermore, it is not urged that she was not entitled
to extensions of stay because she had desired to come to the United
States for permanent residence and was making her home in the United
States with her husband.
It is conceded by all that the respondent was properly admitted as a
nonimmigrant and that until the time a private bill was introduced in
her behalf she was maintaining her status as required by the law and
regulations. Since neither the State Department nor the Service, with
knowledge of her efforts to come to the United States for permanent
residence, felt constrained to regard her as an immigrant, we fail to
understand the emphasis now placed upon the private bill. It added no
more to this case than existed when respondent applied for a nonquota
visa for permanent residence to join her United States citizen resident
spouse -- the situation which existed before she made application for
and received her visa for temporary stay. Both her effort to get an
immigrant visa and the introduction of the private bill show a desire to
stay, but neither of those facts necessarily shows an intention to
violate the immigration laws. Taking into consideration respondent's
natural desire to remain in the United States; the action taken by her
husband to obtain for her the right to reside with him; and her
uncontradicted testimony that she intends to abide by the terms of her
admission, we do not find that the Service has borne the burden of
establishing by reasonable, substantial and probative evidence that the
respondent does not intend to abide by the terms of her admission. /2/
Finally, the Service argues that Congress has expressed the intent
that a nonimmigrant who seeks adjustment of status to that of an
immigrant admitted for permanent residence should because of the mere
fact of seeking adjustment of status give up his nonimmigrant status.
Section 245(a) of the Immigration and Nationality Act is pointed to as
authority for this conclusion. Section 245(a), supra, permits
adjustment of status of nonimmigrants to that of a person admitted for
permanent residence under certain circumstances. It provides: "Any
alien who shall file an application for adjustment of his status under
this section shall thereby terminate his nonimmigrant status.' The
argument although persuasive on the surface does not stand up upon
examination.
Congress did no more than impose a condition to the making of an
application under section 245. This condition -- termination of status
-- is nowhere found expressed either legislatively or administratively
as the effect which must follow the filing of a private bill. Even if
Congress intended that an alien applying to it for relief should be
deprived of status for that reason alone, its intent has not been
translated into law. The language of section 245 specifically referring
to the filing of an application for administrative relief can by no
stretch of the imagination be made applicable to the introduction of a
private bill seeking legislative assistance.
While we are on the subject of section 245, an important matter
should be pointed out. Congress conditioned the acceptance of an
application under section 245 upon the alien surrendering his temporary
status. Any alien who makes such an application is charged with notice
that he is placing himself in an illegal status. As we have pointed
out, no notice of general circulation has been given by legislation or
by the Service informing aliens legally in the United States and in a
nonimmigrant status that if they permit bills to be introduced in their
behalf they will by reason thereof be considered illegally in the United
States. In fact, until recently it does not appear that the Service was
of the view that such result followed the introduction of a bill. It
thus is apparent that many aliens have permitted bills to be introduced
with every reason to believe that their status would not be jeopardized.
Yet, information as to the present Service view is more important to an
alien who permits a private bill to be filed on his behalf than one who
files under section 245. For, filing an application under section 245
does not necessarily subject the alien to arrest and the expense and the
tension of a warrant hearing even if unfavorable action is taken; and
if proceedings are instituted they are not commenced until after
unfavorable action is taken upon his application (8 C.F.R. 245.17(e);
242.41). But, where a private bill is involved, it appears to be the
determination of the Service immediately to institute warrant
proceedings and prosecute formal hearings to completion without awaiting
the outcome of action upon the private bill, even though the alien was
in all respects maintaining his status. Moreover, if the instant case
is expressive of Service intentions, warrant proceedings will be
instituted without notifying the aliens that the Service considers their
status has been terminated by the introduction of a private bill and
without giving them an opportunity to remain for the period of their
otherwise authorized stay or to depart voluntarily.
We do not believe a change should be made in the order of the special
inquiry officer.
Order: It is ordered that no change be made in the order of the
special inquiry officer.
(1) It is added that in the instant case the respondent's attempt to
obtain an immigrant visa before she entered, the fact that her husband
is a resident of the United States and his permanent home is maintained
here were additional factors requiring the conclusion that the
respondent has violated the nonimmigrant status in which she had been
admitted to the United States.
(2) See, Chryssikos v. Commissioner of Immigration, 3 F.(2d) 372 (C.
C.A. 2, 1924); United States ex rel. Jolly v. Reimer, 10 F.Supp. 992
(D.C., S.D.N.Y., 1935); United States ex rel. Rizzo v. Curran, 13 F.(
2d) 233 (D.C., S.D.N.Y., 1925); United States ex rel. Squillari v.
Day, 35 F.(2d) 284 (C.C.A. 3, 1929).
Discussion: This case relates to a 29-year-old female, a native and
citizen of Spain. While in France she married a citizen and resident of
the United States on September 3, 1953, and thereafter applied for an
immigrant visa to enter this country for permanent residence. The visa
was refused on the ground that she was afflicted with tuberculosis.
Nevertheless, a nonimmigrant visa was issued to her and on January 4,
1954, she was admitted as a temporary visitor for six months. Her stay
was extended to June 30, 1955. She has been living with her husband in
the United States since her entry.
A private bill (H.R. 2494, 84th Congress, 1st session) was introduced
on her behalf and with her knowledge and consent on January 17, 1955.
The bill provides that upon enactment she will be considered to have
been lawfully admitted for permanent residence as of the date of
enactment.
Deportation proceedings were instituted by the issuance of a warrant
of arrest on March 31, 1955, on the charge that after admission as a
visitor she failed to maintain the nonimmigrant status in which she was
admitted. The special inquiry officer ordered the proceedings
terminated but certified the case of the Regional Commissioner,
Southeast Region. The Regional Commissioner certified the case to the
Board which ordered that no change be made in the order of the special
inquiry officer.
It is the view of the Service that the introduction of a private bill
to adjust the status of a nonimmigrant to that of a permanent resident
at the request, or with the knowledge and consent, of the alien evinces
and intention to remain permanently in the United States and constitutes
a violation of the nonimmigrant status. Arguments presented orally to
the Board are contained in the file and will be only briefly summarized
here.
The respondent is married to a citizen and resident of the United
States and admittedly she wishes to remain here with him. By section
101(a)(15)(B) of the Immigration and Nationality Act, the class of
nonimmigrant with which we are here concerned is defined 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 or temporarily for pleasure.' Among the conditions of admission
is the requirement that the nonimmigrant will depart from the United
States within the period of his admission or any authorized extension
thereof (8 C.F.R. 214.2(b)).
When an alien visitor manifests an intention to remain permanently in
the United States he must be considered an immigrant and not a
nonimmigrant (United States ex rel. Feretic v. Shaughnessy, 221 F.(2d)
262 (U.S.C.A. 2, 1955) /*/ ; Matter of Z , A-3533233, 3, I. & N. Dec.
379 (A.G., 1948)). Deportability may be established by conduct and
activity of the alien after entry which make evident an intention to
violate status (Matter of B , 0300/466229, Int. Dec. No. 615, B.I.A.,
1954). The evidence is sufficient to establish deportability in this
case.
With her knowledge and consent a private bill was introduced in
Congress to authorize her to remain in the United States permanently.
Irrespective of her testimony, it is apparent that she will not depart
from the United States before final action is taken on the bill even
though such period extends beyond the date of her authorized extension.
By consenting to the introduction of this bill, she has demonstrated an
intent to remain permanently in the United States and to abandon her
residence in the foreign country. We have here not merely the
expression of a desire to return for permanent residence sometime in the
future but conduct establishing an intent to remain permanently in the
United States now. Her conduct is entitled to greater evidentiary
weight than her words.
Congress apparently considered that an alien could not consistently
make application for adjustment of status to that of a permanent
resident and still maintain a nonimmigrant status. Under the provisions
of section 245 of the Immigration and Nationality Act, nonimmigrant
status is terminated by the filing of an application for relief under
that section. An alien who intends to remain permanently in the United
States cannot be classified as a temporary visitor, and an alien may not
be both an immigrant and a nonimmigrant at the same time.
Because of the importance of the question presented in the
administration of the immigration laws, it is believed that this case
should be submitted to the Attorney General for review.
Request is hereby made to the Board of Immigration Appeals that this
case be referred to the Attorney General for review in accordance with
the authority contained in 8 C.F.R. 6.1(h)(1)(iii).
(*) EDITOR'S NOTE: cert. den. 350 U.S. 822 (1955).
Discussion: On July 8, 1955, we entered an order holding that the
action of the special inquiry officer in terminating proceedings was
proper. The Commissioner requests that we certify this matter to the
Attorney General for review. The facts have been fully stated in the
Board order of July 8, 1955.
The issue is whether an alien who concededly was a bona fide
temporary visitor at the time of admission and concededly maintained
that status after admission violates nonimmigrant status by the mere
fact that with consent of the alien a private bill is introduced to
change the current nonimmigrant status to that of one admitted for
permanent residence. The Service contends that the introduction of the
bill raises an irrefutable presumption that the alien has abandoned
nonimmigrant status. We ruled that the mere fact of the introduction of
a private bill was not a violation of nonimmigrant status for it did not
violate any law or regulation and the inference from such an action was
not such as to lead only to the conclusion that the alien intended to
violate nonimmigrant status. We concluded that careful evaluation of
all the facts must be made to determine an alien's intentions and held
with the special inquiry officer that in the instant case the record
established that the alien was continuing to maintain the nonimmigrant
status in which she had been admitted. We, therefore, held termination
of proceedings was proper.
The Commissioner's motion cites several cases which stand for general
propositions with which we are in full agreement. However, they concern
situations not presented here. Matter of Z , A-3533233, 3 I. & N. Dec.
379, and United States ex rel. Feretic v. Shaughnessy, 221 F.(2d) 262
(C.A. 2, 1955), are clearly distinguishable since both relate to aliens
who failed to establish that they were bona fide nonimmigrants at the
time they applied for admission. Here the Service concedes that the
alien was a bona fide nonimmigrant at the time of applying for admission
and that she maintained her status until a private bill was introduced
on her behalf. Furthermore, the cases cited go into a careful
evaluation of evidence to determine what was the alien's intention as to
immigration. No effort was made to create an irrefutable presumption
from one isolated fact subject to several interpretations. Matter of B
, 0300/466229, Int. Dec. No. 615, cited in the motion is distinguishable
since it involves actions and testimony by a temporary visitor which
clearly reveal an intent to violate regulations against the engaging in
employment by temporary visitors. The action in the instant case, in
having a private bill introduced, in view of the testimony existing here
does not reveal an intent to violate any law or regulation.
The Service motion points out that the definition of a nonimmigrant
requires that he have a residence in a foreign country which he has no
intention of abandoning and that he be visiting the United States for
business or pleasure. Our original order points out that the
introduction of the private bill added nothing to what both the State
Department and the Service knew about the alien when her nonimmigrant
visa was issued, when she was admitted, and when she was granted
extensions of stay. If, as is conceded, she was a bona fide visitor on
all these occasions, the introduction of the bill changed nothing. It
should further be noted that the definition is a restatement of what was
in effect the law prior to the passage of the Immigration and
Nationality Act (Senate Report No. 1137, 82d Cong., 2d sess., p. 19,
par. b), and that the Assistant Commissioner points to no previous
administrative ruling creating an irrefutable presumption that the
filing of a private bill terminated an alien's temporary status in the
United States.
Order: At the request of the Assistant Commissioner, Examinations
Division, Immigration and Naturalization Service, and in accordance with
Title 8, Code of Federal Regulations, section 6.1(h)(1)(iii), the case
is certified to the Attorney General for review of the Board's decision.
Included in the definition of "nonimmigrant' in the Immigration and
Nationality Act of 1952 is 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 or temporarily for pleasure.' The
introduction in the Congress of a private bill to obtain for such an
alien the status of immigrant lawfully admitted for permanent residence
is prima facie evidence of an intention by such alien to abandon
residence in a foreign country, and, therefore, to violate nonimmigrant
status.
Before deportation proceedings are commenced, however, as a matter of
policy it is desirable that such an alien first be given opportunity, by
due notice, to take such steps as are necessary to withdraw the private
bill, or, if he chooses not to take such steps, to leave the country
voluntarily. This is now the practice of the Immigration Service. It
appears, however, that no such notice or opportunity was given the alien
in the instant case.
From all the facts and circumstances, the Board of Immigration
Appeals has resolved the question of intent in favor of the alien. In
this conclusion, I concur.
Order: The issue presented in this case is one of whether the record
supports a conclusion that the alien intended to change her status from
that of nonimmigrant to immigrant, thereby forfeiting her temporary
legal residence in the United States when she acquiesced in efforts made
in her behalf to obtain for her the status of permanent resident through
the enactment of private legislation. The Board of Immigration Appeals
decided that the record does not establish that she had such an
intention, and therefore does not support the conclusion.
Expatriation -- Section 401(c) of Nationality Act of 1940 -- Executive Agreement between United States and Mexico.
A United States national who voluntarily enlisted in the Mexican Navy in 1944 thereby lost his United States nationality pursuant to section 401(c) of the Nationality Act of 1940 notwithstanding Executive Agreement No. 323 of January 22, 1943, between the United States and Mexico, since that agreement was a working arrangement relating to draft registration and subsequent military service and was not designed to limit the freedom of the individual.
EXCLUDABLE:
Act of 1952: Section 212(a)(20) -- No immigrant visa or passport.
Section 212(a)(22) -- Departed from or remained outside the United
States to evade and avoid military service.
Discussion: This case is before us on appeal from the decision of a
special inquiry officer dated March 28, 1955, holding appellant an
expatriate under section 401(j) of the Nationality Act of 1940 and
excluding him on the above-stated grounds. Appellant sought admission
to the United States at San Ysidro, California, on February 16, 1955, in
order to live with his brother in California.
Appellant acquired United States citizenship at birth at Riverside,
California, on November 22, 1923. In 1929 or 1930, appellant and his
two brothers were taken to Mexico by their parents, via Nogales,
Arizona, and began living in Santiago, Conguipo, Michoacan, Mexico.
Appellant's family continued to live in that locale up to the present
time, except in about 1938 or 1939, when appellant lived in Mexico City.
Appellant reached his 18th birthday on November 22, 1941, and in July
1943, he entered this country at El Paso, Texas, as a contract laborer,
alleging Mexican birth. In January 1944, he departed to Mexico in
accordance with his contract, but reentered surreptitiously in October
1944 near Calexico, California. Four days later, he was apprehended by
the Immigration Service at Colton, California, and he again claimed
Mexican birth.
Appellant was granted voluntary departure at San Ysidro, California,
on November 9, 1944. Later that month, he enlisted in the Mexican navy
and reenlisted in 1947, 1950, and 1953. In 1954, he was discharged upon
his own request.
Expatriation under section 401(j) of the Nationality Act of 1940
occurs when the evidence shows that the citizen had a desire to come to
the United States, but was deterred in his resolve primarily by
reluctance to serve in our armed forces (Matter of M , A-6690283, 2, I.
& N. Dec. 910 (B.I.A., 1947)). Expatriation under this section may also
occur if it is shown that the citizen's main intention in departing from
the United States was to evade and avoid military service. Hence, the
issue in the present case is whether appellant departed from the United
States to evade and avoid military service on November 9, 1944.
While appellant admits concealing his United States birth in
connection with his admission as a bracero in 1943 and his reentry,
followed by his apprehension by the Immigration Service which culminated
in voluntary departure, he denies knowing of his obligation to register
either in this country or at an American consulate in Mexico and the
statutory requirement that he serve in our armed forces. Since the
finding of expatriation cannot be founded on mere conjecture and because
there is no justification for disbelieving appellant's testimony, we
conclude that he did not expatriate himself under section 401(j) by
departing from the United States to evade and avoid military service on
November 9, 1944. /1/
However, even though appellant is not expatriated under section 401(
j), section 401(c) of the Nationality Act of 1940 is also pertinent
here. /2/ While section 401(c) makes service in a foreign army a
self-operating act of expatriation, it has been held that the Executive
Agreement No. 323, between the United States and Mexico dated January
22, 1943, /3/ had the force of law. Hence, it provided an exemption
from loss of citizenship through Mexican military service, as a result
of the statutory phraseology of section 401(c) (Matter of K G , 56158/
676, 2, I. & N. Dec. 243 (A.G., January 29, 1945)). /4/
While this agreement was in effect in November 1944, /5/ when
appellant voluntarily enlisted in the Mexican navy, it did not relieve
him of the consequences of his admittedly voluntary act. Since
paragraph one of Executive Agreement No. 323 covered nationals resident
within the territory of the other country, who may be registered and
inducted into the armed forces of the country of their residence,
appellant as a person voluntarily enlisting in the Mexican navy was not
included by its very terms, for the agreement was not designed to limit
the freedom of the individual, but rather as a working arrangement
between governments relating to draft registration and consequent
military service.
Since appellant testified that he enlisted voluntarily in the Mexican
navy in 1944, he clearly expatriated himself under section 401( c).
Moreover, because appellant was an alien at the time of his last
application for admission and was not in possession of the required visa
or passport, the ground of exclusion under section 212(a)(20) is
supported.
However, with regard to the ground of exclusion under section 212(
a)(22), on the basis of our conclusion that appellant did not realize
that he was obligated to register and serve in the United States armed
forces, it is concluded that appellant did not depart from or remain
outside the United States to evade and avoid military service within the
meaning of section 212(a)(22). Hence, this latter ground of exclusion
is not sustained, and the appeal must be dismissed solely with regard to
the ground of exclusion under section 212(a)(20).
Order: It is hereby ordered that the appeal be dismissed, solely
with regard to the ground of exclusion under section 212(a)(20).
(1) Since the burden of proof of expatriation is on the Government to
establish that the citizen departed from the United States for the
reasons set out in the statute, the evidence of record must be clear and
convincing on this point in order to support a finding of expatriation
(Acheson v. Maenza, 202 F.(2d) 453 (C.A. D.C., 1953)).
(2) Section 401. A person who is a national of the United States,
whether by birth or naturalization, shall lose his nationality by: * *
*
(c) Entering, or serving in, the armed forces of a foreign
state unless expressly authorized by the laws of the United
States, if he has or acquires the nationality of such foreign
state.
(3) Executive Agreement No. 323 provides, in part, that:
1. The nationals of either country resident within the
territory of the other may be registered and inducted into the
armed forces of the country of their residence on the same
conditions as nationals thereof unless otherwise provided herein.
(Executive Agreement No. 323 State Department .)
(4) On the basis of such authority as United States v.
Curtiss-Wright Export Corp., (299 U.S. 304, 1936), United States v.
Belmont (301 U.S. 324, 1937), and United States v. Pink (315 U.S. 203,
1942), it was held that Executive Agreement No. 323 "should be regarded
as having the force of law, and since it expressly authorizes the
drafting of our nationals, the appellant's military service in Mexico in
1943 is to be regarded as "expressly authorized by the laws of the
United States'.' For that reason, no expatriation could occur under
section 401(c).
See also, Matter of V L , 1603/21334, 5, I. & N. Dec. 497 (B.I.A.,
October 23, 1953), in which the Board concluded that Executive Agreement
No. 323 also served to forestall the effect of section 401(b) on a
person's status as a United States citizen.
(5) The expiration date of Executive Agreement No. 323 was set at six
months after the termination of the Japanese war (World War II) or six
months after April 28, 1952 (Pres. Procl. 2974; 17 Fed.Reg. 3813).
Matter of L C , 1611-10434, B.I.A., March 23, 1955 (unreported).
Certificate of citizenship -- Section 341 of 1952 Act -- Blood test requirement -- 8 C.F.R. 10.1.
In the absence of documentary evidence of their claims to United
States citizenship, applicants for certificates of citizenship under
section 341 of the 1952 act may be required to submit to blood tests to
verify their claims notwithstanding the fact that they were previously
admitted to the United States as citizens thereof.
Discussion: These cases are on appeal from the decision of the
District Director, Seattle, Washington, dated May 9, 1955, denying the
applications for certificates of citizenship because of lack of
documentary evidence of citizenship and failure to submit blood tests as
corroborating evidence.
Applicants claim to have been born in Canton City, China. Applicant
C W M alleges birth on July 20, 1929, applicant C Y M claims birth on
September 15, 1930, applicant C S M claims birth on January 10, 1932,
and applicant C K M claims birth on October 10, 1937. They claim that
they acquired United States citizenship at birth through their father, H
M , who was born in the United States, had resided in the United States
and had not been expatriated prior to the applicants' births.
The applicants were last admitted to the United States at San
Francisco, California, on October 10, 1950. After a hearing by a board
of special inquiry it was concluded at that time that they had
satisfactorily established their relationship to the person through whom
they were claiming citizenship and they were admitted as United States
citizens. Thereafter they filed their applications for certificates of
citizenship which are presently under consideration. Confidential
information has been received by this Service indicating the possibility
of fraud. In view thereof and because of the lack of documentary
evidence of citizenship the applicants and their parents were requested
to submit to blood tests. They have refused to comply with such
request.
The sole issue involved in this case is whether an application for a
certificate of citizenship may be denied where there is no documentary
evidence of citizenship and the applicant refuses to undergo a blood
test despite the fact that there was a prior administrative holding to
the effect that the applicant was a citizen of the United States.
In behalf of the applicants it has been contended by counsel that a
prior adjudication of citizenship constitutes a prima facie case and
must stand as determinative of the status of the applicant involved
unless new evidence of a substantial character is presented. However,
it is also well established that the Service is not bound by prior
actions of local officers in admitting aliens into the United States
(See, 3, I. & N. Dec. 689). Furthermore, the primary issue in this case
is not the question of determination of citizenship, but whether or not
a certificate of citizenship should be issued by this Service.
Section 341 of the Immigration and Nationality Act (8 U.S.C.A. 1452)
provides that a certificate shall be issued only upon the submission of
"proof to the satisfaction of the Attorney General that the applicant is
a citizen.' The burden of proof is therefore upon the applicant to
satisfy this Service that he is a citizen. 8 C.F.R. 10.1 provides that
"The Service officer authorized to make decisions may in his discretion
require the submission of additional evidence including blood tests
where that is deemed helpful and appropriate.' Regulations have the
force and effect of law (Matter of A , A-6178382, 3, I. & N. Dec. 714,
716; United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (March
15, 1954)).
In behalf of the applicants it is contended by counsel that in a
decision of the Service dated August 24, 1954 (Matter of L K J , File
1200-44697), a certificate of citizenship was issued despite the fact
that the applicant and his father refused to submit to a blood test.
However, in that decision it was pointed out that the requirement of a
blood test was not sanctioned by law or regulation. This case,
therefore, is not decisive of the issue inasmuch as there is outstanding
a present regulation concerning the requirement of a blood test which
has the full force and effect of law.
Inasmuch as the applicants have not presented any documentary
evidence of their claims to citizenship and this Service has information
which casts doubt on such claims, the requirement of this Service for
the applicants to submit to blood tests is not arbitrary. In view of
their refusal to undergo such tests and the lack of primary evidence as
to their citizenship, it is concluded that the applicants have failed to
prove to the satisfaction of this Service that they are citizens of the
United States. Consequently, the decision of the district director will
be affirmed.
Order: It is ordered that the decision of the district director
denying the applications of the above-named applicants for certificates
of citizenship be affirmed.
Expatriation -- Section 401(b) and (c) of Nationality Act of 1940 -- Executive Agreement between United States and Mexico.
(1) Provision for loss of nationality in section 401(b) of the Nationality Act of 1940 has no application to one who served in the armed forces of a foreign state but who denies taking an oath of allegiance to a foreign state unless there is definite proof that he did, in fact, take such oath (citing Acheson v. Maenza, 202 F.(2d) 453 (C.A. D.C., 1953).
(2) Section 401(c) of the Nationality Act of 1940 did not cause loss of nationality by United States nationals who were required to serve in the armed forces of Mexico during the period January 22, 1943 to October 28, 1952, because Executive Agreement No. 323 between the United States and Mexico authorizing such service had the force of law and provided exemption from loss of nationality under section 401(c).
EXCLUDABLE:
Act of 1952: Section 212(a)(20) -- No visa or passport.
Section 212(a)(22) -- Remained outside the United States to avoid and
evade military service.
Discussion: This case is before us on appeal from the decision of a
special inquiry officer, dated February 15, 1955, holding appellant an
expatriate under section 401(b) of the Nationality Act of 1940 and
excluding him on the above-stated grounds. Appellant sought admission
to the United States as a citizen on November 15, 1954, at San Ysidro,
California.
Appellant acquired United States citizenship at birth at Keeler,
California, on August 1, 1932. He remained in this country until
October 1940, when his mother took him and his four brothers and sisters
to Mexico to visit the critically ill paternal grandmother of appellant.
Shortly after arrival, the grandmother died and appellant's mother
became ill, reportedly preventing the mother from returning to this
country during the valid period of her reentry permit. For this reason
and as a result of further illness in the family, it is alleged that
only appellant's younger brother returned to this country to live with
the father.
On March 10, 1950, appellant registered for Mexican military service
at Arandas, Jal., Mexico, and he was declared liable for induction on
October 9, 1950. Thereafter, he was required to give Sunday military
service for one year. Mexican military training of this sort is known
to have occurred once a week on Sundays and was required of young
Mexican men by military regulations under the Mexican Constitution.
According to the Mexican Government, /1/ men engaged in Sunday military
service are considered as part of the active, regular army of Mexico
during their year's service and subject to the military descipline
during that period.
Since there is no evidence in the record that appellant actually took
an oath or made an affirmation to support the Mexican Government while
he was serving in the Mexican army, /2/ section 401(b) /3/ has no
application here for the Board has held that the to the military
discipline during 202 F.(2d) 453 (C.A. D.C., 1953), requires definite
proof that an affirmation of allegiance to the Mexican flag was in fact
taken by this citizen in question.
While section 401(c) /4/ makes service in a foreign army a
self-operating act of expatriation, it has been held that Executive
Agreement No. 323, between the United States and Mexico dated January
22, 1943, /5/ had the force of law. Hence, it provided an exemption
from loss of citizenship through Mexican military service, as a result
of the statutory phraseology of section 401(c). Matter of K G , 56158/
676, 2, I. & N. Dec. 243 (A.G., January 29, 1945). /6/
Since this agreement was in effect until October 28, 1952, /7/
appellant's Mexican military service from October 1950 to October 1951
falls within the exempting provision of section 401(c) and appellant did
not lose his United States citizenship through Mexican military service.
/8/ Thus, the question of whether appellant's induction or service was
actually voluntary or involuntary is not reached in this instance, for
appellant's case is removed from the area to which section 401(c)
applies by dint of Executive Agreement No. 323.
However, even though section 401(c) has no applicability to the
instant situation, we must consider the relevancy of section 401(j) of
the Nationality Act of 1940 to the present case. Expatriation under
section 401(j) occurs when the evidence shows that the citizen had a
desire to come to the United States after September 27, 1944, but was
deterred in his resolve primarily by reluctance to serve in our armed
forces (Matter of M , A-6690283, 2, I. & N. Dec. 910 (B.I.A., 1947)).
Hence, the final issue in the present case is whether appellant remained
outside the United States to evade and avoid military service from
Sptember 27, 1944, to April 28, 1952.
Appellant testified that his mother took him and the other five
children in the family to Mexico in October 1940 to see her
mother-in-law, who was ill. /9/ Appellant stated that he continued to
live in Arandas, Jal., Mexico (the residence of his father's family).
Appellant's father testified in this connection that "my mother died on
October 21, 1940, and my wife became ill and she just had a permit to
visit in Mexico for six months, and then one of the children was ill and
they just stayed there.'
Appellant stated that he had had a desire to come back to the United
States "since he got out of school' (the sixth grade in Arandas and part
of the time he began working. Appellant noted that in 1951 he was
crushed by a truck, while working as a mechanic, and was laid up for a
number of months. Appellant's father said that his son remained in
Mexico after September 27, 1944, because of illness (for two months in
1949 until the middle of 1950, appellant was being treated by a
physician for an abdominal ailment and from February 14, to October 7,
1954, he received treatment for a gunshot wound) and because the father
said that he had had no money to pay for appellant's transportation
expenses to the United States.
Appellant has explained his failure to return to the United States in
terms of illness and lack of funds; his father has also testified to
this effect. While there is some indication that appellant may have
been somewhat reluctant to serve in the United States military forces,
the record contains no definite proof to justify our disbelief of the
testimony of appellant and his father. Hence, because a finding of
expatriation as one remaining outside the United States to evade and
avoid military service cannot be founded on mere conjecture, we conclude
that appellant did not expatriate himself under section 401(j) of the
Nationality Act of 1940. The appeal is accordingly sustained.
Order: It is hereby ordered that the appeal be sustained and that
the applicant be admitted as a United States citizen.
(1) Circular of the Ministry of National Defense of Mexico, dated
December 14, 1948. The State Department regards the circular as a
statement of the status of persons involved in Sunday military service
and, therefore, affects those who gave such service prior to 1948.
(2) In the instant case, appellant denied that he took an oath of
allegiance and the Government has not obtained any definite proof that
he actually made the required affirmation of loyalty to the Mexican
flag.
(3) Section 401. A person who is a national of the United States,
whether by birth or naturalization, shall lose his nationality by:
(b) Taking an oath or making an affirmation or other formal
declaration of allegiance to a foreign state (8 U.S.C. 801(b)).
(4) Section 401. A person who is a national of the United States,
whether by birth or naturalization, shall lose his nationality by:
(c) Entering, or serving in, the armed forces of a foreign
state unless expressly authorized by the laws of the United
States, if he has or acquires the nationality of such foreign
state.
(5) Executive Agreement No. 323 provides, in part, that:
1. The nationals of either country resident within the
territory of the other may be registered and inducted into the
armed forces of the country of their residence on the same
conditions as nationals thereof unless otherwise provided herein.
(Executive Agreement No. 323 State Department .)
(6) On the basis of such authority as United States v.
Curtiss-Wright Export Corp., (299 U.S. 304, 1936), United States v.
Belmont (301 U.S. 324, 1937), and United States v. Pink (315 U.S. 203,
1942), it was held that Executive Agreement No. 323 "should be regarded
as having the force of law, and since it expressly authorizes the
drafting of our nationals, the appellant's military service in Mexico in
1943 is to be regarded as "expressly authorized by the laws of the
United States'.' For that reason, no expatriation could occur under
section 401(c).
See also, Matter of V L , 1603/21334, 5, I. & N. Dec. 497 (B.I.A.,
October 23, 1953), in which the Board concluded that Executive Agreement
No. 323 also served to forestall the effect of section 401(b) on a
person's status as a United States citizen.
(7) The expiration date of Executive Agreement No. 323 was set at six
months after the termination of the Japanese war (World War II) or six
months after April 28, 1952 (Pres. Procl. 2974; 17 Fed.Reg. 3813).
(8) Cf., Matter of S , A-6458448, 2, I. & N. Dec. 783 (B.I.A., March
19, 1947), which determined that a similar Executive Agreement with
Canada had no application to dual nationals.
(9) Appellant stated: "At that time my father's mother was ill in
Mexico and my mother had never known her so she took us to Mexico and my
grandmother died there and my father, who had been working in Bartlett,
moved to Wilmington, California.'
Appellant's father said that his wife went to Mexico in 1940,
"because I was married in Independence, California and I thought my
mother would like to know my wife and children. She was ill.'
Appellant has denied that his father and mother are legally separated
or divorced, although his testimony reveals that they have actually been
living apart since 1940 with his mother remaining in Mexico and his
father continuing to live in California. His father reportedly made two
or three visits to his family in Mexico, the last occurring about 1951
for a period of five months.
EDITOR'S NOTE: See also, Matter of C J , A-8945527, Interim Decision
No. 707 (B.I.A., 1955).
Entry into United States -- Section 101(a)(13) of Immigration and Nationality Act -- Return of alien to United States after denial of entry at foreign ports.
Where a resident alien departed from the United States to visit a foreign country but was not permitted to leave the vessel at any foreign port at which the vessel touched, his return to the United States does not constitute an entry within the meaning of section 101( a)(13) of the Immigration and Nationality Act.
EXCLUDABLE:
Act of 1952 -- Section 212(a)(4) -- Afflicted with mental defect.
Discussion: The case comes forward on appeal by the District
Director, New York District, from the order of the special inquiry
officer entered May 20, 1955, terminating the proceedings on the ground
that the applicant is not in the process of entering the United States
and the Service has no jurisdiction in exclusion proceedings. The
district director urges that the applicant is seeking to effect an entry
into the United States and in view of a certification by the United
States Public Health Service as a mental defective, he should be found
inadmissible under section 212(a)(4) of the Immigration and Nationality
Act.
The record relates to a native and last a citizen of Yugoslavia, 47
years old, single, male, who was lawfully admitted for permanent
residence at the port of New York on August 30, 1949, under the
Displaced Persons Act of June 25, 1948, in possession of an immigration
visa issued to him under section 6(b) of that act. Subsequently he made
two departures from here returning each time in possession of a reentry
permit.
On March 6, 1955, the applicant again departed for Europe in
possession of a reentry permit issued him on February 3, 1955, and an
affidavit in lieu of passport. He testified that while examining his
reentry permit and travel document on deck of the ship the wind tore the
documents from his hands and they disappeared into the sea. He stated
that upon arrival at the port of Hamburg, Germany, he was not permitted
to leave the vessel by German authorities since he was not in possession
of documents. He testified that he was not permitted to leave the
vessel at any other foreign ports at which the ship touched and was
detained on board the vessel. Upon arrival at the port of New York on
March 29, 1955, the applicant was transferred to the United States
Marine Hospital at Stapleton, Staten Island, New York, for examination
and on May 6, 1955, a Class A medical certificate signed by two United
States Public Health Service physicians was issued finding the applicant
afflicted with a mental defect, schizophrenia. In order to sustain a
finding of inadmissibility based upon the certification, it must first
be found that the applicant's arrival at the port of New York on March
29, 1955, under the circumstances in the case constitutes an entry.
Section 101(a)(13) of the Immigration and Nationality Act defines an
"entry' as any coming of an alien into the United States, from a foreign
port 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 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 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. This exception is
made not applicable to persons whose departure from the United States is
occasioned by deportation proceedings, extradition or other legal
process.
Prior to the passage of the Immigration and Nationality Act the term
"entry' into the United States was not precisely defined. However, the
judicial construction of the term "entry' as used in the immigration
laws generally held that the term "entry' included any coming of an
alien from a foreign country to the United States whether such coming
was the first or a subsequent one. /1/ The legislative history of the
term "entry' discloses the recognition and acceptance of court decisions
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 or did not leave the country voluntary. /2/
Under the prior immigration law it was held in the case of an alien
who was ordered excluded and held at Ellis Island and thereafter
paroled, that the alien was stopped at the boundary line and when
paroled, was still at the boundary line and gained no foothold and had
never entered the United States. /3/ In support of the administrative
view that an entry had not been made under prior law when an alien had
returned to the United States after having been denied entry into a
foreign country to which he intended to proceed, although physically in
such foreign country, reliance was had upon the case of Kaplan v. Tod,
267 U.S. 228, to cover the converse situation, the Board stating: "By
analogy one who, departing from the United States, seeks admission to
another country but is denied the right of entry, should be considered
as not having entered that country even if physically within the
jurisdiction thereof,' and cancelled exclusion proceedings in the case
of an alien who departed from the United States as a stowaway and was
refused admission at a foreign port.
The legislative history behind the definition of the term "entry' in
the Immigration and Nationality Act does not disclose any intention to
change prior administrative decisions or interpretations regarding the
meaning of that term but was modified to include the judicial
pronouncements which made intent and voluntariness of departure an
ingredient of the term "entry.' In view of the fact that the applicant
in the instant case has testified he was refused entry at foreign ports
and was confined on ship and was returned to the United States, in
conformity with earlier administrative holdings we find that the
applicant's present arrival does not constitute an "entry' into the
United States under the present act. In view of our finding that there
has been no entry, there is no basis upon which the ground of
inadmissibility urged by the district director can be sustained.
Likewise, in view of our conclusion we find it unnecessary to comment
upon the theory advanced by the special inquiry officer holding that a
voluntary departure was not involved because the applicant was not a
sane person. The exclusion proceedings will be ordered terminated.
Order: It is ordered that the exclusion proceedings be terminated.
(1) United States ex rel. Volpe v. Smith, 289 U.S. 422 (1933).
(2) Senate Report No. 1137 to accompany S. 2550 (82d Cong., 2d sess.)
p. 4. "More recently, the courts have departed from the rigidity of that
rule Volpe v. Smith and have 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 (Di Pasquale v. Karnuth, 158
F.(2d) 878 (C.C.A. 2, 1947), or 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 on 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.'
(3) Kaplan v. Tod, 267 U.S. 228 (1925).
Preference quota status under section 203(a)(4) of Immigration and Nationality Act -- Proxy adoption.
(1) In the absence of fraud or irregularity in the adoption process, an adoption in Germany valid under German law should be recognized as valid for purposes of conferring preference quota status on the adoptive child under section 203(a)(4) of the Immigration and Nationality Act, although the adoptive parents, residents of Texas, did not appear before the German court and acted through a representative.
(2) Foreign decrees of adoption are recognized by the State of Texas
on principles of comity despite the fact that the method of adoption may
be radically different from that provided in its own adoption laws.
Discussion: The matter comes forward on appeal from the order of the
District Director, El Paso District, dated September 17, 1954, denying
the visa petition on the ground that the adoption of the beneficiary is
not a valid adoption to confer preference status under the Immigration
and Nationality Act for the reason that neither the petitioner nor his
wife was present at the adoption proceedings.
The petitioner, a native-born citizen of the United States, seeks
preference status under section 203(a)(4) of the Immigration and
Nationality Act on behalf of the beneficiary, born in Germany on May 29,
1951. It is alleged that the beneficiary is the adopted son of the
petitioner. In support thereof there has been submitted a document
entitled "Deed of Adoption,' dated July 15, 1954, bearing the official
seal of the local court, the Amtsgericht at Frankfurt am Main, Germany,
attesting to the adoption on June 15, 1954, between the petitioner and
his wife E , through Mrs. G C at Frankfurt/M and the minor, W D E ,
through the Stadtisches Jugendamt Frankfurt/M (Municipal Youth Welfare
Office) as legal guardian ex officio contracted on the 9th of March 1954
as per legal instrument No. 116/54 in accordance with paragraph 1741 of
the German Civil Code, and the provisions of law of the State of Texas
governing infants' adoption.
It is well settled by the authorities that by adoption a status is
fixed similar to that arising from marriage, that questions affecting
the existence of such status and the method of its creation are
controlled by the law of the state or nation which creates it, and that
the status so created by adoption will be recognized under rules of
comity in other states even though the form or procedure by which the
status was created under foreign law was different from that declared to
create it under the law of the other jurisdiction. /1/ The State of
Texas follows this general rule and it has been held that the right of a
child adopted in a foreign land is not affected by the fact that the
method of adoption under foreign law is radically different; and that
the status created by adoption under the laws of a foreign state will be
recognized in other states on principles of comity. /2/ In the instant
case there has been presented a decree or deed of adoption under the
seal of the local court, the Amtsgericht, at Frankfurt am Main, which
appears to be regular and valid on its face and presumably was regularly
entered and constitutes a valid court decree of adoption. There would
appear to be present no considerations or public policy which would make
recognition of this German court decree of adoption repugnant to any
principles of public morals or abstract justice in this country, or more
particularly, in the State of Texas. Additionally, there is judicial
authority in the State of Texas to accept and accord recognition to such
a foreign decree of adoption.
We have, however, been provided with the benefits of research
conducted by the Library of Congress on the question of the validity of
an adoption by proxy or in absentia in Germany. Section 1741 of the
German Civil Code provides that a person who has no legitimate
descendants may adopt another by contract with the latter. Such a
contract requires the confirmation of the competent court. In a comment
on this section it is pointed out that the requirements that an adopter
shall have no legitimate descendants have been relaxed through the
conditions following World War II; and that in order to find homes for
orphaned children and to enable them to enjoy proper family ties,
legislation was passed in the American and British zones of Germany to
dispense with this requirement.
The most pertinent provision appears in section 1750 of the German
Civil Code which provides as follows:
Section 1750. The contract of adoption may not be entered into
through an agent. If the adopted child has not completed his
fourteenth year of age, his statutory agent may enter into the
contract subject to the ratification of the Guardianship Court.
The contract of adoption must be entered into before a court of
notary in the simultaneous presence of both parties.
The memorandum supplied by the Library of Congress comments on the
requirement of the second paragraph of section 1750 of the German Civil
Code as to the simultaneous presence of the parties to the contract.
Apparently agreement exists on the question that "representation in the
intention' is inadmissible. However, the views differ on the point
whether "representation in the declaration of the intention' may be
admitted. Authorities are cited for the proposition that representation
in the declaration of the intention is admissible since what is involved
is a mere transmittal on the part of a messenger, or, a transfer of the
declaration given by the natural parents, thus constituting merely a
representation in the declaration of the intention.
Other pertinent provisions of law are cited, including the Law on
Matters Subject to Non-Adversary Procedure of May 17, 1898, section 65
of which declares that the Amtsgericht shall be competent to confirm any
contract whereby a person is adopted. Law No. 10 of the Military
Government, published in the Military Government Gazette, Germany,
United States Area of Control, Issue H, January 16, 1948, page 1,
requires that in any adoption case in which either of the prospective
adopting parents is a national of the United Nations and in which a
German court exercises jurisdiction, it is ordered that wherever the law
of the state of the adopter requires an examination of the merits of the
adoption including an investigation as to the qualification of the
adopter, the court shall comply with such requirements, unless directed
otherwise by Military Government. Such investigation of the
qualifications of the adopter is required to be made by an agency duly
authorized by the Military Government, and investigation as to the
person to be adopted is to be made by the proper German authorities.
It would appear from the authorities cited that precedent exists for
the recognition of the type of adoption which took place before the
local German court or Amtsgericht and that the law required safeguards
in the form of investigations of both the adopter and the adoptee.
There is no evidence of any fraud or irregularity in the adoption
process and in view of its seeming validity it should be accorded full
recognition as the decree of a foreign court under familiar principles
of comity. /3/ Accordingly, the decree of adoption will be recognized
and the petition approved for fourth preference.
Order: It is ordered that the visa petition be approved for
preference under section 203(a)(4).
(1) American Jurisprudence, secs. 10, 67-69; American Law
Institute's Restatement of the Law on Conflicts of Law, sec. 143; 1
Corpus Juris 1402; 1 Ruling Case Law 592, 618.
(2) Martinez v. Gutierrez, 66 S.W.2d 678 (1933).
(3) See unreported Matter of P , VP-13-10481 (March 18, 1955),
involving resident of California who appeared before Italian Vice Consul
at Los Angeles, California, during course of an adoption procedure
approved by an Italian court; also, unreported Matter of B , VP
07-11110 (January 14, 1955), in which resident of Ohio consented to an
adoption before Greek consul at Chicago, Illinois, and was represented
by an attorney in fact during the adoption proceedings at Samos, Greece.
Evidence -- Stipulations, of fact -- Binding until withdrawn.
Where claim to United States citizenship is based on citizenship status of alleged father, stipulation by examining officer and respondent's counsel that respondent is the child of the alleged citizen father is binding upon the Government notwithstanding the introduction of documentary evidence showing that respondent is not the child of the alleged father. Under such circumstances, the case will be remanded to the special inquiry officer so that the examining officer may withdraw the stipulation upon a showing that it was made inadvertently or under a bona fide mistake of fact and contrary to the true fact.
CHARGES:
Warrant: Act of 1952 -- No immigrant visa (all).
Discussion: The special inquiry officer on February 3, 1955, entered
an order terminating the above-captioned proceedings insofar as they
relate to the respondents R B L and D B$03Z . The respondent R B Z was
found to be an alien deportable under section 241(a)(1) of the
Immigration and Nationality Act of 1952. He was granted voluntary
departure in lieu of deportation with the proviso that if he failed to
depart when required his deportation could be ordered without further
notice. The respondent R B Z appealed from this order and exceptions
have been filed.
The facts of the case are fully stated in the opinion of the special
inquiry officer and will not be restated in their entirety. Briefly,
they establish that the respondent, R B Z , was born in Mexico on
December 29, 1917, and last entered the United States as a citizen at
the port of Laredo, Texas, on February 28, 1951. A stipulation, entered
in evidence as exhibit G-7, between the examining officer for the
Government and the counsel of record for the respondent relates insofar
as pertinent to these proceedings as follows:
That R B L was born in the United States of America on April
16, 1894; that he is married to P Z , a native and citizen of
Mexico, now a legal resident of the United States, and by their
marriage they have eight living children -- B , R , D , C , R , M
de J , A , and A ; R , M de J , and M G were all born in the
United States but M G died; that R B L and P Z were married on
October 9, 1941, in Cd. Guerrero, Tamps., Mexico, at which time R
B recognized all of the above-named children as being his through
his relations with P Z ; and that on February 28, 1951, R and D
were admitted to the United States as United States citizens by
the board of special inquiry at Laredo, Texas. (Executed at
Zapata, Texas, on March 31, 1953.)
The Government alleges that the respondent, R , is the illegitimate
child of P Z and was fathered by someone other than R B L whose United
States citizenship is conceded. In other words, the Government contends
that respondent, R , did not derive United States citizenship under the
provisions of section 1993, Revised Statutes, at the time of his birth.
The issue before us is one of fact and in a deportation case where a
claim of citizenship is made the burden is upon the Government to
establish by substantial evidence that the deportee is an alien (United
States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 68 L.Ed. 221). Evidence
to sustain the burden of proving alienage under the circumstances here
presented must be reasonable, clear and substantial (Carmichael v.
Delaney, 170 F.(2d) 239 (C.C.A. 9, 1948); United States ex rel.
Marcello v. Ahrens, 212 F.(2d) 830 (C.C.A. 5, 1954)).
The special inquiry officer relies primarily on a delayed baptismal
certificate introduced in evidence as exhibit G-10 and the testimony of
one B M G to establish that the respondent, R , is an alien The delayed
baptismal certificate relates, inter alia, "on the 15th day of the month
of July, 1918, I, Parson J V , baptized according to the rites of the
sainted church, R , of this town, born 29th day of December 1917,
natural born son of P L and P Z .' The witness, B M G , testified in
substance that he knew the respondent, R , by the surname of "M .'
The special inquiry officer's finding of fact (11) that the
respondent R is the illegitimate son of P Z and was fathered by someone
other than R B L , completely ignores the stipulation entered in
evidence as exhibit G-7. We are of the opinion that the stipulation is
binding upon the special inquiry officer until withdrawn. /1/ This was
not done in the instant case.
We believe that where a situation arises with regard to a stipulation
as is presented by the case before us the proper procedure would be that
any party so bound may, prior to final decision, be permitted to
withdraw said stipulation in whole or in part by showing to the
satisfaction of the special inquiry officer that such stipulation was
made inadvertently or under a bona fide mistake of fact contrary to the
true fact and that its withdrawal at the time proposed will not unjustly
prejudice the rights of all parties to the proceeding. Since the issue
before us is one of fact and since the stipulated facts now appear to be
controversial we will remand the case to the special inquiry officer to
afford him an opportunity to comply with the foregoing.
Order: It is directed that the case be and the same is hereby
remanded to the special inquiry officer for further action in accordance
with the foregoing opinion.
(1) Cf. United States v. Schneiderman, 106 F.Supp. 906; 928;
Weilbacher v. J. H. Winchester & Co., 197 F.(2d) 303 (C.A. 2, 1952);
United States v. Frankfeld, 103 F.Supp. 48 (D.C. Md., 1952).
Fine -- Section 231(b) of Act of 1952 -- Departure manifest -- Clerical errors.
Fine was incurred by air carrier under section 231(b) of the 1952 act
for failure to furnish properly prepared list or manifest as to
departing alien passengers where the evidence shows that the carrier did
not insert the facts relating to the departure on Forms I-257a, I-94,
and I-424, since such failure was not a mere "clerical error.'
Discussion: This matter is before us on appeal from the decision of
the District Director at New York, dated January 3, 1955, ordering that
fine in the sum of $180 ($10 for each person concerned), be imposed on
Colonial Airlines, Inc., owners and/or agents of the above-mentioned
plane, for failure to furnish a properly prepared list or manifest as to
18 alien passengers.
The specific violation here charged is the complete failure of the
carrier to insert the facts relating to the departure of 18 passengers.
They left the United States on the above-described plane, as indicated.
However, the Forms I-257a, I-94, and I-424 submitted for the departure
of the 18 persons involved contained no information relative to that
departure. (Note: -- Departure information has been inserted on the
forms, which are in the record, by an employee of the Service.)
There is no question that the alien passengers involved did depart,
as indicated. There is also no question but that the information
relative to their departure was not furnished on the reverse of the
forms listed, by the carrier. However, the carrier submits that this
failure on its part does not subject, it to a fine, by virtue of the
provisions of section 11.3 and .4 of Annex 9 to the Convention on
International Civil Aviation.
The carrier points out that section 11.3 (supra) requires that the
pilot or his agent be given an opportunity to correct, or that the
public official concerned should himself have corrected, errors which
are of purely clerical nature and not made with intent to violate the
law. The carrier further submits that section 11.4 (supra) provides
that no penalty shall be imposed before the operator or the agent has
been given an opportunity to satisfy the public authorities concerned
that the error was inadvertent and not of a serious nature.
The carrier contends that the failure to insert the facts of
departure on the forms in question was an error of a purely clerical
nature and was not made with the intent to violate the act. It is also
contended that the errors were in fact inadvertent and were not of such
a serious nature that they could not be remedied without undue hardship
or burden upon either the carrier's agents or Service representatives.
It is further contended that no damage flowed from the alleged failure
of the carrier's agents to properly complete the forms in question of
such a nature as to jeopardize the safety or well-being of the United
States Government or citizenry as a whole. It is finally contended that
the fine being levied under the circumstances herein set forth is an
unduly harsh penalty for alleged errors of a purely clerical nature.
Therefore, the carrier respectfully requests that the fine be not
levied.
We have carefully considered the facts of this record together with
the representations of the carrier. On the basis of such consideration,
we find that liability to fine has been clearly established in this
matter. The reason is that there was a complete failure to insert
departure information as to the 18 alien passengers involved. We hold
that a complete omission to furnish departure information is not a mere
"clerical error' under the law and the regulations promulgated
thereunder.
Clearly, the carrier is required to insert information relating to
the departure of these alien passengers. 8 C.F.R. 231.5 requires that
Form I-466 be used to manifest passengers departing by aircraft, and
that such manifest shall be on the same form and shall contain the same
information as prescribed in 8 C.F.R. 231.4(a)(1). The latter requires
that the form shall reflect the name of the owner or operator, aircraft
registration marks and nationality, flight number, date, port of
embarkation, and port of disembarkation. 8 C.F.R. 231.42 requires that
each passenger shall surrender to the carrier Form 257a or Form I-94,
and that the carrier shall note thereon the name of the port of
embarkation in the United States, the date of departure therefrom, and
the registration marks of the aircraft. It also requires that the
carrier shall attach such form to, and make it a part of, the Form I-466
relating to such passenger. It further requires that when no such form
is surrendered, the carrier shall cause to be executed as a part of the
manifest a Form I-424 and shall attach it to the departure manifest.
On the basis of the foregoing, it is clear that there was no
requirement that the carrier be granted an opportunity to supply the
lacking information. The reason is that the error was not a clerical
one. Accordingly, we will dismiss this appeal.
Order: It is ordered that the appeal be and the same is hereby
dismissed.
Good moral character -- Section 101(f)(3) of Immigration and Nationality Act -- Effect of expungement of record of conviction in California.
While the expungement of a conviction record in California does not fully erase a finding of guilt for the particular crime, the offense may not then serve as a bar to the establishment of good moral character.
CHARGE:
Warrant: Act of 1924 -- Remained longer -- Seaman.
Discussion: This case is before us on appeal from the decision of
the special inquiry officer dated January 7, 1955, directing deportation
on the warrant charge. Respondent, a 26-year-old native and citizen of
Belgium, last entered the United States at San Pedro, California, on
August 4, 1949, as a seaman. On that occasion, he was discharged from a
ship; he originally planned to reship on another vessel. However,
respondent decided to remain in the United States but made no
applications for extensions of his stay. Respondent is clearly
deportable as an alien remaining longer than the permitted time as a
seaman, contrary to sections 14 and 15 of the act of 1924.
The special inquiry officer found that respondent was statutorily
ineligible for discretionary relief because of criminal convictions in
1951 and 1954, which he concluded cast "grave doubt' on the possibility
of respondent's proving good moral character. /1/ On November 1, 1953,
the American Vice Consul at Vancouver, B.C., Canada, advised respondent
that he might be inadmissible under section 212(a)(9), because his
police certificate indicated conviction for two crimes in Belgium prior
to his first entry.
A person of a similar name to respondent was convicted on June 3,
1948, of theft of employee wages in Ghent, Belgium. Respondent has
denied that this record relates to him, for he stated that he was
employed as a seaman outside of Belgium at the time. Respondent also
denies any connection with a conviction on May 19, 1949, by a military
court for desertion in time of war. Respondent specifically states in
this connection that he never served in the Belgium armed forces and
could not have been subject to such a charge.
As it is not clear whether respondent was in fact in Belgium at the
time these convictions were handed down (the fact that he was working as
a seaman in the Canal Zone shortly after serves to lend credence to his
testimony) or whether the records of these convictions actually relate
to respondent, and since they occurred outside the statutory period of
good moral character we will not dwell upon these convictions.
On December 7, 1948, at 1.40 a.m. respondent was arrested while
intoxicated in the Canal Zone. It is reported that respondent
maliciously damaged three automobiles in a residential area while drunk
by damaging the wiring of one car, the horn ring of another, and the
windshield wiper hose of a third. Respondent was allegedly booked on a
charge of intoxication and three charges of malicious mischief. He
elected to forfeit $40 collateral, rather than stand trial on these
charges.
The offense of malicious mischief in the Canal Zone /2/ is classed as
a misdemeanor punishable by a maximum imprisonment of 30 days or a
maximum fine of $100, or by both. /3/ The offense of malicious mischief
in the Canal Zone is clearly a "petty offense' within the meaning of the
Act of September 3, 1954 (P.L. 770, 83d Cong.) and would not render
respondent excludable under section 212(a)(9). /4/
In 1951, the respondent was convicted in San Mateo of petty theft,
contrary to section 488 of the California Penal Code. According to the
record, respondent on July 9, 1951, took the personal property of
another (a brass line-cutter tool, the property of Sears, Roebuck and
Co.), valued at $2.25. As a result, a store security officer "arrested'
him shortly after he had left the premises. Respondent was released on
probation with the record of conviction being expunged under section
1203.4 of the Penal Code on November 14, 1952. The crime of theft is
defined in section 484 of the California Penal Code as follows:
Every person who shall feloniously steal, take, carry, lead or
drive away the personal property of another * * * is guilty of
theft. (Enacted 1872; Am. Stats. 1927, p. 1046; Stats. 1935, p.
2194.)
According to sections 487, 488, 489, 490(a), petty theft includes
property generally valued at less than $200 or domestic fowl, avocados,
citrous or deciduous fruits valued at $50 or less, but excluding certain
animals and automobiles. The California courts have determined that a
fraudulent intent to deprive the owner of his property is an essential
characteristic of the offense of theft -- larceny (People v. Simon, 107
Cal.App.(2d) 105, 236 P.(2d) 855 (1951)). Hence, since moral turpitude
inheres in the criminal intent, a conviction for theft is for a crime
involving moral turpitude (United States ex rel. Mongiovi v. Karnuth,
30 F.(2d) 825 (W.D. N.Y., 1929); United States ex rel. Meyer v. Day, 54
F.(2d) 336 (C.C.A. 2, 1931); United States ex rel. Shladzien v. Warden,
45 F.(2d) 204 (E.D. Pa., 1930)).
The punishment for petty theft is a maximum inmprisonment in the
county jail of six months, a maximum fine of $500, or both.
Respondent's conviction in 1951 for petty theft is also a petty offense
within the meaning of the Act of September 3, 1954 (P.L. 770, 83d Cong.)
and does not constitute a ground of exclusion under section 212( a)(9).
Respondent was convicted on August 16, 1954, on a plea of guilty of
violating the California Unemployment Security Act by willfully making
false statements to obtain unemployment benefits to which he was not
entitled (contrary to section 101 of the California Unemployment
Insurance Act). Respondent was sentenced to 60 days' imprisonment,
restitution of the $65 obtained, and was placed on probation for one
year. This offense, which has been held to be a crime involving moral
turpitude /5/ is a misdemeanor under California law, is punishable by a
maximum imprisonment of six months and a maximum fine of $500, or both
(section 19, California Penal Code).
The record of conviction for this crime was also expunged under
section 1203.4 of the California Penal Code on December 6, 1954. This
crime is also a "petty offense' within the meaning of the Act of
September 3, 1954 (P.L. 770, 83d Cong.) and does not constitute a ground
of exclusion under section 212(a)(9).
Moreover, it has been held that action under section 1203.4,
California Penal Code, to expunge a conviction record will nullify the
conviction as a basis of deportation and that such an expungement is
equivalent to a pardon (Matter of O T , A-4355094, 4, I. & N. Dec. 265
(C.O., 1951); Matter of E V , 1610-9315, 5, I. & N. Dec. 194.).
Furthermore, being in the nature of a pardon, an expungement of the
record removes the statutory bar to proving good moral character under
section 101(f)(3) (Matter of Z , E-072431, 23 Law Week 2164 (B.I.A.,
1954)).
On the other hand, this expunging of the record in California does
not completely obliterate the fact that the unlawful acts occurred (Cf.,
Meyer v. Board of Medical Examiners, 34 Cal.(2d) 62, 206 P.(2d) 1085
(1949)). However, in the present situation, the onus of the 1951 and
1954 offenses are overcome by the fact that these crimes are only "petty
offenses' within the meaning of the Act of September 3, 1954 (P. L.
770, 83d Cong.) and should not militate against respondent's being
granted a visa. Hence, it is concluded that on the basis of
respondent's generally good record, he has established that he is a
person of good moral character.
Since respondent has resided in this country more than five years,
has a citizen wife and 4-year-old citizen child, has been a good
provider for his family, and also has an otherwise good, constructive
record, we feel that he should be granted voluntary departure.
Order: It is ordered that the outstanding order of deportation be
withdrawn and 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, in any event not less than 30 days,
and under such conditions as the officer in charge of the district deems
appropriate, conditioned upon consent of surety, if any.
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. executed.
(1) Section 244(e) requires that the alien prove that he has been a
person of good moral character during the five years immediately
preceding the alien's application for voluntary departure. In addition,
section 101(f) provides:
For purposes of this Act --
No person shall be regarded as, or found to be, a person of
good moral character who, during the period for which good moral
character is required to be established, is, or was -- * * *
(3) a member of one or more of the classes of persons, whether
excludable or not, described in * * * paragraphs (9), (10), and
(23) of section 212(a), if the offense described therein, for
which such person was convicted or of which he admits the
commission, was committed during such period; * * *.
(2) Title 5, section 801 of the Canal Zone Code provides:
Malicious injury to property generally. Every person who
maliciously injures or destroys any real or personal property not
his own, in cases otherwise than such as are specified in this
title, is guilty of a misdemeanor.
(3) Title 5, section 26, Canal Zone Code.
(4) The test of a "petty offense' under the Act of September 3, 1954
(P.L. 770, 83d Cong.) is that the statutory penalty must not exceed one
year and that the actual punishment meted out by the court shall not be
more than six months' imprisonment (18 U.S.C. 1(3); Cong. Rec., p.
14505 (August 20, 1954), p. 14609 (August 20, 1954); Matter of C ,
E-092142, Int. Dec. No. 635 (B.I.A., 1954); Matter of H , A-6060587,
Int. Dec. No. 658 (B.I.A., 1954)).
(5) Matter of L , T-2760542, 5, I. & N. Dec. 705.
Discussion: Deportability is clearly established in this case. The
only question presented is whether the respondent is precluded from
establishing good moral character so as to make him statutorily
ineligible for voluntary departure.
On December 7, 1948, in the Canal Zone he was arrested on a charge of
intoxication and also on three charges of malicious mischief in
violation of Title 5, section 801 of the Canal Zone Code. He elected to
forfeit $40.00 collateral rather than stand trial on these charges. He
was again arrested at San Mateo, California, on July 9, 1951, for petty
theft in violation of section 488 of the California Penal Code. He was
convicted on August 22, 1951, as a result of which he received a
suspended sentence and was placed on probation for three years. On
August 16, 1954, at San Mateo, California, the respondent entered a plea
of guilty to violation of the California Unemployment Insurance Act in
that he willfully made false statements to obtain unemployment benefits
to which he was not entitled. Upon conviction he was sentenced to
imprisonment for a period of 60 days, to make restitution in the sum of
$65.00, and he was placed on probation for one year. The respondent
testified that he was not required to serve the sentence to imprisonment
because he made the restitution.
Respondent has been convicted of two offenses involving moral
turpitude within the period for which good moral character must be
established in order to obtain voluntary departure. Section 101(f)(3)
precludes a showing of good moral character by an alien convicted of an
offense of the type described in section 212(a)(9) within the provable
period whether the alien is excludable or not. Consequently, it would
appear that the provisions of the Act of September 3, 1954, have no
application to this case where good moral character and not
excludability is the pertinent issue. But even assuming that the Act of
September 3, 1954, may be applied in determining whether an alien is
precluded from establishing good moral character, the act is expressly
limited to cases where "the alien has committed only one such offense.'
In this case the respondent has been convicted of three petty offenses
of which two were committed within the period for which good moral
character must be established.
That the records of conviction in two of the cases were expunged
pursuant to the provisions of section 1203.4 of the California Penal
Code in no way aids the respondent. Expunging the record does not
obliterate the record of conviction and is not the equivalent of a
pardon sentence. The acts which formed the basis of the conviction have
always been considered in connection with the question of good moral
character irrespective of whether the conviction would sustain a charge
of deportation or exclusion. Cases supporting this view are set forth
in Matter of O T , A-4355094, 4, I. & N. Dec. 265 at pages 267 and 268.
In view of the foregoing, it is concluded that the respondent is
precluded from establishing good moral character in this case and that
he is statutorily ineligible for voluntary departure.
Motion is hereby made that the Board of Immigration Appeals
reconsider and withdraw its order granting the respondent the privilege
of voluntary departure and that it order the respondent deported from
the United States.
Discussion: This case is before us on motion of the Commissioner of
the Immigration and Naturalization Service for reconsideration of our
order of May 24, 1955, holding the respondent to be a person of good
moral character and granting voluntary departure. Respondent, a
26-year-old native and citizen of Belgium, last entered the United
States at San Pedro, California, on August 4, 1949, as a seaman. He is
deportable as an alien remaining longer than the permitted time as a
seaman, contrary to sections 14 and 15 of the act of 1924.
The special inquiry officer found that respondent was statutorily
ineligible for discretionary relief because of criminal convictions in
1951 and 1954, which he concluded casts "grave doubts' on the
possibility of respondent's proving good moral character under section
101(f)(3). According to the record, respondent has been convicted of
several crimes during recent years. Respondent was arrested in 1948 in
the Canal Zone and charged with three charges of malicious mischief, but
elected to forfeit collateral rather than stand trial.
In 1951, respondent was convicted of petty theft, a crime involving
moral turpitude, contrary to section 488 of the California Penal Code.
In 1954, he was convicted on a plea of guilty of making false statements
to obtain unemployment benefits, contrary to section 101 of the
California Unemployment Insurance Act. The records of conviction of the
latter two offenses were expunged under section 1203.4 of the California
Penal Code on November 14, 1952, and December 6, 1954.
While the expunging of a conviction record in California does not
fully erase a finding of guilt for the particular crime, the offense may
not then serve as a bar to the establishment of good moral character.
/1/ Hence, such an expungement makes it possible in the instant case to
consider all the evidence of record, including the fact that the alien
was convicted for the two offenses (later expunged from the record)
during the statutory period of good moral character, and to arrive at a
definite conclusion on the issue of good moral character. /2/
In this connection, we observed in our decision of May 24, 1955, that
all three offenses fall in the category of a "petty offense' /3/ as the
term is used in the Act of September 3, 1954 (Public Law 770, 83d
Cong.). /4/ However, because this statute specifically applies to only
one "petty offense' committed by an alien, /5/ the "petty offense' test
is not effective to overcome more than one ground of exclusion under
section 212(a)(9).
Upon consideration of the circumstances of respondent's case, we feel
that he has a generally good record, notwithstanding his expunged 1951
and 1954 convictions for petty theft and false statements, and conclude
that respondent has established that he has been a person of good moral
character during the five-year period required by statute as a basis for
discretionary relief. The motion is accordingly denied.
Order: It is hereby ordered that the motion be denied.
(1) Meyer v. Board of Medical Examiners, 34 Cal.(2d) 62, 206 P.(2d)
1085 (1949); Matter of Z , E-072431, 23 L.W. 2164 (B.I.A., 1954);
Matter of O T , A-4355094, 4, I. & N. Dec. 265 (C.O., 1951).
(2) Section 244(e) of the act of 1952 requires that the alien prove
that he has been a person of good moral character during the five years
immediately preceding the alien's application for voluntary departure.
In addition, section 101(f) provides:
(f) For the purposes of this Act --
No person shall be regarded as, or found to be, a person of
good moral character who, during the period for which good moral
character is required to be established, is, or was -- * * *
(3) a member of one or more of the classes of persons, whether
excludable or not, described in * * * paragraphs (9), (10), and
(23) of section 212(a), if the offense described therein, for
which such person was convicted or of which he admits the
commission, was committed during such period.
(3) The 1948 conviction was for malicious mischief in the Canal Zone.
The punishment under Title 5, sections 26 and 801 of the Canal Zone
Code is a maximum imprisonment of 30 days. In connection with the 1951
conviction for petty theft in California, sections 484, 487, 488, 489,
and 490(a) relate to property generally valued at less than $200 and
involves a maximum sentence of imprisonment of six months. Respondent
was also convicted for the 1954 offense of willfully making false
statements to obtain unemployment benefits, contrary to section 101 of
the California Unemployment Insurance Act and was sentenced to six
months' imprisonment, the maximum statutory sentence.
(4) The test of a "petty offense' under the Act of September 3, 1954,
(P.L. 770, 83d Cong.), is that the statutory penalty must not exceed one
year and that the actual punishment meted out by the court shall not be
more than six months' imprisonment (18 U.S.C. 1(3); Cong. Rec., pp.
14505, 14609 (August 20, 1954); Matter of C , E-092142, Int. Dec. No.
635 (B.I.A., 1954); Matter of H , A-6060587, Int. Dec. No. 658 (B.I.A.
1954).
(5) Section 4 of Public Law 770 states:
Any alien who is excludable because of the conviction of a
misdemeanor classifiable as a petty offense * * * or who is
excludable as one who admits the commission of such misdemeanor,
may hereafter be granted a visa and admitted to the United States,
if otherwise admissible: Provided, That the alien has committed
only one such offense.
Discussion: The Service in its motion dated May 25, 1955, challenged
the finding of the Board that the subject alien was not precluded from
establishing good moral character by the terms of section 101(f)(3) of
the Immigration and Nationality Act. While the Board now agrees with
the Service that section 4 of the Act of September 3, 1954, relating to
"petty offenses' does not apply to the instant case, the Board adheres
to its view that the expunging of a conviction record in California,
while it "does not fully erase a finding of guilt for the particular
crime,' makes it possible to find that the alien has been a person of
good moral character during the five-year period required by statute as
a basis for discretionary relief. /1/ The Service disagrees with this
conclusion as to the effect of the expungement procedure.
Moreover, irrespective of the applicability of section 101(f)(3) of
the Immigration and Nationality Act to the issue herein presented, the
Service cannot agree that this habitual criminal alien has a "generally
good record' as asserted by the Board in its order denying the Service
motion.
Request is hereby made that this case be referred to the Attorney
General for review pursuant to the provisions of 8 C.F.R. 6.1(h)(1)(
iii).
(1) In Matter of Z , E-072431, 23 L.W. 2164 (B.I.A., 1954), the Board
held that a full and unconditional pardon not only serves as a bar to
deportation but also wipes out the crime insofar as discretionary relief
is concerned. The Service does not agree with this determination but
review was precluded by the departure of the alien from the United
States so that the proceedings could not be reactivated.
The decisions and orders of the Board of Immigration Appeals in the
above-captioned case, dated May 24, and July 29, 1955, are sustained.
Preference quota status -- Section 203(a)(4) of Immigration and Nationality Act -- Legitimation not limited to children under 18.
Brothers and sisters born out of wedlock and legitimated by the
subsequent marriage of the parents are entitled to the benefits of
section 203(a)(4) of the Immigration and Nationality Act, even though
legitimation did not occur until all the children had reached majority.
Discussion: The matter comes forward on appeal from the order of the
District Director, New York District, dated April 26, 1955, denying the
visa petition on the ground that the beneficiary is not considered to be
a brother within the meaning of section 203(a)(4) of the Immigration and
Nationality Act and hence not entitled to preference quota status.
The citizen petitioner seeks preference status on behalf of the
beneficiary under the provisions of section 203(a)(4) which grants a
preference to brothers of citizens of the United States. The petitioner
was born in Italy on February 24, 1891, and the beneficiary was born in
Italy May 10, 1909. They are the offspring of common parents who were
not married until May 25, 1934. It is conceded that the subsequent
marriage of the parents effected the legitimation of the children born
prior to the marriage.
It appears from the notations in the file that the denial is
predicated upon the theory that the petitioner and beneficiary were of
illegitimate birth and that the parents' marriage in 1934 was too late
for legitimation. It must be assumed that this reasoning is based upon
section 101(b)(1)(C) of the Immigration and Nationality Act which
defines the term "child' to mean an unmarried person under 21 years of
age, who is legitimated under the law of the child's residence or
domicile, or under the law of the father's residence or domicile, if
such legitimation takes place before the child reaches the age of 18
years. In the instant case the legitimating act occurred when the
petitioner was 43 and the beneficiary 25 years of age.
We disagree with the conclusion that the legitimation in the instant
case occurred too late to confer any benefit upon the parties herein.
The instant petition seeks a preference under the provisions of section
203(a)(4), granted to "brothers' of citizens of the United States. The
subsequent marriage of the parents has legitimated the children and they
are since the date of such marriage legitimate brothers of the whole
blood. The limitation set forth in section 101(b)(1) applies only to
children under 21 years of age. That limitation has no application to a
petition under section 203(a)(4) for a preference to a brother who may
be over 21 years of age and who may be eligible for such a preference.
It is concluded that since it has been established that the parties
are legitimate brothers, the beneficiary is eligible for preference
status under section 203(a)(4) (Matter of W , VP 8-3340, Int. Dec. No.
619). The visa petition accordingly will be approved.
Order: It is ordered that the visa petition be and the same is
hereby approved.
Convicted of two crimes -- One crime a "petty offense' as described in section 4 of Act of September 3, 1954 -- Section 241(a)(4) of Immigration and Nationality Act.
The charge "Convicted of two crimes involving moral turpitude, after entry, not arising out of a single scheme of criminal misconduct' under section 241(a)(4) of the Immigration and Nationality Act is sustained although one of the offenses is a misdemeanor classifiable as a petty offense under section 4 of the Act of September 3, 1954, since the benefits of that statute apply only to aliens who have committed only one such offense.
CHARGES:
Warrant: Act of 1952 -- Section 241(a)(4) -- Convicted of two crimes
involving moral turpitude, after entry, not arising out of a single
scheme of criminal misconduct.
Discussion: This case is before us on appeal from the decision of a
special inquiry officer dated January 18, 1955, holding the alien
deportable on the warrant charge. Respondent, a 57-year-old native and
citizen of Hungary, last entered the United States on November 11, 1911,
at Philadelphia, Pennsylvania, for permanent residence.
Respondent was convicted on April 4, 1929, on a plea of guilty in the
Recorder's Court, Wayne County, Michigan, of the crime of uttering.
According to the information, on February 4, 1929, respondent uttered
and published as true a false, forged payroll check for $20.90, payable
to L B and endorsed in that name. Respondent was sentenced to
imprisonment for 2 to 14 years. Respondent was paroled on December 11,
1930, and discharged from any further service of his sentence on April
21, 1932.
Section 28.446 of the Michigan Statutes reads as follows:
Any person who shall utter and publish as true, any false,
forged, altered or counterfeit record, deed, instrument or other
writing mentioned in the preceding section, knowing the same to be
false, altered, forged or counterfeit, with intent to injure or
defraud as aforesaid, shall be guilty of a felony, punishable by
imprisonment in the state prison not more than fourteen (14)
years. (Emphasis supplied.)
Since section 28.446 contains the words "with intent to defraud,' the
test set out in Jordan v. DeGeorge, 341 U.S. 223 (1951), is applicable.
In that case, the Supreme Court determined that offenses containing an
inherent fraud element, as in the present case, involve moral turpitude.
Hence, respondent's conviction for uttering in Michigan in 1929 was a
conviction for an offense involving moral turpitude.
On October 4, 1940, respondent was convicted on a plea of guilty in
the Recorder's Court, Wayne County, Michigan, of simple larceny of one
sledge hammer, one vice, one hacksaw (total value of $3.00). Respondent
was sentenced to 60 days' imprisonment in the Detroit House of
Correction.
The pertinent sections of the Michigan Statutes provide as follows:
Section 28.588. Any person who shall commit the offense of
larceny, by stealing, of the property of another, any money, goods
or chattels, * * * if the property stolen exceeds the value of
fifty (50) dollars, shall be guilty of a felony, punishable by
imprisonment in the state prison not more than five (5) years or
by fine of not more than two thousand five hundred (2,500)
dollars. If the property stolen shall be of the value of fifty
(50) dollars or less, such person shall be guilty of a
misdemeanor.
Section 28.772. A person convicted of a crime declared in this
or any other act of the state of Michigan to be a misdemeanor, for
which no other punishment is specially prescribed by an statute in
force at the time of the conviction and sentence, shall be
punished by imprisonment in the county jail for not more than
ninety (90) days or by a fine of not more than one hundred (100)
dollars, or by both such fine and imprisonment.
Section 4 of the Act of September 3, 1954 (Public Law 770, 83d Cong.)
provided that persons convicted of petty offenses should not be
considered excludable under section 212(a)(9) as persons convicted of
crimes involving moral turpitude. The test of a "petty offense' under
the Act of September 3, 1954 (P.L. 770, 83d Cong.) is that the statutory
penalty must not exceed one year and that the actual punishment meted
out by the court shall not be more than six months' imprisonment (18
U.S.C. 1(3); Cong. Rec., p. 14505 (August 20, 1954), p. 14609 (August
20, 1954); Matter of C , E-092142, Int. Dec. No. 635 (B.I.A., 1954);
Matter of H , A-6060587, Int. Dec. No. 658 (B.I.A., 1954)).
Because section 4 of the Act of September 3, 1954, /1/ specifically
applies only to aliens who have committed a single petty offense, this
statute has no bearing on the present case. On the other hand, larceny
in Michigan was a crime involving moral turpitude, for the offense of
larceny has uniformly been held as such a crime (United States ex rel.
Meyer v. Day, 54 F.(2d) 336 (C.C.A. 2, 1931); Matter of M , 2, I. & N.
Dec. 530 (B.I.A., 1946)). Hence, respondent has been convicted of two
crimes involving moral turpitude within the meaning of section 241(a)(
4).
The special inquiry officer noted in denying discretionary relief
that respondent was unable to prove the required good moral character
during the past five years because he was a habitual drunkard. While
counsel contests this conclusion, he has offered no additional evidence
to supplement that already in the record below. During the hearing held
on November 12, 1954, Dr. M S H , resident psychiatrist at Wayne County
General Hospital in Eloise, Michigan, testified that from his own
personal knowledge he could state that respondent has been a habitual
drunkard since September 15, 1954, and that from a reading of hospital
records, he could conclude that respondent had been a chronic alcoholic
since May 14, 1953.
Dr. H stated that respondent had been committed to the hospital for
treatment by the Wayne County Probate Court upon a declaration of mental
incompetency and admitted to the hospital on May 14, 1953. Since that
time, hospital records reveal that respondent has managed to leave the
hospital surreptitiously on several occasions (the last of which was
July 15, 1954), and immediately began drinking heavily, necessitating
his immediate and forcible return to the hospital at the instance of
relatives. On the basis of this testimony, respondent clearly comes
within section 101(f)(1) and is thereby unable to prove good moral
character and barred from relief.
For these reasons, the appeal is dismissed.
Order: It is hereby ordered that the appeal be dismissed.
(1) Section 4. Any alien who is excludable because of the conviction
of a misdemeanor classifiable as a petty offense under the provisions of
section 1(3) of Title 18, United States Code, by reason of the
punishment actually imposed or who is excludable as one who admits the
commission of such misdemeanor may hereafter be granted a visa and
admitted to the United States, if otherwise admissible: Provided, That
the alien has committed only one such offense. (Emphasis supplied.).
Subversive -- International Workers Order.
Administrative notice may not be taken of affiliation between the Communist Party and the International Workers Order.
CHARGES:
Warrants: (Both aliens) Act of 1918, as amended -- Has been after
entry member of the following class set forth in section 1 of said act:
An alien who was a member of a section, subsidiary, branch, affiliate or
subdivision of the Communist Party of the United States, to wit:
International Workers Order.
Discussion: These are appeals from the orders of the special inquiry
officer requiring the deportation of the aliens on the ground stated
above. The aliens were given hearings at separate times but are both
represented by the same counsel and the issues in each case are similar.
The cases will therefore be considered together.
S is a 74-year-old married male, a native and citizen of
Czechoslovakia, who has been a permanent resident of the United States
since 1923 when he was lawfully admitted for permanent residence. C is
a 57-year-old married male, a native of Germany and citizen of Italy,
who has been a permanent resident of the United States since 1923 when
he was admitted for permanent residence. The record establishes that
each alien had been a member of the International Workers Order, S from
1933 to 1952 and C from 1941 to 1951, and that each was active in the
affairs of his lodge. In the case of S the record establishes he was
active in the national organization of International Workers Order for a
period of about 20 years.
At the hearing each alien stood mute and refused to testify. After
addressing a series of questions to the aliens concerning many matters,
including their membership in IWO and its affiliation with the Communist
Party, the Government rested without introducing any evidence as to the
affiliation of IWO with the Communist Party. The aliens introduced no
defense. The special inquiry officer found that such affiliation
existed because this Board had decided in Matter of D , A-5390614, Int.
Dec. No. 339 (4, I. & N. Dec. 578), a case involving neither S nor C ,
that the International Workers Order had been affiliated with the
Communist Party.
It was error to take administrative notice of the subversive nature
of the IWO (Matter of H , A-9682749, A.G., Nov. 14, 1947, unreported).
We believe that affiliation must be established in each case where
deportation was sought of a member of IWO on the ground that the
organization was affiliated with the Communist Party. Such proof does
not exist herein. The proceedings will therefore be ordered reopened to
enable the Government to adduce evidence as to the character of IWO.
Careful consideration was given to the arguments of the Service
representative before we reached our conclusion.
Order: It is ordered that action in accordance with the foregoing be
taken.
Discussion: The special inquiry officer ordered both respondents
deported on the ground set forth above. The Board of Immigration
Appeals held it was error to take administrative notice of the
subversive nature of the International Workers Order and ordered the
hearings reopened for the introduction of evidence to establish that the
said organization was affiliated with the Communist Party of the United
States. The Service disagrees with the view of the Board.
The International Workers Order has been the subject of investigation
by both the executive and legislative branches of the Government and has
been the subject of judicial proceedings in the State of its
incorporation. A review of the contents of some of the reports and the
character of the action taken with respect to the organization is
essential to a consideration of the issue here presented.
The Special Committee on Un-American Activities of the House of
Representatives after extensive investigation and study concluded that
the International Workers Order was one of the most effective Communist
front movements; that the organization contributed large sums of money
to Communist Party campaigns and supported Communist Party endorsed
candidates for public office (Report of Special Committee on Un-American
Activities, House of Representatives, 76th Congress, 1st session,
January 3, 1939; Report of Special Committee on Un-American Activities,
House of Representatives, 76th Congress, 3d session, January 3, 1940;
Report of Special Committee on Un-American Activities, House of
Representatives, 78th Congress, 2d session, March 29, 1944). In a
report on the American Slav Congress and associated organizations it was
described as one of the strongest Communist organizations (Congressional
Committee on Un-American Activities, House Report No. 1951, 81st
Congress, 2d session, April 26, 1950. See also House Report No. 448,
78th Congress, 1st session, May 14, 1943, and House Report No. 812, 77th
Congress, 2d session).
Numerous state legislative bodies have investigated the activities of
the organization and found that it followed the Communist Party line;
that it actively supported all Communist causes and supported Communist
Party candidates for public office (California Committee on Un-American
Activities, Report, 1948, pp. 267, 268, and 271; Massachusetts House
Committee on Un-American Activities, Report, 1938, pp. 308, 398, and
570; Pennsylvania Board of Assistance, January 1942; Legislative
Document No. 49, 1942, New York State Sub-Committee, Joint Legislative
Committee on Subversive Procedures, etc.).
Over a period of years several Attorneys General of the United States
have also had frequent occasion to consider the character of the
International Workers Order. Attorney General Francis Biddle considered
the organization one of the strongest Communist organizations (Report of
Attorney General Francis Biddle, Congressional Record, September 24,
1942, pp. 7444, 7447, 7688). The organization was cited as subversive
and Communistic by Attorney General Tom Clark in letters to the Loyalty
Board, released December 4, 1947, and September 21, 1948 (13 F.R. 1471,
1473, March 20, 1948; 13 F.R. 6135, 6137, October 21, 1948). In
connection with the federal security program, the International Workers
Order has consistently been designated as a Communist organization.
On or about the 19th day of August, 1953, the Attorney General filed
with the Subversive Activities Control Board a petition for an order
requiring the International Workers Order, Inc., to register with the
Attorney General as required by section 7(b), (c), and (d) of the
Internal Security Act of 1950. In paragraph III were included numerous
specifications charging that the International Workers Order was
directly dominated and controlled by the Communist Party and had been
primarily operated for the purpose of giving aid and support to the
Communist Party. Because the organization had been dissolved by the
State of its incorporation, the proceedings were subsequently dismissed
as moot by the Court of Appeals for the District of Columbia.
Nevertheless, the Attorney General must have instituted these
proceedings only after investigation had established to his satisfaction
that the charges could be sustained and that the International Workers
Order was affiliated with the Communist Party of the United States.
The Board of Immigration Appeals has also had occasion to consider
the proscribed character of this organization. In Matter of D ,
A-5390614, Int. Dec. No. 339, 1951 (4, I. & N. Dec. 578), 13 witnesses
testified at the deportation proceedings and 85 exhibits were introduced
by the Government. After a hearing which lasted 19 days and consisted
of 2,165 pages of testimony, the hearing officer concluded that the
International Workers Order was affiliated with the Communist Party of
the United States. The Board affirmed these findings and held that such
affiliation had been established.
The courts, too, have been required to scrutinize the activities of
the International Workers Order. In Application of Bohlinger: In re
International Workers Order, Inc. (106 N.Y.S.(2d) 953, Spec. Term N.Y.,
1951) the Superintendent of Insurance of the State of New York filed an
application for an order permitting him to take possession of the
property, to liquidate the body, and to dissolve the corporate existence
of the International Workers Order, Inc. The Superintendent charged
that the continued operation of the society would be hazardous to its
policy holders, creditors, and the public, since the corporation had as
its paramount policy its allegiance to the Communist Party. This was an
adversary proceeding in which the corporation was represented by astute
counsel (see comment of Justice Greenberg, 127 N. Y.S.2d 142, 144 --
1953) who vigorously defended against the charges brought by the
Superintendent of Insurance. The hearing on this petition took
approximately 11 weeks during which 46 witnesses were examined and
cross-examined and 350 exhibits embracing books, magazine articles,
speeches, and other material were received in evidence. In addition to
attorneys for the International Workers Order, the Court permitted
attorneys for a policy holders' committee to appear and examine and
cross-examine witnesses. The record of this hearing filled
approximately 5,200 pages. At the conclusion of this hearing the judge
summarized his findings as follows:
Some of its chief activities as established by the evidence
are: support and participation in political campaigns of the
Communist Party; support of the "Daily Worker' and the "Workers
Press'; serving as a spawning and recruiting ground for members
of the Communist Party; participation in the campaign to raise
money for the 11 indicted Communist leaders; dissemination of
Communist literature, political and economic theory and current
news interpreted in line with Communist doctrine and ideology;
development of admiration and sympathy for the U.S.S.R. and
encouragement of antipathy toward every program undertaken by the
Government of the United States which was not wholly and
completely in accord with the policies and programs of the U.S.S.
R.; participation in causes and campaigns for civil rights, labor
rights, peace, war effort, disarmament, etc., espoused by the
Communist Party.
The findings of the trial judge that the IWO was operated as an arm
of the Communist Party of the U.S.S.R. was affirmed by the Appellate
Division (280 App.Div. 517; 113 N.Y.S.2d 755, 757 -- 1st Dept. -- 1952)
and the Court of Appeals of the State of New York (305 N.Y. 258; 112
N.E.2d 280 -- 1953). Certiorari was denied by the Supreme Court (346
U.S. 857) and rehearing was also denied (346 U.S. 913).
Despite the extensive and comprehensive investigations conducted by
the legislative bodies of both the Federal and State governments,
despite the protracted hearings before the courts and the Board itself,
despite the numerous investigations conducted at the direction of the
Attorney General, all of which result in findings based upon an
overwhelming amount of evidence that the IWO promoted the ideologies of
the Communist Party; that it supported both financially and otherwise
the Communist Party of the United States in its political activities;
and that it was affiliated with the Communist Party in every sense of
the word, the Board now holds that it may not take official cognizance
of the fact that the IWO was affiliated with the Communist Party of the
United States during the period of its existence. There is no legal
support for this view.
The Board may and should take judicial notice of the official reparts
of legislative and Congressional committees where the reports contain
findings of fact on a matter which is at issue in a proceeding before it
without the formal introduction of the reports into evidence
(Stasiukevich v. Nicolls, 168 F.(2d) 474, 479 (C.C.A. 1 -- 1948)). Just
as a court may take judicial notice of its records and files in other
cases (Ira S. Bushey and Sons v. W. E. Hedger Transp. Corp., 167 F.(2d)
9, Footnote 2 on p. 12 (C.C.A. 2 -- 1948), cert. den. 335 U.S. 816;
Latta v. Western Inv. 9 -- 1949), cert. den. 337 U.S. 9 $$ 1949), cert.
den. 337 U.S. 940), so may an administrative agency take official
cognizance of its prior proceedings involving the same issue (Ex parte
Masamichi Ikeda, 68 F.(2d) 276, 278 (C.C.A. 9 -- 1933); Jung See v.
Nash. 4 F.(2d) 639 (C.C.A. 8 -- 1925); United States ex rel. Mg Kee
Wong v. Corsi, 65 F.(2d) 564, 565 (C.C.A. 2 -- 1933); Wong Gim Ngoon v.
Proctor, 93 F.(2d) 704, 708 (C.C.A. 9 -- 1937)).
The Attorney General, who is responsible for the administration of
the immigration laws, has concluded upon every occasion that the
question came before him that the IWO is a subversive organization
affiliated with the Communist Party. If the decision of the Board of
Immigration Appeals is permitted to stand, the Attorney General must
efface from his memory in each and every case where the question is at
issue in a deportation proceeding the contents of the investigations and
reports compiled at his behest and the orders and proceedings instituted
upon his direction. There is no reason to apply such a rigid rule of
evidence in this administrative procedure.
Insofar as the decision of the New York courts is concerned, it must
be remembered that the IWO was a corporate entity which owed its very
existence to the state and was subject to dissolution by the state.
That state saw fit to terminate the corporate existence of this
organization because of its subversive activities and that decision was
affirmed without exception by the judges of all the appellate courts
which reviewed the case. Certainly, we should take official cognizance
of the reported decision of the courts of the state where the
organization was incorporated.
In its memorandum the Board erroneously cited the unreported case of
Matter of H , A-9682749, A.G., November 14, 1947, in support of its view
that it could not take administrative notice of the subversive nature of
the IWO. In a notation dated November 10, 1947, on that case, the then
Attorney General expressly stated he thought the court would take
judicial notice of the character and purpose of the Communist Party but
he did not pass on this question as it was unnecessary. The order of
the Board of Immigration Appeals was affirmed solely on the ground of
inadmissibility arising under the Passport Act of 1918, as amended.
Consequently, Matter of H supports the view presented by the Service.
"Courts will take judicial notice of all facts which are generally
known and accepted' (Mills v. Denver Tramway Corp., 155 F.(2d) 808, 811
(C.C.A. 10 -- 1946)). Since the courts and legislative bodies of both
the Federal and State governments, the executive branch of the Federal
government, and the courts of the State of incorporation have all
investigated the operations and activities of the IWO and since all have
uniformly concluded that the IWO was affiliated with the Communist
Party, manifestly we may now conclude that the fact is one "generally
known and accepted.'
Taking official cognizance of the fact that the IWO was affiliated
with the Communist Party will constitute no denial of due process to the
aliens. The aliens are not precluded from introducing evidence which
they deem will overcome the evidence of the prior investigations and
reports (Stasiukevich v. Nicolls, 168 F.(2d) 474, 479 (C.C.A. 1 --
1948)). The issue here presented is whether the Government must
introduce evidence of such affiliation in the absence of any
countervailing evidence on the question. Furthermore, the conclusion
that the IWO was affiliated with the Communist Party does not
automatically render every member thereof deportable. The Government
must still prove that the aliens at the time of their membership were
aware of that affiliation (Matter of C , A-4894489, A.G., March 14,
1955, Int. Dec. No. 669).
The Service contends that we may now take judicial notice of the
affiliation of the IWO with the Communist Party because that fact has
been so well established and is now so well known. The Service does not
here contend that the fact of affiliation was so well known at the time
of the aliens' membership that they would be presumed to have knowledge
of the fact. Proof of such knowledge must be presented by the
Government in each case.
Motion is hereby made that the Board of Immigration Appeals
reconsider and withdraw its order directing a reopening of the
proceedings and dismiss the appeal from the decision of the special
inquiry officer.
Discussion: The facts have been fully stated in previous orders.
The Commissioner requests that we reverse our decision of May 19, 1955,
holding that it is prejudicial error for a special inquiry officer to
take official notice that the International Workers Order (IWO) was
affiliated with the Communist Party of the United States. We ordered
the proceedings reopened to enable the Service to present evidence on
the issue of affiliation. The motion will be denied.
No evidence to establish affiliation is contained in the record. The
aliens were not informed at the hearing or prior to decision that
official notice was to be taken of any fact. The special inquiry
officer concluded that affiliation existed, but on the issue stated only
that this Board in Matter of D , A-5390614, 4, I. & N. Dec. 578, a case
involving neither of the respondents, had ruled that affiliation had
been established.
We believe that in these proceedings an error has occurred which is
so prejudicial that it requires the reopening of proceedings. The error
was committed when the special inquiry officer based his decision, which
is of an adjudicatory nature, upon evidence not made known to the alien
prior to the decision -- if the decision is based on evidence at all
(Baltimore & Ohio Railroad Co. et al. v. United States, 264 U.S. 258;
United States v. B. & O. Southwestern Ry., 226 U.S. 14 (1912);
Interstate Commerce Commission v. Louisville & Nashville R.R. Co., 227
U.S. 88 (1913); United States v. Abilene So. Ry. Co., 265 U. S. 274;
Ohio Bell Tel. Co. v. Public Utilities Commission, 301 U.S. 292; Funk
v. Commissioner of Internal Revenue, 163 F.(2d) 796 (C.C.A. 3, 1947);
Stroh Products Co. v. Davis, 8 F.(2d) 773 (D.C., E.D. Mich., 1925); In
re Stridacchio, 107 F.Supp. 486 (U.S. D.C., N.J., 1952); Stasiukevich
v. Nicolls, 168 F.(2d) 474, 479 (C.C.A. 1, 1948)).
The decision of the special inquiry officer, if based upon evidence,
was based upon evidence not made known to the aliens. There was no
advance information by the Service or the special inquiry officer
concerning the facts of which the special inquiry officer would take
notice. The Service made no request at the hearing that the special
inquiry officer take official notice of any facts or even the conclusion
that affiliation existed. There was no advice given at the hearing by
the special inquiry officer that he would take official notice of
anything. (There was no concession by the respondents that affiliation
existed.) As we have pointed out, the order of the special inquiry
officer merely refers to the Board's conclusion in the Matter of D ,
supra. What facts, if any, in Matter of D , that the special inquiry
officer relied upon are not known to respondents or to us. To state
generally that Matter of D is relied upon, is "tantamount to giving no
notice whatsoever' of the facts relied upon. The decision of the
special inquiry officer was made upon evidence that the aliens had no
opportunity to refute. Therefore, even if the facts were susceptible to
official notice, there was a procedural failure which deprived the
aliens of due process.
We come now to the Service's contention that evidence of the
affiliation did not have to be produced because it was proper to take
official notice of the existence of the affiliation. The Service feels
that a court would have taken judicial notice on the basis of the
circumstances which existed and, therefore, an administrative official
could take notice of the same fact.
We believe that the rules relating to the taking of official notice
in deportation proceedings should in essence be those which are
applicable to court proceedings (5 U.S.C.A. 1007(d); Senate Report No.
752, 79th Congress, 1st session; see Ohio Bell Tel. Co. v. Public
Utilities Commission, 301 U.S. 292). However, we do not believe that a
court would have taken judicial notice of the affiliation of the
International Workers Order and the Communist Party.
No case has been cited to us where a court has taken judicial notice
of the existence of affiliation. We must, therefore, go on general
principles applicable to the subject of judicial notice. While judicial
notice may be taken of other matters, it is with the judicial notice of
facts so notorious as not to be the subject of reasonable dispute or of
propositions of a generalized knowledge capable of immediate and
accurate demonstration by easily accessible sources of indisputable
accuracy with which we are concerned (A.L.I. Model Code of Evidence,
Rules 801-06 (1942); 9 Wigmore, Evidence, sec. 2565-83, 3rd ed.).
Judicial notice will not be taken of a fact reasonably open to
dispute. We believe the record presented to us establishes that the
issue of affiliation is still in the disputable stage. The term
"reasonably disputable' is a broad one, and when interpreted in the
light of past experience reveals to us that the issue of affiliation
must still be considered in the category of items reasonably disputable.
The liberality of the construction given the term "reasonably
disputable' may be seen from an examination of a situation analogous to
that before us. For example, prior to 1950 when deportation was sought
of an alien on the ground that he had been a member of an organization
seeking the overthrow of the Government by force or violence, mere proof
that the alien belonged to the Communist Party did not establish that he
had belonged to an organization which taught the overthrow of the
Government by force or violence. The majority rule was that the
subversive nature of the Communist Party had to be established in each
case by evidence. This was so despite the fact that for over thirty
years, decisions of courts and pronouncements of the legislative and
executive branches of Federal and state government had characterized the
Communist Party as a subversive organization (Loew's, Inc. v. Cole, 185
F.(2d) 641, C.A. 9 (1950); Harisiades v. Shaughnessy, 342 U.S. 580;
Galvan v. Press, 347 U.S. 522; Ex parte Fierstein, 41 F.(2d) 53, C.A.
9; Black v. Cutter, 278 2d 905 (Calif.); Carlson v. Landon, 187 F.(2d)
991, C.A. 9, affd. 342 U.S. 524; see State v. Reeves, 106 (2d) 729, 731
(Wash.)). Neither the common knowledge of mankind nor the accumulation
of official conclusions as to the subversive nature of the Communist
Party amassed over so many years took the issue as to the subversive
nature of the Communist Party out of the realm of reasonable dispute.
How much less reason is there to accept the affiliation of the Communist
Party and the IWO as an indisputable fact on the basis of the meager
matters from which the Service asks that we find affiliation existed.
(See pp. 3 and 4 of Matter of C , A-4894489, Int. Dec. No. 669, for a
previous Service view of the notoriety of the existence of affiliation.)
The evidence relied upon by the Service consists of six reports
issued by committees of the Federal legislature in the years between
1939 and 1950; four reports of committees of state legislatures issued
in the years between 1938 and 1948; one case considered by the New York
State courts between 1951 and 1953; three statements made between 1942
and 1948 by Attorneys General of the United States, including the
listing of the IWO as a subversive organization for Federal Civil
Service loyality purposes; the action of the Attorney General in August
1953 in filing a petition for an order requiring the IWO to register as
a Communist front organization; and the fact that in Matter of D ,
supra, this Board, upon the evidence there presented, had found that
affiliation existed. The paucity of this authority in contrast to the
abundance of authority on the issue of the subversive nature of the
Communist Party -- an abundance which was nevertheless found wanting --
clearly illustrates it would be erroneous to take official notice of the
existence of affiliation.
The reports are cited by the Service to show that the existence of
affiliation is no longer a fact subject to reasonable dispute. We have
shown by analogy that the Service's conclusion is not justified. For
this reason and because the reports are not in evidence, we have not
made a detailed examination of all the reports cited by the Service. We
note, however, that the Service does not establish that any of the
authorities cited took official notice of the existence of affiliation,
and in each case we have examined we have found that evidence of some
nature was considered. In the court case, as pointed out by counsel,
considerable evidence was taken and perusal of the opinions reveals the
issue of affiliation was decided only after "unusually long and
exhaustive' anaylsis. Interestingly enough, the trial court refused to
give any effect to the fact that the Attorney General had listed the IWO
as a subversive organization for Civil Service loyalty purposes and
attached sharply the thought that the action of the Attorney General
should be considered evidence (Application of Bohlinger, 106 New York
Supp.2d 953, 958, 959). Neither the trial court, nor the appellate
courts, nor the administrative actions prior to trial were based upon
official notice of the affiliation of IWO with the Communist Party. In
the Attorney General's case the Government was ready to present evidence
on the issue of affiliation but the default of IWO on technical grounds
made that unnecessary. So, it is clear that evidence was the basis of
the conclusion as to the nature of IWO. True, the evidence may have
been ex parte in some cases; it was hearsay in others; in some it may
have been based on restricted information, but in any event, it is
implicit in all the cases that the statements were based upon some
evidence rather than upon notice.
Because of the reliance placed upon the proceedings commenced by the
Attorney General in August 1953 requesting that IWO be designated "a
Communist front organization' and because it is the last official action
cited by the Service, we will examine that proceeding in some detail.
The petition filed by the Attorney General requested that the Subversive
Activities Control Board order IWO to register as an affiliate of the
Communist Party. This petition lists twelve pages of facts from which
the Attorney General concluded that affiliation had existed. The
petition is made upon information and belief, and was signed by the
Attorney General who stated that the source of the information and the
grounds of belief were investigative reports made by the Federal Bureau
of Investigation. There is no reference to legislative reports or court
decisions concerning the vital issue of affiliation.
Shortly before the decision was made, the IWO came under the sole
supervision of the New York State Superintendent of Banking. The
Superintendent of Banking refused to oppose the petition of the Attorney
General and refused to authorize the expenditure of IWO funds to contest
the action. Former officials of IWO and members were denied the right
to oppose the petition on the ground that they were not proper parties.
The Subversive Activities Control Board then ruled that there was a
default on the part of IWO. They found that "the Attorney General had
stood ready to submit evidence in support of the allegations of the
petition,' and ruled that affiliation existed.
This examination reveals to us that the Attorney General who
presumably had before him all the matters cited by the Service, did not
take official notice of the existence of affiliation and furthermore, it
reveals that the decision made on his petition should not remove the
issue from the realm of reasonably disputable fact.
We have found that the matter of the affiliation of IWO and the
Communist Party has not received such thorough litigation and
consideration that it may be safely placed in the area of facts not
reasonably subject to dispute. We find also that the existence of
affiliation is not a "notorious' fact. (See Matter of C , A-4894489,
Int. Dec. No. 669, supra, where the Attorney General on March 14, 1955,
held that evidence of record must establish that an alien member of IWO
who was an officer of the organization could not be deported as a member
of an affiliate of the Communist Party if he denied knowledge of the
affiliation and it was not shown that he had knowledge of the existence
of affiliation. We do not believe such a ruling would have been
possible had the existence of the affiliation been as notorious a matter
as the Service claims.)
Detailed analysis of the cases cited on the top of page 5 of the
Service motion will not be undertaken in this order. We have carefully
considered each of the cases. None states that judicial notice may be
taken of the affiliation of the IWO with the Communist Party. The cases
are distinguishable on various grounds. Some involve consideration of a
previous case involving the same parties or their witnesses. For the
most part, the previous cases were made part of the record in the last
proceeding and opportunity for refutation was permitted. In one case
where a report of an investigative nature was not made a part of the
record it was used only for the limited purpose of checking and weighing
evidence which had been properly introduced. In Jung See the recital of
facts would make it appear that the matter complained of although not
made a part of the record was nevertheless properly considered;
however, Jung See was cited by a subsequent court as standing for the
proposition, among others, that a fair hearing requires that the
decision shall be based only on evidence produced at the hearing
(Gambroulis v. Nash, 12 F.(2d) 49, 52, C.A. 8 (1926)). In Latta the
court took judicial notice that it had decided adversely to Freeman an
issue again raised by Latta. However, the court did not state that it
was unnecessary to consider evidence in Latta's case. In fact, the
court went on to consider the evidence presented by Latta and his
opponent and it was only on the basis of the evidence in the Latta case
that a decision was made. Latta is, therefore, no authority for the
Service position. Latta is in line with the well-established rule that
while a court may at times take judicial notice of the existence of
proceedings in its court, it does not mean the court "can give weight to
the conclusions embodied' in the proceedings noticed, in deciding the
issues in another action involving different parties (Fox v. Schaeffer,
41 A.2d 46 (Conn.); White v. Central Dispensary, 99 F.( 2d) 355, 359,
C.A. D.C.).
The latest of the cases cited by the Service which involve
immigration matters was decided in 1938, yet despite the many cases on
the nature of the Communist Party decided after 1938 and prior to 1950
when legislative intervention changed the picture, it is not shown that
the weight of authority permitted judicial notice to be taken of the
nature of so notorious an organization as the Communist Party
(Schneiderman v. United States, 320 U.S. 118, and cases cited in this
order).
Finally, the court cases cited involving immigration matters must all
be considered in light of the fact that they were decided prior to 1952
when there was no statutory requirement as there is now that the
decision must be made "upon a record made in a proceeding before a
special inquiry officer' (section 242(b), Immigration and Nationality
Act; 8 C.F.R. 242.54(a)).
Our citation of Matter of H , A-9682749, A.G., November 14, 1947,
unreported, which is found in our original decision, is criticized in
the Service motion. In Matter of H , supra, we stated that it was
improper to take official notice of the nature of the Communist Party.
We find nothing in the order of the Attorney General contrary to the
Board's position in the case and we are not informed of any official
action by the Attorney General in any of the many cases involving the
Communist Party where it was stated that it was proper to take judicial
notice of the nature of the Communist Party prior to 1950.
In summary, we find that the affiliation of IWO and the Communist
Party is not a notorious fact and the issue still remains in the realm
of facts reasonably disputable. The finding of affiliation as a matter
of official notice by the special inquiry officer was therefore not
justified. The record contains no evidence of affiliation (and
therefore nothing which can be reviewed by the court on such an issue).
Prejudicial error was, therefore, committed by the special inquiry
officer which required reopening of the proceeding. This we have
ordered.
Order: It is ordered that the motion be and the same is hereby
denied.
The Board has held that the special inquiry officer committed error
in deportation proceedings when he took administrative notice of the
affiliation between the Communist Party of the United States and the
International Workers Order. It is believed that the Board and not the
special inquiry officer is in error.
By motion dated May 19, 1955, the Service requested the Board to
reconsider its decision. The contentions of the Service and the
authorities in support thereof are fully set forth in the Service motion
and need not be repeated here. The Board not only adhered to its
original view but interposed a new objection that notice to the
respondent of intent to rely upon administrative notice was required and
the failure to give such notice constituted a denial of due process.
The primary issue is whether official cognizance of such affiliation may
be taken and little consideration need be given to the added objection
since it is one which may, if necessary, be easily remedied.
Nevertheless, the authorities do not support the position taken by the
Board.
Only three of the cases cited by the Board in its memorandum decision
dated September 8, 1955, even considered the question of judicial notice
and these cases do not support the contention of the Board. In Ohio
Bell Tel. Co. v. Public Utilities Commission, 301 U.S. 292, the
Commission conducted an investigation as to the value of certain
property and refused to produce the reports upon request. Furthermore,
the Court pointed out that the value of property is a subject upon which
experts disagree and, consequently, is not an appropriate one for
judicial notice. In Funk v. Commissioner of Internal Revenue, 163
F.(2d) 796, at page 801, the Court stated: "However, exceptions are
admitted, and it may indeed be more appropriate to say that the extent
to which the doctrine will be applied depends to a large degree upon
considerations of expediency and justice under the particular
circumstances of a case, as well as upon what it is that a court is
asked to notice.' The Court in Stasiukevich v. Nicolls, 168 F.(2d) 474,
held that reports of congressional committees may be judicially noticed,
even though not introduced into evidence and, therefore, supports the
position of the Service. Not one case cited by the Board supports the
view that notice must be given to the respondent of an intent to rely
upon public records such as legislative reports, judicial decisions, and
prior administrative decisions of the very agency before which the case
is pending.
In support of its contention that official cognizance may not be
taken of the affiliation between the Communist Party and the
International Workers Order, principal reliance is placed by the Board
upon the fact that it has never been done before. If that were a valid
argument, then the doctrine of judicial notice would be but a hollow
phrase since there could never arise a first time when the court might
apply it. However, the Board overlooks the fundamental fact that
judicial notice is an ever expanding and not a static concept. Matters
formerly the subject of dispute eventually become so well known and so
well established that they are accepted without the introduction of
evidence (1 Jones, Commentaries on Evidence, sec. 367, p. 642; 31 C.J.
S., Evidence, sec. 7, p. 510). Furthermore, it is significant that in
Matter of C , E-131734, Int. Dec. No. 589 (B.I.A., 1954), in discussing
the character of the Communist Party of the United States, the Board
stated: "Moveover, if the basis upon which we have rested our decision
had not been available to us, we would have taken administrative note
that the Communist Party was one devoted to the overthrow of the
Government by force and violence. The mass of evidence which has been
accumulated, the pronouncements of Congress and other legislatures, the
courts, and our experiences in deportation and exclusion proceedings
involving membership in the Communist Party, justify such a conclusion
(citations omitted).
Whatever doubts may have existed in the past, the fact of affiliation
between the Communist Party and the International Workers Order is so
well established now that administrative notice may be taken thereof.
Matter of C , A-4894489, Int. Dec. No. 669, cited by the Board has no
application to the issue herein presented. The question to be
determined here is not whether the fact of affiliation was generally
known and established at the time of membership, but whether such
affiliation is now generally known as having existed at the time of
membership. The administrative notice will extend only to the fact of
affiliation and not the respondent's knowledge thereof.
Before engaging the services of large numbers of former members of
the Communist Party of the United States and the International Workers
Order to act as Government witnesses in deportation proceedings, before
undertaking the reproduction of numerous pamphlets and other documents
for use as exhibits, with the consequent expenditure of great sums of
money, in order to establish the fact of affiliation in each and every
deportation case, it is believed that the decision of the Board of
Immigration Appeals should be referred to the Attorney General for
consideration.
In the event that the Attorney General concludes that administrative
notice may be taken of the affiliation, it will also be necessary, in
order to clarify the decision of the Board, to determine:
1. Whether the intention of the Service to rely upon
administrative notice to establish affiliation need be given to
the respondent in advance despite the fact that affiliation has
been established by public records such as legislative reports,
litigation in the courts, and the prior decision of the Board.
2. If notice is required, the nature and character of the
notice. The Board implies that notice of an intent to rely upon
the conclusion of affiliation is insufficient but that each and
every fact relied upon to support the conclusion of affiliation
must be disclosed.
Request is hereby made to the Board of Immigration Appeals that this
case be referred to the Attorney General for review in accordance with
the authority contained in 8 C.F.R. 6.1(h)(1)(iii).
Discussion: The facts have been fully stated in previous orders.
Briefly, C and S are married male aliens, who have been permanent
residents of the United States since their lawful admission thirty-two
years ago. The record establishes that both men were members of
International Workers Order, each as late as at least 1951. Their
deportation is sought on the gound that IWO was an affiliate of the
Communist Party and that they as members of IWO, thus were members of an
affiliate of the Communist Party.
To prove that these aliens are deportable as charged, it is, of
course, necessary that the Service establish that IWO was in fact an
affiliate of the Communist Party. Neither the special inquiry officer
nor the Service relies upon the records created in the deportation
proceedings as establishing the existence of affiliation; both rely
upon the taking of official notice. The pertinent matters of record on
the issue of affiliation, consisting of denials of the existence of
affiliation and a vague allusion to an act performed by IWO, or refusal
of the aliens to testify on the matter, were not mentioned by the
special inquiry officer in his decision. Without informing either alien
that he would take official notice of the existence of affiliation or
that he would consider evidence introduced by the Service to establish
affiliation in a nonrelating immigration case, the special inquiry
officer entered orders of deportation making the following finding of
fact:
That the International Workers Order from 1930 to 1939 and from
1945 or 1946 to 1950 was affiliated with the Communist Party of
the United States.
The only reason given for the conclusion that affiliation existed was
stated by the special inquiry officer as follows:
In a recent decision (Matter of D , A-5390614, Dec. 26, 1951,
Interim Decision 339), it was held that from 1930 to 1939 and from
1945 or 1946 to 1950, the International Workers Order was
affiliated with the Communist Party of the United States.
Matter of D , supra, was a deportation case which did not involve
either C or S .
The special inquiry officer's orders were entered in June 1953.
Appeals were taken to this Board. On May 19, 1955, /1/ we ordered
reopening of the proceedings so that the Service could produce proof of
affiliation. On September 8, 1955, we entered an order denying a
Service motion for reconsideration of our decision. The Acting
Assistant Commissioner, Examinations Division, now asks that these cases
be referred to the Attorney General.
The issue presented to us is the propriety of taking official notice
of the existence of the affiliation of IWO and the Communist Party. Our
position which has been set forth in detail in previous orders is,
briefly, as follows:
(1) If, the finding of affiliation was made as a matter of
official notice, the action was improper because the existence of
affiliation is neither a fact that is notorious nor is it one that
is not subject to reasonable dispute, so as to be in the field of
administrative notice.
(2) If, the finding of affiliation was made after consideration
of evidence submitted by the Service in Matter of D , supra, it
was improper because the decision would then have been made upon
evidence which was not a part of the record and which the aliens
had no opportunity to refute.
The Acting Assistant Commissioner is of the opinion that since we
would now be justified on our own accord in taking administrative notice
of "so well established' a fact as that of affiliation, we need not
confine ourselves to the question as to whether the special inquiry
officer acted properly in taking administrative notice of affiliation in
June 1953 when he entered his order. In our previous orders, we made
clear our belief that not only was the action of the special inquiry
officer in June 1953 without authorization, but that it would be
improper to take administrative notice at this time.
A recent decision dated June 10, 1955, lends support to our view. In
that case, an alien, a person who the evidence established had been a
member of IWO and two other organizations, sought to become a citizen by
naturalization. Other than a reference to the fact that IWO and the
other organizations were "designated by the Attorney General pursuant to
Executive Order 10450' no evidence was introduced by the Service as to
the character of the organizations. The Service opposed the alien's
petition on the ground that he had been a member of a proscribed
organization. The court granted the petition, holding that there was no
competent evidence that any of the organizations with which the
petitioner had been affiliated was of a proscribed nature. The court
stated, "I do not think that it was the intention of Congress that the
Immigration Service, by simply claiming that an organization, of which a
petitioner had been a member, was an organization of the proscribed
character, should be able to cast upon the petitioner the burden of
proving its acceptability' (Petition of Antisin, No. 259, U.S.D.C., S.
D.N.Y., June 10, 1955).
In this request for referral, the Acting Assistant Commissioner
states that our citation of certain cases is not in point. The cases
mentioned were cited for the proposition that it is error to decide
adversely to a party on the basis of evidence not a part of the record.
The citations properly stand for this proposition (and for the
proposition that where administrative notice may be taken, a party to a
deportation proceeding must be informed before an adverse decision is
made, that official notice was to be taken of a vital matter).
In accordance with the provisions of 8 C.F.R. 6.1(h)(1)(iii), this
case is referred to the Attorney General for review.
(1) These cases were heard by the Board on oral argument in August
1953. Decision was held in abeyance pending ruling by the Attorney
General in Matter of C , A-4894489, Int. Dec. No. 669, a test case
involving IWO membership. Matter of C was decided in March 1955.
The decision and order of the Board of Immigration Appeals in the
above-styled cases, embodying the Board's view that administrative
notice may not be taken of affiliation between the Communist Party and
the International Workers Order, are hereby approved.
Fine -- Liability under section 271 of Immigration and Nationality Act incurred even though due diligence observed.
Liability for fine pursuant to section 271 of the Immigration and Nationality Act is incurred for failure to prevent the landing of an alien passenger at a time or place other than as designated by immigration officers even though the carrier acted with due diligence in providing custody for the alien passenger.
IN RE: Plane "N-8224-H' (Flt. 454), which arrived at the port of
Miami, Florida, from foreign on August 16, 1954. Alien passenger
involved: A B L Y C .
Discussion: This matter is before us on appeal from a decision of
the District Director at Miami, Florida, dated December 21, 1954,
ordering that fine in the sum of $1,000 be imposed on National Airlines,
Inc., owners and/or agents of the above-described plane, for failure to
prevent the landing of the above-named alien passenger, at a time or
place other than as designated by immigration officers.
This passenger applied for admission as a visitor for pleasure for a
period of two weeks. He presented a valid Cuban passport and a valid
B-2 visa. The examining immigration officer ordered the alien detained
for further inquiry before a special inquiry officer. In this
connection, detention Form I-259 was executed. The passenger was then
transported to the Belfort Hotel, a place designated by the Service for
detaining aliens such as this one. The day following arrival the
passenger was ordered excluded by a special inquiry officer on the
ground that he was an immigrant not in possession of a valid immigrant
visa and not exempted from the possession thereof. Thereafter, the
carrier, through its duly acknowledged representative, accepted the
alien for deportation by executing Form I-259, Notice to Detain, Deport
or Remove Aliens; and the alien was removed by the carrier to the
Belfort Hotel, Miami, to await the next available flight abroad.
However, he absconded before the carrier could effect his deportation
and his whereabouts are still unknown.
The carrier urges that the evidence of record clearly shows that it
acted with all due diligence in presenting and providing custody in the
case of this alien passenger. Therefore, it urges that liability has
not been incurred under section 271 of the Immigration and Nationality
Act. The argument is that, in addition to the fact that it exercised
due diligence in the matter, it is relieved from liability by virtue of
the provisions of section 233(a) and (b) of the Immigration and
Nationality Act. That is, it is claimed that what took place here was a
"temporary removal' and not a "landing,' within the meaning of section
233(a); and that since it was a "temporary removal,' the carrier is
relieved of responsibility for the safekeeping of this alien passenger,
under section 233(b). In other words, the claim is that the carrier is
not responsible here because the alien passenger escaped during a
"temporary removal.'
We, however, find this contention to be without merit. In the first
place, Congress made it the duty, in enacting section 271 of the
Immigration and Nationality Act, of the owners, officers, and agents of
carriers to prevent the landing of aliens in the United States at any
time or place other than as designated by immigration officers.
Clearly, the intention of the statute was to make imperative the duty of
preventing such unlawful landings of aliens. That is, section 271 of
the Immigration and Nationality Act calls for the imposition of a
penalty where, as here, the persons specified in the statute failed in
their duty to prevent illegal entries. In other words, the statute
creates a positive duty on the part of the persons named therein to
prevent the illegal entry into the United States of any alien brought
here on a vessel or aircraft (See Matter of Plane NC-SJD-004,
F-0606-1286, 5, I. & N. Dec. 482).
On the basis of the foregoing, we find that a penalty has been
properly imposed in these premises. The alien passenger escaped from
the carrier's custody. Therefore, it failed to meet the duty imposed
upon it by the statute. Accordingly, this appeal must be dismissed.
However, the carrier has alternatively requested mitigation of the
fine imposed by the district director. In this connection, the carrier
asserts that it acted with all due diligence in presenting and providing
custody for this alien passenger. The carrier sets forth that he was
taken to a hotel designated as a place of detention by the Service.
Arrangements were made to effect the alien's deportation, but he escaped
prior to their completion. Under the circumstances, we think that
mitigation is merited.
Order: It is ordered that the appeal be and the same is hereby
dismissed.
It is further ordered that the amount of the penalty be mitigated to
the extent of $700. The remaining fine will be $300.
Expatriation -- Italian Law of June 13, 1912 -- Naturalized citizen formerly of Italian nationality -- Dual nationality status of minor child -- Timely return to United States under Section 401(a) of Nationality Act of 1940.
(1) Italian nationality was reacquired under the Italian Nationality Law of June 13, 1912, by naturalized United States citizen, in 1914, following two years' residence in Italy, acceptance of Italian nationality being manifested in 1928 by applying for and receiving Italian identity card.
(2) Reacquisition of Italian nationality by naturalized United States citizen in 1914, following two years' residence in Italy, acceptance of Italian nationality being manifested in 1928 by applying for and receiving Italian identity card, operated to confer Italian nationality upon his minor United States citizen child in 1914, thereby making her a dual national of Italy and the United States.
(3) Where adult dual national of the United States and Italy first
applied for a United States passport in April 1948, after having resided
in Italy continuously since 1910, and made no effort to come to the
United States during the period May 1945 to March 1948 when she was free
to do so, she lost her United States citizenship under section 401(a) of
the Nationality Act of 1940.
Discussion: Appeal from the order of the district director denying
the application of M for a nonquota visa for her husband, a native and
resident of Italy. The appeal must be dismissed.
The petitioner's father was naturalized in the United States in
October, 1882. She was born in the United States on October 19, 1898.
About August, 1909, petitioner and her mother went to Italy to reside
and her father followed the next year. Her parents remained in Italy.
She returned to the United States in May, 1950, when she was admitted as
a citizen.
The district director has found that the petitioner became
expatriated under section 401(a) of the Nationality Act of 1940 because
she acquired Italian nationality upon her father's reacquisition of
Italian nationality and because she thereafter failed to reestablish her
permanent residence in the United States prior to January 13, 1943.
Three issues are presented by this appeal: One, whether the
petitioner's father became expatriated, two, if so, whether the
petitioner was required to return to the United States, and three,
whether, if required to return, she did so within the time provided by
law.
The State Department has issued a certificate stating that the
petitioner's father lost United States citizenship under the act of 1907
by reacquiring Italian nationality under the Italian Nationality Law of
June 13, 1912, by returning to Italy in 1910 and residing there for two
or more years, and manifesting acceptance of such naturalization by
applying for, and in 1928 receiving, an Italian card of identity
describing him to be an Italian national. The Department of State has
also furnished a copy of a letter written by the American Consulate at
Leghorn, Italy, on August 9, 1935, which adds the following information
on the question of the acceptance of Italian nationality by petitioner's
father:
It appears when the father left the United States in 1910 he
disposed of all of his property in that country; that in 1911 he
purchased in Italy an establishment consisting of a dwelling and a
small paper mill; that from the time of purchase until his death
in 1928, the father lived in the dwelling and operated the
papermill; that the father's wife resided with him from 1910
until the time of his death and is still residing in Italy; that
the father did not during the period of his last residence in
Italy ever take any step to register as an American citizen or to
apply for a passport, and that none of the father's three children
ever took any such step until the son, A , applied for a passport
at the Consulate at Leghorn on March 15, 1935.
It is thus clear that petitioner's father became an Italian citizen
in 1914.
Prior to her father's reacquisition of Italian citizenship,
petitioner was a minor and a citizen only of the United States. She did
not acquire Italian nationality at birth because the Italian Civil Code
then provided:
A. A child born in a foreign country of a father who has lost
his citizenship before the child's birth is considered a foreigner
(Article 6, Civil Code of June 25, 1865).
By reason of her father's reacquisition of Italian nationality in
1914, petitioner became an Italian national and for the first time
acquired a nationality other than that of the United States, as of 1914
she was a dual national (Matter of M , A-8106492, Int. Dec. No. 630).
Under the Nationality Act of 1940, which applies here, one like
petitioner who is a dual national of the United States not at birth, but
by reason of a naturalization which occurred after acquisition of United
States citizenship was required to elect between the two nationalities
within a period fixed by law (Dulles v. Iavarone, 221 F.( 2d) 826 (C.A.
D.C., 1954), explaining Mandoli v. Acheson, 344 U.S. 133, and holding
wrongly decided, Gaudio v. Dulles, 110 F.Supp. 706, D.C., contra;
Application of Bernasconi, 113 F.Supp. 71, N.D. Calif.). Those such as
petitioner, who had reached majority prior to the effective date of the
Nationality Act of 1940, were given two years from January 13, 1941, to
make application to return to the United States under the penalty of
forfeiting United States citizenship if they failed to so do (Dulles v.
Iavarone, supra; Perri v. Dulles, 206 F.(2d) 586 (C.A. 3, 1953)).
There is strong authority for the rule that the two-year period did
not run out on January 13, 1943, in cases where circumstances beyond the
control of the individual -- such as war -- made it physically
impossible for the individual to return by January 13, 1943; in such an
event, there must have run a period totaling at least two years within
which it was possible for the individual to have returned to the United
States before expatriation can occur (Perri v. Dulles, (supra); Peduzzi
v. Brownell, 113 F.Supp. 419, D.C.; contra, Mastrocola v. Acheson, 105
F.Supp. 580, S.D. N.Y.; Gaudio v. Dulles, (supra), criticized, Dulles v.
Iavarone (supra); and Peduzzi v. Brownell, (supra), which also
criticizes Mastrocola, (supra)).
Assuming, arguendo, that the liberal construction of the courts
should apply, the following situation would have existed. Petitioner, a
dual national by reason of an act which occurred after her acquisition
of American citizenship, was required to make an election between the
two nationalities. By statute she was required to return to the United
States by January 13, 1943, if she desired to retain United States
citizenship. From January 1941 to June 30, 1941, the American
consulates in Italy were open and she could have made arrangements to
return. For the remaining 18 months of the two-year period, the
American consulates in Italy were closed because of the war and it was
with rare exceptions not possible to depart from Italy (Peduzzi v.
Brownell, (supra)). The American consulates reopened in Northern Italy
in May 1945, and earlier in Southern Italy (Peduzzi v. Brownell,
(supra)). The petitioner could, therefore, have applied for a passport
to return to the United States in May 1945. Six months of the period
within which she could have returned had already passed. She therefore
had 18 months after May 1945 within which she could make application to
return to the United States to preserve her United States citizenship.
This would bring us to December 1946. She did not apply for a passport
until April 1948. This was too late (Peduzzi v. Brownell, (supra);
Application of Bernasconi (supra); Mastrocola v. Acheson, (supra)).
As to the steps taken to return to the United States, petitioner has
furnished the following information. In 1940 she went to the American
consulate and was told she need not do anything to protect her United
States citizenship. She stated she had not informed the consulate that
her father had been naturalized in the United States because at the time
she did not know this was so. She stated she had tried to get a birth
certificate since 1947 and that in April 1948 she first applied for a
passport and was told to return when she had received her birth
certificate.
She obtained her birth certificate the following month and registered
for a passport. The State Department has furnished us with the
information that she made application for registration as a United
States citizen on May 19, 1948, at the consulate at Florence, Italy.
The petitioner stated her application was approved in September 1949 and
the record reveals that she obtained her passport on February 20, 1950,
at Florence, Italy.
Accepting the most liberal interpretation possible, we must hold that
her failure to make application to return to the United States within
the two-year period during which she could have freely done so subjected
her to the loss of United States citizenship under the provisions of
section 401(a), (supra).
The petitioner seeks to excuse her failure to return to the United
States on the ground that she was compelled to remain in Italy by the
ties of duty. She states she was compelled first to care for her sick
father and after his death in 1929 for her invalid sister who had
suffered a paralytic stroke in 1913 and who died in 1943. There is
attached to the file, a certificate from an Italian physician stating
that the petitioner's father was bedridden and that he died in 1929;
that the petitioner was in attendance upon him; the petitioner's sister
had been stricken in 1913 and until her death in 1943 was permanently
attended by her sister, the petitioner.
Assuming, arguendo, that the petitioner's stay in Italy to care for
the immediate members of her family, made her stay involuntary and such
a stay would prevent her expatriation under section 401(a), (supra), we
do not believe that the petitioner has made out a case. From May 1945,
respondent was free to come to the United States. Within the two-year
period following May 1945, she made no effort to come to the United
States. Her first application for such purpose was filed with the
American consulate about three years after she was free to come. It was
not filed in time.
The petitioner has not established her right to the issuance of a
nonquota visa. The appeal must be dismissed.
Order: It is ordered that the appeal be and the same is hereby
dismissed.
Passport -- Validity -- Sections 101(a)(30) and 211(e) of Immigration and Nationality Act -- Procurement of visa by fraud, concealment of police record -- Section 212(a)(19) of Immigration and Nationality Act.
(1) A passport issued by the Mexican Consulate General at Los Angeles, California, to an alien who had been in the United States for less than three years, which correctly sets forth his origin, identity, and nationality, will be regarded as valid under section 101(a)(30) and 211(e) of the Immigration and Nationality Act notwithstanding an instruction from the Government of Mexico to its consuls that applicants who have been in the United States for less than three years should obtain passports from the Government of Mexico in Mexico City.
(2) Exclusion ground "procured visa by fraud or willful misrepresentation of material facts' under section 212(a)(19) of the Immigration and Nationality Act is established by testimony of alien that he had obtained an immigrant visa on the basis of (A) a fraudulently obtained police certificate from Mexico City falsely stating that he had not been arrested, (B) an application for visa which concealed the facts relating to four arrests and two convictions, and (C) the payment of 5,000 pesos to have his criminal record suppressed, thereby making it impossible to determine the nature or elements of the crimes committed or to identify the statutes violated.
EXCLUDED:
Section 212(a)(15) -- Act of 1952 -- Likely to become public charges (female and minor aliens).
Section 212(a)(19) -- Act of 1952 -- Procured visa by fraud or willfully misrepresenting material facts (adult male alien).
Section 212(a)(20) -- Act of 1952 -- No valid passports (all aliens).
Discussion: These appeals are from a decision of a special inquiry
officer on January 5, 1955, excluding the subjects on the grounds
designated above. The adult male alien has submitted a
memorandum-letter giving alleged explanations for misrepresentations and
concealments of data in obtaining the immigrant visa he has presented.
Otherwise, the appeals are submitted on the record.
The special inquiry officer has succinctly set forth the evidence.
Such evidence consists of the testimony of the appellants, one witness,
and documentary data. Briefly, the appellants are husband, wife, and
minor son, ages 32, 30 and 13 years, respectively, natives and citizens
of Mexico. On October 1, 1954, they applied to enter at San Ysidro,
California, to reside permanently. They presented Mexican passports
issued by the Consulate General of Mexico at Los Angeles, California, on
July 9, 1954, valid to July 8, 1956; also nonquota immigrant visas
issued by the American Consulate at Tijuana, Mexico, on September 30,
1954, to expire January 29, 1955.
One ground of exclusion is assigned under section 212(a)(20) of the
Immigration and Nationality Act and relates to each and all of the
appellants, namely, that the passports presented are invalid because
Mexican nationals must have resided in the United States for a period of
at least three years in order to obtain a Mexican passport in the United
States; and the facts establish that these appellants have had less
than three years' residence in this country. It is indicated that
Mexican nationals not having a period of three years' residence in the
United States (according to circular No. 4-8-12 of March 14, 1953, to
Mexican consuls) should obtain Mexican passports from Mexico City,
Mexico. The term "passport' as used in the Immigration and Nationality
Act is defined in section 101(a)(30), as follows:
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.
This record shows that these appellants departed from the United
States to Mexico in August 1954 to apply for immigrant visas and at that
time were in possession of Mexican passports, the documents they have
presented. We do not have the passport applications submitted to the
Consul General of Mexico in Los Angeles, California. The appellants
must have established to the satisfaction of that official that they
were persons of Mexican origin and nationality and were the individuals
they claimed to be, and that they were eligible and qualified to receive
the documents. No evidence has been offered to refute the pertinent
data on the passports, namely, the origin, nationality and identity of
the appellants. These are factors pertinent to us. The passports are
unexpired. It is immaterial for our purposes whether the documents were
issued in Mexico City, or by proper authority in some other locality.
The controlling factors are that the Mexican passports which the
appellants have presented are satisfactory travel documents in that they
show the correct origin, nationality and identity of the bearers and
were issued by competent authority. They, therefore, satisfy the
requirements of section 211(e) of the Immigration and Nationality Act
/1/ and fulfill the description of the term "passport' as set forth in
section 101(a)(30) of such act. Consequently, we conclude that the
ground of exclusion assigned under section 212(a)(20) of the Immigration
and Nationality Act, based on a finding that the appellants are not in
possession of valid passports, is not sustained.
The female and the minor male appellants have been excluded as
persons likely to become public charges within the provisions of section
212(a)(15) of the Immigration and Nationality Act. This finding is
based on the fact that the husband/father of the appellants has been
found inadmissible; and the spouse and minor child would be without
financial support. The female appellant is age 30 years and is
apparently in good physical condition. She has had gainful employment.
The minor appellant is age 13 years and is apparently in good physical
and mental condition. As immigrants seeking to enter this country to
reside permanently, the female appellant would be able to obtain
employment and thus earn a livelihood for herself and her son. In view
of all the evidence in the record it will be concluded that the female
and the minor appellants are not persons likely to become public charges
and, consequently, are not inadmissible under the provisions of section
212(a)(15) of the Immigration and Nationality Act. Their appeals will
be sustained.
The other ground of exclusion is assigned under section 212(a)(19) of
the Immigration and Nationality Act and relates solely to the adult male
alien. This particular provision of law is composed of two parts and
provides that the following classes of aliens shall be ineligible to
receive visas and shall be excluded from admission into the United
States:
(a) Any alien who seeks to procure, or has sought to procure,
or has procured a visa or other documentation by fraud, or by
willfully misrepresenting a material fact;
(b) Any alien who seeks to enter the United States by fraud, or
by willfully misrepresenting a material fact (Matter of M ,
A-2237374, Int. Dec. No. 593, A.G., September 13, 1954).
The adult male appellant, if excludable on the factual situation
revealed by the evidence, would come within the first part of section
212(a)(19) of the Immigration and Nationality Act (quoted above) as one
who has procured a visa by fraud or willfully misrepresenting a material
fact. Briefly, the facts show that when he executed an application for
an immigrant visa on September 30, 1954, at Tijuana, Mexico, he
concealed the fact that he had been arrested and convicted for crime in
Mexico City, Mexico. Moreover, he presented a police certificate from
Mexico City in which no arrests were noted. Such certificate had been
fraudulently obtained by him for the specific purpose of obtaining a
visa. He admits he paid a monetary consideration (5000 pesos) through
his mother in Mexico City, and an attorney, to have his true criminal
record suppressed. The criminal conviction record was discovered only
after his fingerprints were forwarded to the Embassy in Mexico City for
check, which was after his immigrant visa was issued. He admits that
when he was arrested in 1950 in Mexico City he gave the name E V instead
of his true name.
There is some evidence that he falsely alleged that he was purchasing
a home in the United States when he sought to obtain his visa. We do
not feel that the matter is material. He has denied that the
allegations were false. The discussion will be confined to the
concealment or suppression of criminal record.
The adult male alien, according to fingerprint check, was arrested in
Mexico City, Mexico, on four occasions. He has been convicted on at
least two occasions. One conviction occurred on August 21, 1950. This
conviction involved the offenses listed under the name E V and consisted
of inflicting injuries (lesiones) on an authorized agent (police
officer). The subject was sentenced to a term of eight months
imprisonment, sentence suspended upon payment for bond in the sum of 100
pesos. One conviction was for robbery when he was age 15 years. We do
not have the court records of indictments, convictions, and judgments.
We cannot, therefore, determine the nature or elements of the crimes
committed; and we cannot positively identify the statutes violated.
/2/ Since the subject admits that the records have been suppressed or
"fixed' we do not know that such records are available.
The adult male alien admits that he "knifed' an individual after an
argument and fight in Mexico City, and "hit him in the forehead.' He
asserts that he did not serve any time in prison because he was injured
and required hospitalization. Certain letters or correspondence between
the subject's counsel and mother, also between his counsel in Mexico
City and counsel in the United States, have been translated in the
record, which corroborate the statements and admissions the subject has
made relative to his acts to suppress his criminal record. He has
stated that he had the record "fixed.'
The issue to be resolved is whether the acts of fraud or
misrepresentations committed by the subject, which he admits were
intentional and to secure an immigrant visa, support a ground of
inadmissibility.
The term "fraud' as used in the Immigration and Nationality Act is
not defined in section 101 of such act. The term has many definitions.
/3/ In common usage it means deception, trickery, artifice, or acts to
deceive, cheat or mislead. An applicant for an immigrant visa has the
burden of proof to establish eligibility to receive the document.
Certified copies of police and prison records are supporting documents
required by applicable regulations (22 C.F.R. 42.35). Evidentiary data
contained in police and prison certificates is, therefore, material in
determining eligibility of an applicant to receive an immigrant visa,
and in ascertaining whether there are existing any grounds of
inadmissibility under the immigration laws (Matter of P , 3, I. & N.
Dec. 20).
Essentially the acts and manipulations of the adult male alien, which
resulted in suppressing a record of his convictions for crime in Mexico
City, Mexico, and also resulted in the issuance of a police certificate
which showed no arrests or convictions, were certainly acts
intentionally committed for the purpose of deceiving and misleading the
visa issuing official. Although the assumed name under which he was
convicted on one occasion has been revealed through investigation and
fingerprint study, the fact that the criminal and prison records were
"fixed' has delayed or made it impracticable to obtain an accurate court
record of his convictions. Consequently, we cannot ascertain from the
evidentiary data in the record whether there has been a conviction for a
turpitudinous offense; or if so, whether the crime was a "petty
offense.' /4/ It is emphasized that the subject took positive action to
obtain a police clearance by expending money and having the court
criminal records suppressed. His acts demonstrate dishonesty. Such
acts cut off inquiry and, in some instances, were misleading as to
identity because of use of an assumed name. We find, therefore, that
the adult male alien has procured his immigrant visa by acts of fraud
and willful misrepresentation, intentionally and purposely designed to
cut off inquiry concerning his identity and eligibility to receive an
immigrant visa. The fraudulent acts and willful misrepresentations were
material. The subject is inadmissible solely under section 212(a)(19)
of the Immigration and Nationality Act. His appeal will be dismissed.
Order: It is ordered that the appeals relating to the female alien
and the minor male alien be sustained.
It is further ordered that the appeal of the adult male alien be
dismissed.
(1) Section 211(e) of the Immigration and Nationality Act reads:
Every alien making application for admission as an immigrant
shall present 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.
(2) Chapter 1, Title 6, Article 180, Code of Federal District of
Mexico, relates to inflicting wounds, lesiones, and other injuries and
resisting arrests. Article 289 of such title provides that should the
injury require 15 days or less to heal the penalty shall be three days
to four months imprisonment; and if more than 15 days are required the
penalty shall be four months to two years imprisonment. Codes and
principal laws of the several States of Mexico are practically verbatim
copies of those enacted by the General Government for the Federal
District and Territories, which are under exclusive Federal
jurisdiction. (Compendium of the Laws of Mexico Prefatory -- Page XIII)
Lesiones, a crime, as defined in the Penal Code of the State of Sonoro,
Mexico, may or may not involve moral turpitude depending on the elements
of the crime in the record of conviction (Matter of L , 56156/ 336, 2,
I. & N. Dec. 54).
(3) The term "fraud' has many definitions. It is defined as an act,
or course of deception deliberately practiced with a view to gaining a
wrong or unfair advantage; deceit; trick; an artifice by which the
right or interest of another is injured -- Century Dictionary --
Misrepresentation of facts is fraud. Anything calculated to deceive,
whether it is a single act or a combination of circumstances, or acts or
words which amount to a suppression of the truth or mere silence. Vol.
23 Am.Juris. 753. Acts perpetrated to deceive or mislead others are
acts of fraud. Misrepresenting or concealing material facts, by words
or actions constitutes fraud. Tyler v. Savage, 143 U.S. 79, 36 L.Ed.
82.
(4) A criminal record concealed or suppressed by an alien seeking an
immigration document is immaterial where the convictions did not include
crimes involving moral turpitude (United States ex rel. Iorio v. Day, 34
F.(2d) 920). On the other hand, if the record concealed or
misrepresented contained convictions for crimes involving moral
turpitude, the matter was material because it was pertinent in
determining the admissibility of the applicant (United States ex rel.
Teper v. Miller, 87 F.Supp. 285). Conviction for a crime that is a
misdemeanor, classifiable as a "petty offense' does not require denial
of an application for an immigrant visa (Matter of C , E-092142, Int.
Dec. No. 635) by reason of section 4 of Public Law 770, enacted
September 3, 1954.
Immigrant visa -- Employment offer no longer open -- Validity.
An immigrant visa is not rendered invalid because the written offer of employment submitted by the alien to the consul was dated seven months before the issuance of the visa and the prospective employer now states that no employment is available, there being no evidence of fraud or misrepresentation on the part of the alien.
EXCLUDED:
Act of 1952 -- Section 212(a)(20) -- No valid immigrant visa.
Discussion: The case comes forward on appeal from the order of the
special inquiry officer dated April 8, 1955, finding the applicant
inadmissible on the ground stated above.
The facts are fully set forth in the decision of the special inquiry
officer. The record relates to a native and citizen of Mexico, 20 years
old, male, who seeks admission for permanent residence. He is in
possession of a passport issued by the Mexican Government on February
23, 1955, and valid to February 22, 1957. He has also presented an
immigrant visa issued March 30, 1955, by the American Consul at
Monterrey, N.L., Mexico, and valid to July 29, 1955. The immigrant visa
bears the symbol "0-1' showing that it was issued to the applicant under
section 101(a)(27)(C) of the Immigration and Nationality Act as a native
of a Western Hemisphere country.
The finding of inadmissibility is predicated upon a finding that the
letter of employment dated September 2, 1954, submitted by the applicant
did not constitute a valid offer of employment on March 30, 1955, when
the immigrant visa was issued and that his prospective employer in fact
has indicated no employment is available if he entered the United
States. The special inquiry officer reasons that the consul may have
overlooked the fact that the letter of employment was approximately
eight months old and that the applicant should have been required to
present new letters of employment; and in view of the failure of an
essential part of the visa application which should have been valid on
the date the visa was issued, the immigrant visa issued by the consul
was, in fact, invalid. We cannot agree with this reasoning.
The record shows that the applicant has submitted a letter of support
from a cousin residing in Norwalk, California, dated June 7, 1954, and
submitted two letters, one dated June 25, 1954, and one September 2,
1954, offering employment in Del Rio, Texas. Although notified on
September 15, 1954, by the American consul to appear and file his
application for an immigrant visa, he was unable to do so because he had
not received his Mexican passport and received another notice in January
or February 1955 from the American consul. He then proceeded to Mexico
City and the Mexican passport was issued to him on February 23, 1955.
He testified that he did not appear at the American Consulate in
Monterrey until March 28, 1955, because he was short of money. He
presented all the documents in his possession on March 28th and returned
as requested on March 30th to file his application. He testified that
he informed the clerk who filled out his application that he was coming
to Del Rio, Texas, but that he did not know whether he had employment
with the prospective employer in Del Rio since he had not heard from him
in some time, but that if he did not have work there he would then go to
California and join his cousin.
The evidence clearly establishes that the consul was in possession of
all the facts when he issued the visa and there is no basis for an
assumption that he overlooked the fact that the letter of employment was
dated September 2, 1954, and was approximately eight months old. The
assumption is warranted on the other hand that he was fully aware of the
fact that the letter of employment was approximately eight months old
and that he considered it acceptable and satisfactory evidence that the
applicant was employable and would not be a public charge. There is no
indication of fraud or misrepresentation on the part of the applicant
and his testimony indicates that he revealed all the circumstances
regarding his employment to the clerk who handled his visa application.
Without a showing of fraud or misrepresentation on the part of the
applicant, or mistake or error on the part of the consul, or some other
intervening fact affecting the validity of the visa, it is believed that
the finding by the consul that the applicant was qualified for an
immigrant visa should not be disturbed. Uniformity of interpretation by
different administrative agencies upon the same set of facts is highly
desirable. The evidence establishes that the applicant fully complied
with all the requirements laid down by the consul, that he fully
apprised the consul of his circumstances and that he practiced no fraud
or deception upon the consul. Under the circumstances, it is concluded
that the immigrant visa presented by the applicant is a valid one and
that he should be found admissible to the United States.
Order: It is ordered that the appeal be sustained and that the
applicant be admitted to the United States for permanent residence.
Recommendation against deportation prior to December 24, 1952 -- Effect on deportability under section 241(a)(11) of Immigration and Nationality Act.
The recommendation of a trial court in 1940 that an alien not be deported by reason of his conviction of violating a narcotic statute is a bar to deportation under section 241(a)(11) of the 1952 act since the savings clause in section 405(a) is broad enough to preserve the efficacy of the court's recommendation against deportation (overruling 5, I. & N. Dec. 343).
CHARGE:
Warrant: 1952 Act -- Violation of narcotic laws.
Discussion: This case is before us on appeal from an order of the
special inquiry officer dated February 17, 1955, directing the
respondent's deportation on the charge stated above. Exceptions have
been taken to the finding of deportability.
The record relates to a native and citizen of China, male, married,
52 years of age, who last entered the United States at the port of
Honolulu, T.H., on March 16, 1922, ex SS. CHINA. He was convicted in
the United States District Court, Honolulu, T.H., on February 14, 1940,
for violating the Narcotic Drugs Importing and Exporting Act and the
Harrison Narcotic Act. The court recommended that the respondent be not
deported.
The special inquiry officer in his opinion refers to a decision /1/
of the Eighth Circuit Court of Appeals in which the court held that
section 241(a)(11) of the Immigration and Nationality Act did not change
the status of an alien who was not deportable under the 1917 act,
because of the recommendation of the sentencing judge, to that of a
deportable alien by reason of the fact that section 241(b) does not
expressly authorize recommendation with respect to an alien now subject
to deportation because of the retroactive provisions of section 241(a)(
11) (supra). Relying upon a decision by this Board in Matter of I ,
E-25308, 5, I. & N. Dec. 343, July 21, 1953, the special inquiry officer
concluded that the decision of the Eighth Circuit Court of Appeals was
not controlling.
Since our decision in Matter of I (supra), the issue of whether a
non-deportable status created by a judicial recommendation in a narcotic
case prior to the effective date of the Immigration and Nationality Act
of 1952 continues to relieve the alien from deportation under that act,
has been before the court on two separate occasions. The United States
District Court for the Northern District of California, Southern
Division, in the case of Ex parte Robles-Rubio, /2/ held that the
savings clause of the 1952 act (section 405(a)) was of sufficient
breadth to encompass a previous recommendation against deportation and
continues to relieve the narcotic offender.
The same issue was before the Court of Appeals for the Eighth Circuit
in the case of United States ex rel. DeLuca v. O'Rourke. /1/ The
Circuit Court in the DeLuca case reasoned that notwithstanding the
uncertainty created by the statutory provisions of the 1952 act /3/
concerned with judicial recommendations in behalf of aliens deportable
for crimes involving moral turpitude as distinguished from those
deportable as narcotic violators, the savings clause of the 1952 act is
broad enough to preserve the efficacy of the recommendation of the
sentencing judge and to prevent the deportation of the alien because of
the conviction.
Since the position we took in Matter of I , (supra), has been
overruled by judicial authority, we find that the recommendation against
deportation with which we are here concerned continues to relieve the
respondent from deportation as a narcotic violator. Cf. Matter of C M
, A-1776931, 23 L.W. 2431, Int. Dec. No. 683 (B.I.A., February 3, 1955).
The appeal will be sustained.
Order: It is ordered that the appeal be and the same is hereby
sustained; the proceedings under the warrant of arrest issued July 28,
1954, are hereby terminated.
(1) United States ex rel. DeLuca v. O'Rourke, 213 F.(2d) 759 (January
17, 1954), rehearing denied July 14, 1954.
(2) 119 F.Supp. 610 (January 21, 1954).
(3) Section 241(a)(4), section 241(a)(11) and section 241(b) of the
Immigration and Nationality Act of 1952.
Paternity -- Blood tests as evidence -- Racial discrimination against Chinese persons as affecting due process -- Service records of third parties, availability to prove discrimination.
(1) Citizenship claimants of the Chinese race applying for admission to the United States were not denied due process of law or subjected to unconstitutional racial discrimination by requirement that they submit to blood tests since the evidence shows that conditions in China posed great obstacles to investigation by ordinary means, that resort to blood tests was an entirely reasonable requirement, and that any discrimination involved was not based upon race or color.
(2) Where attorney for citizenship claimants requested permission to examine immigration records of third parties in effort to prove racial discrimination against Chinese persons in the matter of requiring blood tests, such request was properly denied because records of other persons contain personal information, are confidential in nature, and their release would be unfair to the persons involved.
EXCLUDED:
Act of 1924 -- No immigration visas.
E. O. 8766 -- No passport.
Discussion: This case has been before this Board twice previously.
On May 11, 1953, and on June 17, 1954, we ordered that the appeals be
dismissed. The case comes before us now on the limited issue described
by Judge Dimock on August 31, 1954, "whether or not the requirement of
blood tests in the case of Chinese applicants amounts to
unconstitutional discrimination.' In that decision, 123 F.Supp. 674 (D.
C., S.D. N.Y., 1954), after finding (1) that blood tests, properly
taken, can absolutely exclude the possibility of paternity in certain
cases, and (2) that an applicant's refusal to submit to a blood test
raises the logical inference that he knows that paternity does not exist
and fears that its nonexistence may be disclosed by the tests, and (3)
rejecting the claim that the immigration authorities cannot require
submission to a blood test as a condition to finding American
citizenship, the court held, "relators were denied due process of law by
the special inquiry officer's ruling on the hearing that the immigration
department's policy had no bearing on the case and by the Board of
Immigration Appeals ruling that the issue of racial discrimination was
not proper (intended to be "properly' in our decision) in the case.' The
court ordered that the writ of habeas corpus be sustained unless within
20 days the hearing before the board of special inquiry be reopened for
the purposes of (a) the introduction of evidence with respect to the
requirement of blood grouping tests in the cases of persons of the
Chinese race and the omission to require blood grouping tests under
similar circumstances in the cases of persons of other races, and (b)
the determination, upon such evidence, of the issue of discrimination.
Since the decision of Judge Dimock on August 31, 1954, there have
been two decisions by the Circuit Court of Appeals in New York in cases
involving blood testing of Chinese applicants for admission to the
United States, which, we believe, dispose of the issue of racial
discrimination in these tests (Lue Chow Kon, et al. v. Brownell, 220
F.(2d) 187 (C.A. 2, 1955) and United States ex rel. Dong Wing Ott and
Dong Wing Han v. Shaughnessy, 220 F.(2d) 537 (C.A. 2, 1955)). In the
former case the trial judge dismissed a declaratory judgment action
brought on behalf of three seeking judgments of United States
nationality and citizenship, claiming to be sons of a United States
citizen. The trial court held that the appellants' testimony was not
credible and that they had failed to sustain the burden of proof (122
F.Supp. 370 (D.C. N.Y., 1954)). The Circuit Court of Appeals held that
the dismissal of the action was correct.
In addition to the appellants' failure to sustain the burden of
proof, there was affirmative evidence, testimony of an expert, that on
the basis of blood grouping tests one of the three claimed sons could
not be the child of the alleged father. The Circuit Court of Appeals
said:
It does not appear that Judge Kaufman held the tests in
themselves to be conclusive, although he might properly have so
held under New York law. Tyler v. Costonia, 97 N.Y.S.2d 804;
Fowler v. Rizzuto, 121 N.Y.S..2d 666 and 1 Wigmore, Evidence,
Section 165(a). Appellants also raised the question of
constitutionality of application of the tests only to Chinese * *
*. Even if that were established, it would not in itself show
that the discrimination was based on race or color. The
conditions in China during the period in question posed such great
obstacles to investigation by ordinary means into family history
and evidence of parentage that resort to the tests to aid in
determination of parentage or non-parentage of persons from the
area is an entirely reasonable requirement.
The court also held that blood test evidence is admissible under the
New York Civil Practice Act, section 306(a), if such tests prove
non-paternity or, alternatively, citing Beach v. Beach, 114 F.2d 479
(C.A. D.C., 1940), that the evidence is admissible under Rule 35 of the
Federal Rules of Civil Procedure.
In the second decision of the same court, United States ex rel. Dong
Wing Ott and Dong Wing Han v. Shaughnessy, (supra), the court detailed
the long history of litigation before the boards of special inquiry,
Board of Immigration Appeals and the U.S. District Court of New York.
The writs of habeas corpus had been dismissed by the U.S. District Court
of the District of New York. The court disposed of several grounds of
appeal, including the claim that the tests are racially discriminatory
in much the same words as used in Lue Chow Kon v. Brownell, (supra),
stating that the requiring of blood tests of applicants born in China
during the period in question is justified by the "unusual
circumstances.' These circumstances are described by the courts as "lack
of reliable written governmental records of birth and parentage,
difficulty of access to the areas from which the claimed family groups
come, and long absences from the family group of the citizen father who
is an identifying witness.' The court declared that these circumstances
justify the requirement of additional evidence, and the distinction is,
therefore, "one not based on race or color.'
On the strength of the two Circuit Court decisions cited above we
hold that the blood tests when used as they were used in the instant
case, with the necessary safeguards and for the purposes and with the
justification with which they were used, are not racially
discriminatory. However, because the reopened hearings were held as
directed by Judge Dimock, and because a limited amount of information
was made available in that record we will consider the hearings.
The reopened hearing was held, and an attorney for the Immigration
Service testified at length upon the history, development and use of
blood-testing techniques in the Immigration Service. The special
inquiry officer also made a number of statements relying on his
experience and recollection and read into the record several short
factual synopses of cases of record which had been requested for perusal
by counsel.
Counsel for appellants sought through statistical theorizing to prove
racial discrimination. He requested large amounts of statistical data
with respect to the ratio between the numbers of Chinese cases handled
by the Immigration Service since 1952 and the number of non-Chinese
cases handled, to be compared with the ratio between the number of cases
in which blood tests of applicants and their alleged parents had been
made in Chinese cases, as opposed to the number of non-Chinese cases in
which blood tests have been performed. The special inquiry officer
stated that there is no such statistical data in existence and that to
prepare such data would necessitate a review of practically all
immigration cases handled by this Government since 1952, because cases
are not kept by name, nationality, or subject matter, but are filed by
the Immigration and Naturalization Service only by number.
Counsel also requested that he be furnished a number of specifically
named and identified immigration records. It was his intention,
apparently, to demonstrate with facts obtained from these records that,
first, blood tests have been used almost exclusively in cases involving
applicants of Chinese descent and, second, that blood tests have been
required in a number of cases, even though the persons of Chinese
descent were in possession of birth certificates and other documentary
evidence, and came from an area in China where it is still possible for
the United States consul to conduct an investigation for the purpose of
ascertaining the truth of the applicants' claims. This area referred to
the city of Hong Kong.
Counsel's request for extensive immigration records was properly
denied. It has been the attitude of this Government that all
immigration records must necessarily remain confidential, because they
contain large quantities of personal information. Making such records
available to even a few outside persons and even for limited purposes,
would obviously be unfair to the persons whose records were released.
It was proper for the special inquiry officer to refuse to permit
counsel to search files which have no relation to the present matter.
Further, the amount of data available on this subject to the
Government and to counsel, even if the Service attempted to cooperate in
making such studies, is inadequate at this time to permit drawing any
persuasive conclusions. It seems to us that conclusions would have to
rest, not on the numbers of all kinds of cases, but on the number of
derivative citizenship cases involving disputed paternity arising during
the control period concerning Chinese persons, as distinguished from
those involving non-Chinese persons. If most of such cases concern
Chinese persons, naturally blood tests would usually concern Chinese
persons. Objective controls of such a study would be almost impossible.
/1/ A limited number of cases, haphazardly selected, and analyzed by
either party or by us, does not constitute a basis for drawing any
persuasive conclusion.
The use of blood tests was commenced in immigration proceedings
concerning Chinese applicants, not as a matter of racial discrimination,
but as the result of a tremendous need. In 1949 and 1950 twelve United
States consulates in China were closed, leaving open only the consulate
at Tai Pei, Formosa, /2/ and that at Hong Kong which is not considered
by the Department of State to be part of China. All persons seeking
documentation for the United States were required to be processed at
those two centers. Applicants from all over China descended upon the
Hong Kong consulate claiming to be sons of United States citizens, most
of them inadequately documented, and most of them from the interior of
that great country. The problem of checking the thousands of claims for
authenticity seemed almost unsolvable. Government witnesses testified
that the use of blood tests in this emergency by the State Department
came to the attention of the immigration authorities in this country
when the United States consul at Hong Kong asked the Immigration Service
for assistance in securing information regarding blood grouping of
persons living in this country and seeking to bring alleged offspring to
the United States. The Immigration Service then adopted the method for
use in some of its proceedings.
The use of a new scientific device must begin somewhere. The fact
that blood tests have been used primarily in cases involving applicants
of Chinese descent does not mean that the use of such tests in the
future will be limited to such persons. Occasionally cases involving
persons of other descent come to our attention where there is a question
of parentage, and the proof of the relationship is inadequate. Since
blood testing has become more widely known to Immigration and State
Department personnel we have no doubt that the tests will prove valuable
in non-Chinese cases as well. Before blood tests might be used
universally in immigration work to assist in the detection of imposition
it was necessary to secure their acceptance by the courts. This Board
did not accept blood test results as conclusive until our decision in
Matter of L F F , 0300/423162, 5, I. & N. Dec. 149. That exclusion was
not appealed, so far as we know.
Counsel argues that persons coming from Hong Kong, where birth
records may be maintained, and where consular investigations are still
possible should be relieved of the necessity of taking blood tests. The
argument is not relevant to the present case, because these appellants
did not come from Hong Kong and were not properly documented.
Furthermore, a rule based purely on geographical considerations, that
persons coming from Hong Kong should not take blood tests but persons
coming from other parts of China should be required to take such tests,
would not seem fair and reasonable.
In Mar Gong v. McGrannery, 109 F.Supp. 821 (December 15, 1952), the
trial judge discussed the pattern of Chinese citizenship cases as he and
other judges in the District of California had seen them over a period
of years. The Circuit Court of Appeals, 209 F.(2d) 448 (C.A. 9, 1954),
criticized this treatment of the case, stating that the court's findings
were "based in part upon the circumstances shown in these other cases,'
and concluded, "We think that the court here should not have given
weight to its experiences, unfortunate as they may have been, in other
cases, in arriving at its findings with respect to this appellant. Each
case should be allowed to stand upon its own bottom.' Similarly, on the
issue of racial discrimination, we believe the instant case should be
required to stand upon its own bottom, not on a study of other cases
which may or may not be similar.
The instant case is much the same as Lue Chow Kon et al v. Brownell
and Dong Wing Ott et al v. Shaughnessy, supra. There is here an absence
of convincing family history data, an absence of reliable birth records
maintained by a responsible governmental authority, and lack of access
for investigation to the geographical area of origin of the family.
Under these circumstances, there was no racial discrimination practiced
by requiring blood tests of these appellants. If it is alleged that
racial discrimination was practiced by the requirement of blood tests in
other cases, we will have to decide those cases on their own facts as
they come before us.
We affirm our previous conclusion that the appellants have not
sustained the burden of proving the claimed relationship to the alleged
father. They have had ample opportunity to meet the unfavorable
evidence and have not done so. They have been granted due process, and
the hearings have been conducted in accordance with the applicable law
and regulations.
Order: It is ordered that the appeal be dismissed.
(1) For a study concerning the techniques of producing reliable
statistical data for evidentiary use see Sampling to Produce Evidence on
which Courts will Rely -- by Joel Dean Associates and Col. University,
Current Business Studies, Oct., 1954 (reprints available from J. Dean
Associates, 49 Windsor Terrace, Yonkers 3, New York).
(2) We are not informed as to whether blood testing is being done on
Formosa. No cases involving blood testing have come to us from that
area.
Fine -- Section 273 of 1952 Act -- Contract under section 238(d) -- Penalty for violation of contract -- Amount of penalty not fixed by Air Commerce Act.
(1) Fine in the sum of $1,000 was incurred by a carrier under section 273(a) of the 1952 act for bringing an alien to the United States without a visa notwithstanding the existence of a contract under section 238(d) which permitted the entry of certain aliens in transit through the United States without visas, where the evidence shows that the carrier did not submit a Form I-419 and the passenger manifest contained no notation to indicate that the alien came within the agreement.
(2) Liability to $1,000 fine under section of the 1952 act was enacted into the immigration law by Congress and is not limited by the provisions of the Air Commerce Act of 1926, as amended, which impose a $500 penalty for violating regulations adopted by an executive officer and made applicable by him to air commerce.
BASIS FOR FINE:
Section 273 of the Act of 1952 (8 U.S.C. 1323) -- Alien passenger
involved: M F M .
Discussion: This matter is before us on appeal from a decision of
the District Director at Miami, Florida, dated June 2, 1953, ordering
that fine in the sum of $1,000, plus $131.40 for passage money, be
imposed on Pan American World Airways, Inc., owner or agent of the
specified aircraft, for bringing to the United States in violation of
section 273 of the Immigration and Nationality Act, the above-named
passenger not in possession of an unexpired visa.
The alien passenger applied for admission to the United States to go
in transit to Havana, Cuba, on the same flight. He presented a valid
Cuban passport, but no other documents of any kind, except a round-trip
ticket from Barcelona, Venezuela, to Havana, Cuba, and return. He was
excluded as a nonimmigrant not in possession of a valid nonimmigrant
visa, and was deported from the United States at the expense of the
transportation company.
The carrier has submitted an affidavit prepared by its traffic clerk
to the effect that he prepared Form I-419 (TRWOV), placed it in an
envelope and inserted it into the flight documentation briefcase. Also,
the carrier has presented a copy of the passenger manifest submitted in
connection with the arrival of the flight in question. It reflects that
this alien passenger was listed in that portion thereof showing
passengers destined to Havana, Cuba, in transit through Miami, Florida,
U.S.A.
Counsel has contended that no fine should be assessed in this case
for the following reasons:
(1) The Government, by contract, has waived the visa
requirements for this alien when travelling in continuous and
immediate transit through the United States;
(2) It was only required that an I-419 form be presented to the
Immigration Service; and
(3) That failure to deliver the I-419 form subjects the carrier
to liquidated damages in the amount of $50.00 under the I-426
agreement and the provisions of the immigration law requiring a
visa having been waived by the Government, no penalty may be
assessed under section 273 of the Immigration and Nationality Act.
Substantially, counsel's argument in support of the foregoing
contentions is as follows:
Section 273 of the Immigration and Nationality Act does provide
for the imposition of the penalty imposed in this case where a
transportation company brings an alien to the United States where
the alien does not have an unexpired visa, if a visa was required
under this Act or regulations issued thereunder. But section
238(d) of the same act authorizes the Attorney General to enter
into contracts with transportation lines guaranteeing the passage
through the United States in immedate and continuous transit of
aliens destined to foreign countries. 8 C.F.R. 238.2 provides that
the contracts with the transportation lines shall be made by the
Commissioner of Immigration and Naturalization on behalf of the
Government, in such forms as the Commissioner shall prescribe.
Thereby, the terms of the contract become part and parcel of the
regulations, under statutory authorization, supplanting the visa
requirements of section 273.
The agreement in effect at the time in question was entered
into on Form I-426 (Revised 12/24/52) (2d Rev) Paragraph 2 thereof
provides:
That the line shall furnish the Commissioner or an immigration
officer in charge designated by him Form I-419, fully and
correctly executed in triplicate as to each alien brought to the
United States under this agreement and to provide such other forms
as may be required by the Commissioner or an immigration officer
in charge acting for him in connection with the checking in and
out of the United States of all passengers brought for passage in
immediate and continuous transit through the United States
pursuant to this agreement.
Insofar as we have been able to determine, no other forms were
provided for. The second sentence of paragraph 7 of the agreement
in effect in this case provides:
That for each and every failure or refusal of the line, or any
agent thereof, to furnish a fully and correctly executed Form
I-419 as to any alien brought to the United States as required by
paragraph 2 of this agreement, the line shall pay to the United
States of America, as liquidated damages and not as penalty, the
sum of fifty ($50) dollars, lawful money of the United States.
We, however, find the foregoing argument of counsel to be invalid.
In this connection, there is no question but that the carrier did have
in effect at the time here involved a valid agreement pursuant to
section 238(d) of the Immigration and Nationality Act, permitting
certain aliens without visas to pass through the United States in
transit to foreign points. But the important element here is that there
is no evidence to show that this alien passenger was being brought to
the United States under and pursuant to the terms of the agreement.
Many tourist aliens are brought to the United States who do not come
within the agreement. The burden is on the carrier to show that this
particular one did come within it, but the fact remains that it did not
do so here.
The carrier did not submit a written statement signed by the
passenger, in accordance with paragraph 1(d) of the agreement (Form
I-426). Nor did it present a Form I-419 in lieu thereof, which would
evidence that he had signed such a statement. The affidavit that one
was prepared does not suffice. No explanation was offered as to what
became of it. The copy of the manifest presented by the carrier
contains no information indicating that the passenger fell within the
agreement. It does not carry either of the notations "WOV I-419' or
"WOV.' The testimony of the alien before the special inquiry officer is
of no assistance. It makes no reference at all to the matter of the
agreement.
The argument has also been advanced that under the Air Commerce Act
of 1926, with amendments, the maximum penalty which can be imposed in
this case is $500. We, however, do not agree. The $500 penalty
provided for in the Air Commerce Act is not a substitute for a specific
penalty enacted into an immigration law by Congress, which immigration
law is made applicable to air commerce by a regulation adopted by an
executive officer of the Government. Rather, the $500 penalty of the
Air Commerce Act refers only to a regulation adopted by an executive
officer, and made applicable by him to aircraft commerce, and as to
which regulation Congress has fixed the $500 penalty. The reason is
that in no instance does the executive officer legislate in regard to a
penalty; Congress has legislated in both instances.
On the basis of the foregoing, we find that remission of the fine
imposed in this case is not in order. Nor is refund of the passage
money warranted here. The alien did not accomplish the purpose of his
travel to this country. Therefore, we will dismiss this appeal.
Order: It is ordered that the appeal be and the same is hereby
dismissed.
Commutation of sentence -- Represents substitution for original sentence -- Where commuted sentence is less than one year, deportability for crime within five years under section 241(a)(4) of 1952 act cannot be established.
(1) Commutation of sentence to ten calendar months granted by the Nevada Board of Pardons and Parole Commissioners in November 1953 represents a substitution for the original sentence of not less than one year nor more than ten years, the original sentence thereby losing its legal efficacy.
(2) Deportability under section 241(a)(4) of the Immigration and Nationality Act for a crime committed within five years after entry is not established where the sentence for such crime has been commuted by executive action to a period of less than one year.
CHARGE:
Warrant: Act of 1952 -- Crime within five years -- Obtaining
property by false pretense.
Discussion: This case is before us on appeal from the decision of a
special inquiry officer on October 11, 1954, directing the respondent's
deportation.
The respondent is a 35-year-old male, native and citizen of Norway,
who was lawfully admitted for permanent residence on February 18, 1949.
He entered Mexico on several occasions in connection with his employment
for periods of less than one hour. His last entry occurred in May 1951,
at which time he was admitted as a returning resident.
The respondent pleaded guilty to the offense of obtaining property by
false pretense committed about February 9, 1953, and on April 22, 1953,
he was sentenced to imprisonment for not less than one year nor more
than ten years. Subsequently, the sentence was commuted and he was
released on February 22, 1954. Exhibit 8 indicates that it was not the
practive to prepare a formal document concerning the discharge of a
prisoner under the circumstances existing in the respondent's case and
that exhibit 7 was furnished merely as a matter of convenience in
complying with counsel's request for a copy of the discharge. Hence, we
believe it is apparent that exhibit 7 and an identical copy do not
purport to be copies of any document issued at the time of the
respondent's release. We have commented on this matter because exhibits
7 and 9 are dated February 22, 1954, which would indicate that it was on
that date that commutation of the sentence was ordered. However, that
is not the case because exhibit 6, which is a letter written by the
Secretary of the Board of Pardons and Paroles on March 12, 1954,
contains the specific statement that during the last November meeting
(November 1953) of the Board, the respondent was "granted a commutation
to time served as of February 23, 1954.' The only additional information
available as to the nature of the commutation is the statement in
exhibits 7 and 9 reading "subject was commuted to 10 calendar months, as
of February 22, 1954, and has no further obligation to the State of
Nevada.'
We have carefully considered the arguments of counsel in his brief on
appeal and the cases cited in support thereof. He contends that the
original sentence has ceased to exist; that the commuted sentence is
for less than one year; and that the respondent is, therefore, not
deportable. The special inquiry officer stated that it had previously
been held that, when a sentence to imprisonment has been imposed and
commitment follows, the sentence is not affected by a later parole or
commutation. No specific authority for this proposition was set forth.
However, we are aware that such a view has been expressed by the Service
and that the cases relied on are United States ex rel. Sirtie v.
Commissioner of Immigration, 6 F.(2d) 233 (E.D. N.Y., 1925); United
States ex rel. Kiobge v. Day, 42 F.(2d) 716 (S.D. N.Y., 1929); and
United States ex rel. Robinson v. Day, 51 F.(2d) 1022 (C.C.A. 2, 1931).
The first two cases mentioned above held that where indeterminate
sentences were imposed, the aliens must be considered to have been
sentenced to the maximum terms (3 years) even though they were paroled
before they had served one year. Hence, these cases are authority for
the proposition that the sentence is not affected by a later parole, and
that has been a long settled judicial and administrative view. In
United States ex rel. Robinson v. Day, supra, at page 1023 the court
indicated that, once a judge has committed an offender, the deportation
statute may not then be defeated by a parole or commutation. However,
that statement was clearly obiter dictum because the court held that the
alien there involved was not deportable since, at the time sentence was
imposed, execution thereof was conditionally suspended and the alien was
never imprisoned. Parenthetically, we may state that, under section
241(a)(4) of the Immigration and Nationality Act, we have held an alien
deportable even though his sentence was wholly suspended. /1/
With respect to the effect of a commutation of sentence, we do not
find that this question has been specifically adjudicated with the
exception of one unreported case which will, therefore, not be relied on
as a precedent. A preliminary observation to be made is that the
authority to grant commutations is not a judicial function. It is to be
distinguished, therefore, from those proceedings in which courts suspend
sentences or grant probation. The power to commute a sentence is a part
of the pardoning power which is vested in the President by the
Constitution of the United States and which, in the States, is vested in
the Governor or in a Board of which the Governor is a member. /2/ The
general power of pardon necessarily contains in it the lesser power of
remission or commutation. /3/ While Article II, section 2 of the
Constitution of the United States provides only that the President
"shall have power to grant reprieves and pardon * * *' and does not use
the term "commutation,' it is now well settled that, under this
pardoning power, the President may commute a death sentence to life
imprisonment. /4/
The respondent's conviction occurred in Nevada and the statutory
provisions of that State must be considered. The Nevada Act of 1933 /5/
provides as follows: "The state board of pardons and parole
commissioners shall consist of the governor, justices of the supreme
court, and attorney general.' Article V, section 14 of the Nevada
constitution contains the following specific provision:
The governor, justices of the supreme court, and attorney
general, or a major part of them, of whom the governor shall be
one, may, upon such conditions and with such limitations and
restrictions as they may think proper, remit fines and
forfeitures, commute punishments, and grant pardons, after
convictions, in all cases, except treason and impeachments,
subject to such regulations as may be provided by law relative to
the manner of applying for pardons. /6/
It is well settled that a commutation is the substitution of a less
for a greater punishment or, as sometimes stated, it is the change from
one punishment known to the law to another and different punishment also
known to the law. /7/ As early as 5 Op.Atty.Gen. 370 (1851), it was
held that where the President of the United States had commuted a death
sentence to life imprisonment, the prisoner was in precisely the same
legal condition as if he had been sentenced by the court to imprisonment
for life. Likewise, in Chapman v. Scott, 10 F.(2d) 156, 161 (D.C.
Conn., 1925), affirmed 10 F.(2d) 690 (C.C.A. 2), cert. denied 270 U.S.
657, the court said that Chapman, having already served part of his
25-year sentence, the President's commutation substituted the time
served for the term which the court had imposed originally.
Similarly, where the Governor of the State had granted a commuation
of sentence, it was held that the sentence thus substituted will be
treated precisely as if the substituted sentence had been imposed by the
court in the first instance. /8/ The decision in State ex rel. Murphy
v. Wolfer, 127 Minn. 102 (1914), 148 N.W. 896, is to the same effect and
the court, in that case, said:
It is well settled that a commutation of a sentence is a
substitution of a less for a greater punishment. After
commutation the commuted sentence is the only one in existence,
and the only one to be considered. After commutation, the
sentence has the same legal effect, and the status of the prisoner
is the same, as though the sentence had originally been for the
commuted term.
The above-mentioned statement in State ex rel. Murphy v. Wolfer,
supra, was quoted with approval by the courts in Chapman v. Scott,
supra, at page 160 and in Ex parte Warren, 265 P. 656, 657 (Okla.,
1928). Ex parte Denton, 101 P.(2d) 276, 278 (Okla., 1940), is to the
same effect.
In Duehay et al. v. Thompson, 223 Fed. 305 (C.C.A. 9, 1915), the
court had imposed two sentences of four years to run consecutively and
subsequently the President granted a commutation to make the service on
the two four-year terms run concurrently. The Parole Act provided that
a person "who has served one-third of the total of the term or terms for
which he was sentenced * * *' might be released on parole, and the
Parole Board contended that Thompson was required to serve one-third of
his original sentence of eight years before being eligible for parole.
The court held that he was eligible for parole when he had served
one-third of the commuted sentence of four years.
In United States ex rel. Brazier et al. v. Commissioner of
Immigration, 5 F.(2d) 162, 165 (C.C.A. 2, 1924), the court said:
The word (commutation) is a term of art and means, and long has
meant, the change of one punishment for another and different
punishment. A punishment by imprisonment for one year is a
different punishment from the fulfillment of a two-year sentence,
and this is true even though the change is made when the two-year
sentence is half served. So the sentences of these men were
changed by substituting for their whole term of imprisonment the
performed portion thereof, * * *.
It appears that the special inquiry officer attached some
significance to the fact that the commuting authority was not the court
which had imposed the original sentence. /9/ We do not consider that
this factor is material. As we have indicated above, the commuting of
sentences is part of the pardoning power of the executive branch and is
not a judicial function. Under the constitution and laws of Nevada, the
authority to commute sentences is specifically granted to the Board of
Pardons and Parole Commissioners of which the Governor is required to be
a member.
The situation with respect to a commutation of sentence is, of
course, readily distinguishable from that which exists where a convict
is paroled. One who has been paroled, although permitted to go outside
the prison walls, remains in legal theory in the custody and control of
the warden of the prison until the completion of the maximum term. /10/
The respondent's maximum sentence was 10 years but the record shows
clearly that he had no further obligation to the State of Nevada when he
was released at the end of 10 months. For that reason, it is also
apparent that the commuted sentence was not one of 10 months to 10
years.
Applying the judicial precedents mentioned above to the respondent's
case, we must hold that the commuted sentence of 10 calendar months,
which was directed by the Board of Pardons and Paroles in November 1953,
was substituted for the original sentence which thereupon lost all legal
efficacy. This must necessarily be true because there would have been
no legal authority for the respondent's release at the end of 10 months
since the original sentence required his imprisonment for not less than
one year. We believe that no other conclusion is tenable than that the
only sentence which can be considered is the commuted sentence of 10
calendar months. It follows, therefore, that the respondent was not
sentenced to imprisonment for one year or more and is not amenable to
deportation. Accordingly, the proceedings will be terminated.
Order: It is ordered that the proceedings be and the same are hereby
terminated.
(1) Matter of M , E-113322, Int. Dec. No. 654, decided October 25,
1954.
(2) 20 R.C.L. 524, 530.
(3) 20 R.C.L. 530.
(4) Ex parte Wells, 59 U.S. 307; Biddle v. Perovich, 274 U.S. 480
(1927).
(5) Section 11569 of Nevada Compiled Laws (Supplement 1931 to 1941).
(6) In 1950, section 14 of Article V was amended by the addition of
another sentence to authorize the enactment of legislation which would
permit courts to suspend sentences, grant probations, etc. However, no
change was made in the provision quoted above which has been in effect
since the adoption of the constitution in 1865.
(7) 20 R.C.L. 530; Vol. 8, Words and Phrases, "commutation'; Ex
parte Janes, 1 Nev. 319, 321 (1865); People ex rel. Smith v. Jankins,
325 Ill. 372 (1927), 156 N.E. 290, 292.
(8) In re Hall, 34 Neb. 206 (1892), 51 N.W. 750; Johnson v. State,
183 Ala. 79 (1913), 63 So. 163.
(9) While the special inquiry officer referred to the body granting
the commutation as the Board of Parole Commissioners and while that
designation appears in exhibits 7 and 9, it is clear from exhibits 6 and
8 that the commutation was granted by the Board of Pardons and Paroles.
(10) People ex rel. Newton v. Twombly, 228 N.Y. 33 (1920), 126 N.E.
255.
Discussion: This case is before us on the Commissioner's motion of
May 11, 1955, that we reconsider our order of April 20, 1955.
The respondent was lawfully admitted to the United States in 1949 and
his last entry occurred in May 1951. He was convicted in Nevada of a
crime involving moral turpitude, committed on or about February 9, 1953,
and on April 22, 1953, he was sentenced to imprisonment for not less
than one year nor more than ten years. In November 1953, the Board of
Pardons and Paroles granted a commutation to become effective on
February 23, 1954. The special inquiry officer held that the respondent
was deportable under section 241(a)(4) of the Immigration and
Nationality Act. We reached the conclusion that the commuted sentence
of ten calendar months was substituted for the original sentence which
thereupon lost all legal efficacy, and that the respondent was not
amenable to deportation since he must be regarded as not having been
sentenced to imprisonment for one year or more.
We have carefully considered the Service motion. A number of court
decisions were cited therein for the proposition that, where an
indeterminate sentence is imposed, the alien must be considered to have
been sentenced to the maximum term even though he is paroled before he
has served one year. In our order of April 20, 1955, we had stated that
this was the law with respect to paroles but we also cited the judicial
precedents which clearly indicated that a different conclusion was
required insofar as commutations were concerned. With respect to the
proposition mentioned, the Service motion contained the comment, "The
basis for this view was that action by the executive or administrative
officials after sentence could have no effect upon the sentence to
imprisonment.' We are not aware that this was the basis for the rule /1/
and, in any event, the statement seems inaccurate because a pardon
granted by the executive to an alien who is confined would have an
effect upon the sentence to imprisonment as well as upon the question of
his deportability.
The Service makes two contentions. First, various cases were cited
for the proposition that effect must be given to a statute as a whole
and, if possible, to every clause and part of the statute (a matter
which we believe is well-settled law /2/ ), and reliance is then placed
upon the change in phraseology in section 241(a)(4) of the Immigration
and Nationality Act as compared with the similar provision in the
predecessor statute. Pretermitting the changes which are unimportant to
the respondent's case, we observe that the language employed in the 1917
act is "sentenced to imprisonment for a term of one year or more,' and
that used in section 241(a)(4) of the Immigration and Nationality Act is
"either sentenced to confinement or confined therefor * * * for a year
or more.' If we substitute in the latter enactment, the word
"imprisonment' for "confinement' we see that the only actual change was
the inclusion of the word "either' and the addition of the phrase "or
confined therefor.'
In our previous order, we referred to our decision in Matter of M ,
E-113322, Int. Dec. No. 654 (1954), and stated that we had there held
that an alien was deportable under section 241(a)(4) of the Immigration
and Nationality Act even though he would not have been deportable under
the 1917 act because his sentence had been wholly suspended. It is this
which represents the change made under the new law. On the other hand,
the respondent, having been actually imprisoned for ten months, would be
as clearly deportable under the 1917 act as under the 1952 act if a
parole, rather than a commutation, were involved. Hence, the change in
phraseology has no bearing on the question of respondent's
deportability.
As indicated in the Service motion, the court in Miller v. Aderhold,
288 U.S. 206, 210 (1933), stated, "In a criminal case final judgment
means sentence; * * *' and a similar statement was made in Pratt v.
United States, 102 F.(2d) 275 (C.A. D.C., 1939). In the first case
mentioned, the conclusion was reached that the original order of the
district court suspending sentence was neither a final nor a valid
judgment, and the point decided by the Supreme Court was that the
jurisdiction of the trial court is not exhausted until sentence is
pronounced, either at the same or a succeeding term. In other words,
these cases are merely to the effect that the final action of the trial
court in a criminal proceeding is the imposition of sentence but we fail
to perceive that this adds anything to the conclusiveness of the
judgment since it is subject to reversal on appeal or the judgment
imposing sentence may be entirely abrogated and rendered ineffectual by
a pardon or commutation from the executive authority.
The second contention of the Service is that, while the cases we had
cited established that a commutation is the substitution of a lesser
punishment, they "do not support the conclusion that a commutation
constitutes a substitution of the sentence to confinement.' Other than
the bare statement quoted, we find nothing in the Service motion to
indicate wherein we were in error in our analysis of the judicial
precedents. In our order of April 20, 1955, we cited a number of
decisions /3/ holding that commutation by the President of the United
States or the Governors of States had exactly the same legal effect as
though the commuted sentence had been imposed by the court in the first
instance and that, after commutation, the commuted sentence is the only
one in existence. The additional reasons, which led us to our
conclusion, and citations of authority were also set forth. We deem it
unnecessary to repeat them here in view of the full discussion of the
question in our previous order. Upon reconsideration of the question
and for the reasons stated in our order of April 20, 1955, we adhere to
our conclusion that the respondent is not deportable on the present
record. Accordingly, the motion will be denied.
Order: It is ordered that the Commissioner's motion of May 11, 1955,
be and the same is hereby denied.
(1) United States ex rel. Paladino v. Commissioner of Immigration, 43
F.(2d) 821 (C.C.A. 2, 1930), cited in the Service motion, appears to
have been the first immigration case, involving this question, decided
in an appellate court. At page 822 the court indicated that, for other
than immigration purposes, indeterminate sentences had long been held to
be sentences for the maximum term for which the defendant might have
been imprisoned, and the court then applied the same principle to the
deportation case it was considering.
(2) Ginsberg & Sons v. Popkin, 285 U.S. 204, 208 (1932).
(3) A few of these are 5 Op.Atty.Gen. 370 (1851); In re Hall, 34
Neb. 206 (1892), 51 N.W. 750; Johnson v. State, 183 Ala. 79 (1913), 63
So. 163; and State ex rel. Murphy v. Wolfer, 127 Minn. 102 (1914), 148
N.W. 896.
Order: The decision and order of the Board of Immigration Appeals,
dated April 20, 1955, in this case are hereby approved.
Narcotic violation -- Section 241(a)(11) of Immigration and Nationality Act -- Conspiracy.
While the crime of conspiracy as defined by 18 U.S.C. 371 is a separate and distinct offense from the crime which is the object of the conspiracy, the language of section 241(a)(11) of the Immigration and Nationality Act is broad enough to cover a conviction for conspiracy to violate the narcotic laws.
CHARGE:
Warrant: Act of 1952 -- Convicted of violation of law governing
taxing, etc., of narcotic drugs: Conspiracy (18 U.S.C. 371) to violate
Jones-Miller Act (21 U.S.C. 174) and Harrison Narcotic Act (26 U.S.C.
2553(a)).
Discussion: The case comes forward on appeal from the order of the
special inquiry officer dated December 15, 1954, ordering the alien
deported on the charge stated in the warrant of arrest.
The record relates to a native and citizen of Italy, 48 years old,
male, who last entered the United States at the port of New York, New
York, on October 2, 1924, as a stowaway. He was previously granted
suspension of deportation and his status was adjusted under section 19(
c)(2) of the Immigration Act of 1917 on May 11, 1944, to show a lawful
entry for permanent residence on October 2, 1924.
On August 27, 1954, in the United States District Court at San
Francisco, Southern District of California, Southern Division, the
respondent was convicted of the crime of conspiracy in violation of 18
U.S.C. 371. The record of conviction shows that the respondent was
charged in the twenty-fourth count with conspiracy (18 U.S.C. 371) with
a number of other persons in that he conspired with certain named
persons to sell, dispense and distribute heroin in violation of section
2553 and 2557 of Title 26, United States Code, and to conceal and
facilitate the concealment and transportation of quantities of heroin
imported into the United States, contrary to law, as the said defendant
well knew, in violation of section 174 of Title 21, United States Code.
The acts in furtherance of the conspiracy relating to the respondent are
charged in paragraphs 33 and 34 of the overt acts in the indictment, and
occurred on or about February 10, 1951.
Deportation of the alien is sought under section 241(a)(11) of the
Immigration and Nationality Act. This section provides for the
deportation of any alien who:
(11) 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 any law or regulation relating to the illicit traffic
in narcotic drugs, or who has been convicted of a violation of any
law or regulation governing or controlling the taxing,
manufacture, production, compounding, transportation, sale,
exchange, dispensing, giving away, importation, exportation, or
the possession for the purpose of the manufacture, production,
compounding, transportation, sale, exchange, dispensing, giving
away, importation or exportation of opium, coca leaves, heroin,
marihuana, any salt derivative or preparation of opium, or coca
leaves or isonipecaine or any addiction-forming or
addiction-sustaining opiate.
Previously, deportability based upon the illegal traffic in narcotics
was contained in the Act of February 18, 1931, as amended (8 U.S.C.
156(a)), which provided:
That any alien * * * who, after the enactment of this Act,
shall be convicted for violation of or conspiracy to violate any
statute of the United States * * * taxing, prohibiting, or
regulating the manufacture, production, compounding,
transportation, sale, exchange, dispensing, giving away,
importation, or exportation of * * * heroin * * * shall be taken
into custody and deported in manner provided in sections 19 and 20
of the Act of February 5, 1917 * * *. (Emphasis supplied.)
A comparison of the 1931 and the 1952 acts concerning deportation on
the ground of illicit traffic in narcotics reveals that the former
specifically includes not only a conviction for a violation of a
narcotic trafficking statute but also a conviction for conspiracy to
violate such a statute, while the latter act is silent on this point of
conspiracy and refers only to a conviction of a violation of any law or
regulation relating to the illicit traffic in narcotic drugs. We
conclude that this omission is fatal insofar as the present conviction
is concerned, since in the instant case the alien has been convicted
only of conspiracy in violation of 18 U.S.C.A. 371. While it is true
that the substantive acts which are charged in the record of conviction
as the objects of the conspiracy relate to the illicit traffic in
narcotics, it is well settled that a conspiracy to commit a crime is a
different offense, notwithstanding that the substantive offense is
charged as one of the overt acts committed in furtherance of the
conspiracy. /1/ The crime of conspiracy to commit an offense is
distinct from the offense itself. /2/ It has been repeatedly declared
in decisions of the Supreme Court that a conspiracy to commit a crime is
a different offense from the crime that is the object of the conspiracy.
/3/ The conspiracy is the crime, however diverse its object. A
conspiracy is not the commission of the crime which it contemplates, and
neither violates nor "arises under' the statute whose violation is its
object. /4/
It is, therefore, concluded that the crime of conspiracy in violation
of section 371, Title 18, U.S.C.A., is a separate and distinct offense
from the substantive offense charged in the record of conviction and
that the crime of conspiracy does not constitute a conviction of a
violation of a law relating to the illicit traffic in narcotic drugs.
The proceedings will be terminated.
Order: It is ordered that the proceedings be and the same are hereby
terminated.
(1) Braverman v. United States, 317 U.S. 49 (1942); United States v.
Bayer, 331 U.S. 532 (1947).
(2) United States v. McElvain, 272 U.S. 633 (1926).
(3) United States v. Rabinowich, 238 U.S. 78 (1915), and cases cited
therein.
(4) United States v. Lutwak, 195 F.(2d) 748 (C.A. 7, 1952).
Discussion: The above-named alien was found deportable by the
special inquiry officer, after hearing, by reason of the alien's
conviction on August 27, 1954, for conspiracy (18 U.S.C. 371) to violate
certain laws relating to the illicit traffic in narcotic drugs.
The Board of Immigration Appeals has now entered an order reversing
the order of the special inquiry officer and terminating the deportation
proceedings. The Board reaches the conclusion that the crime of
"conspiracy' in violation of section 371, Title 18, U.S.C., is a
separate and distinct offense from the substantive offense charged in
the record of conviction and does not constitute a violation of law
relating to the illicit traffic in narcotic drugs within the meaning of
section 241(a)(11) of the Immigration and Nationality Act. The Board
supports its conclusion by pointing to the fact that the predecessor
statute, the Act of February 18, 1931, specifically referred to
"conspiracy to violate' the narcotic laws while section 241(a)(11) omits
any such reference.
The Service believes that the Board's interpretation of the statute
is erroneous. It is evident from a reading of the legislative history
of the Immigration and Nationality Act that Congress intended not to
limit but to broaden the area of deportability with respect to aliens
trafficking in illicit drugs. Congress was aiming not only at the
small-time "dope peddlers' but at the bosses who control and direct this
nefarious traffic. These men are, more often than not, indictable as
conspirators.
The omission of which the Board speaks is not significant. More than
likely Congress felt is was unnecessary to include any specific
reference to "conspiracy' to violate the narcotic laws in view of the
unrestricted sweep of the language contained in section 241(a)(11).
Nowhere in the legislative history of the Immigration and Nationality
Act is there any indication that Congress intended to relieve from the
consequences of deportation those convicted of conspiring to violate the
narcotic laws while enforcing expulsion only against those convicted of
substantive narcotic offenses. A plain reading of the language in
section 241(a)(11) negates any such conclusion. The statute is broad
enough to encompass convictions for conspiracy whenever such conspiracy
has as its object violation of the laws relating to the illicit traffic
in narcotic drugs.
Request is hereby made that this case be referred to the Attorney
General for review pursuant to 8 C.F.R. 6.1(h)(1)(iii).
The above-captioned case was referred to the Attorney General by the
Board of Immigration Appeals pursuant to 8 C.F.R., section 6.1(h)(1)(
iii).
The record relates to a native and citizen of Italy who last entered
the United States on October 2, 1924, as a stowaway. On May 11, 1944,
he was granted suspension of deportation and his status adjusted under
section 19(c)(2) of the Immigration Act of 1917.
On August 27, 1954, in the Southern District of California. N was
convicted of the crime of conspiracy in violation of 18 U.S.C., section
371, in that he conspired with others to sell, dispense and distribute
heroin in violation of 26 U.S.C., sections 2553, 2557, and to conceal,
and facilitate the concealment and transportation of, heroin in
violation of 21 U.S.C., section 174.
The special inquiry officer found the alien deportable under section
241(a)(11) of the Immigration and Nationality Act of 1952. The Board of
Immigration Appeals ordered the proceeding terminated on the ground that
section 241(a)(11), which provides for the deportation of aliens who
traffic in narcotics, does not embrace aliens convicted of "conspiracy
to violate' narcotic laws. The Board's opinion points out that the
prior law, the Act of February 18, 1931, specifically included the
phrase "conspiracy to violate.' The Board attaches controlling
importance to the absence of the phrase in the 1952 act.
Section 241(a)(11) reads as follows:
(11) 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 any law or regulation relating to the illicit traffic
in narcotic drugs, or who has been convicted of a violation of any
law or regulation governing or controlling the taxing,
manufacture, production, compounding, transportation, sale,
exchange, dispensing, giving away, importation, exportation, or
the possession for the purpose of the manufacture, production,
compounding, transportation, sale, exchange, dispensing, giving
away, importation or exportation of opium, coca leaves, heroin,
marihuana, any salt derivative or preparation of opium or coca
leaves or isonipecaine or any addiction-forming or addiction
sustaining opiate.
I agree with the Board that the crime of conspiracy, as defined by 18
U.S.C., section 371, is a separate and distinct offense from the crime
which is the object of the conspiracy (Braverman v. United States, 317
U.S. 49 (1942); United States v. Bayer, 331 U.S. 532 (1947); American
Tobacco Company v. United States, 328 U.S. 781 (1946); United States v.
McElvain, 272 U.S. 633 (1926)). I do not agree, however, with the
Board's ultimate conclusion with respect to its interpretation of the
Immigration and Nationality Act of 1952. The controlling phrase in
section 241(a)(11) is "relating to.' On its face it is broad enough to
cover a conviction for conspiracy to violate the narcotic laws. Courts
have construed the phrase to have broad coverage (Bowles v. Ohio Fuel
Gas Co., 65 F.Supp. 426 (N.D. Ohio, 1946), aff'd 158 F.(2d) 814 (6th
Cir., 1947); Commonwealth v. Mathues, 210 Pa. 372, 407, 59 A. 961, 975
(1904)).
The Subcommittee of the Senate Committee on the Judiciary, reporting
on the Bill, stated (S.R. 1515, April 20, 1950):
The sub-committee recommends that the immigration laws contain
specific provision for the deportation of aliens who have been
convicted of any law pertaining to narcotics. Such aliens should
be deportable, whether the conviction occurred prior to or after
entry into the United States. The deportable class will include
those convicted under any law in this country pertaining to
narcotics or under any such law of a foreign country.
It seems clear that it was the Subcommittee's intention to broaden
the coverage of the immigration laws with respect to aliens convicted of
laws "pertaining to narcotics.'
For the foregoing reasons the decision and order of the Board are
reversed.
Preference quota status -- Children of parent who is a national but not a citizen of the United States.
While the minor children of a parent who is a national but not a
citizen of the United States are not eligible for nonquota status under
section 101(a)(27)(A) or preference quota status under section 203(a)(
4) of the Immigration and Nationality Act, they are eligible for
preference quota status under section 203(a)(3) of that act.
Discussion: The matter comes forward on appeal from the order of the
District Director, Miami District, dated December 17, 1954, denying the
petition on the ground that the petitioner is a national and not a
citizen of the United States and is, therefore, not eligible to file a
visa petition on behalf of the beneficiaries.
The petitioner seeks nonquota status under section 101(a)(27)(A) or
preference status under section 203(a)(4) on behalf of the
beneficiaries. The beneficiaries are the children of the petitioner. A
was born September 6, 1931, G was born July 29, 1933, and S was born
January 10, 1936, all at Jamaica, British West Indies; and I was born
May 28, 1940, at Grenada, British West Indies. The two oldest children,
being over 21 years of age, are not eligible for nonquota status.
Section 101(a)(27)(A) of the Immigration and Nationality Act grants
nonquota status to the child of a citizen of the United States, and
section 203(a)(4) grants preference status for sons and daughters of
citizens of the United States. The petitioner herein has submitted a
certificate of baptism and affidavits to establish that she was born on
January 22, 1898, at St. Thomas, Virgin Islands. In her petition she
sets forth that she has been absent from the Virgin Islands since 1922
during which period she has resided in the British West Indies in which
she presently resides. Throughout her visa petition the petitioner
indicates that she is a national rather than a citizen of the United
States and that she is the bearer of American passport No. 197 issued at
the American Consulate, Port of Spain, Trinidad, British West Indies, on
July 8, 1954, as an inhabitant of the Virgin Islands. The facts
relating to the petitioner indicate that she did not acquire United
States citizenship under the provisions of the Act approved February 25,
1927, as amended by the Act of June 28, 1932, since she did not on those
dates reside in the Virgin Islands of the United States, the United
States, or Puerto Rico. /1/ Since she does not qualify as a citizen of
the United States the petitioner is not eligible to file a visa petition
for nonquota status or fourth preference status because in both
instances the relationship existing must be between that of a citizen
parent and an alien child.
Section 203(a)(3) provides a preference for children of aliens
lawfully admitted for permanent residence. The term "lawfully admitted
for permanent residence' is defined in section 101(a)(20) as the status
of having been lawfully accorded the privilege of residing in the United
States as an immigrant. The petitioner is a national in possession of a
United States passport and thus appears to have been lawfully accorded
the privilege of residing permanently in the United States. She will be
regarded as eligible to file a petition for a preference under section
203(a)(3) and the visa petition will be approved for third preference
status for the minor beneficiaries.
Order: It is ordered that the visa petition be approved for
preference status under section 203(a)(3) of the Immigration and
Nationality Act on behalf of the minor beneficiaries.
(1) Cf. Section 306(a), Immigration and Nationality Act.
Seaman status under Immigration Act of 1917 -- Passport Act of May 22, 1918, effective period -- Deportability under Immigration and Nationality Act on grounds barred by statute of limitations under 1917 act -- Fair hearing, charges lodged under Immigration and Nationality Act, warrant issued under earlier statute -- Section 241(a)(12), Immigration and Nationality Act, commercialized vice.
(1) An alien who was allegedly employed on vessel bringing him to United States in 1922 cannot be classified as a "seaman' under Immigration Act of 1917 where the evidence shows he was not signed on the ship's articles, he had no passport, his name did not appear on the crew list, and he entered the United States without inspection.
(2) An alien who applied for admission to the United States in 1922 was not admissible unless he presented a passport showing his identity and nationality pursuant to Executive Order 2932 of August 8, 1918, and the Passport Act of May 22, 1918.
(3) Deportability under section 241(a)(1) and (2) of the Immigration and Nationality Act is established by reason of alien's failure to present a passport and submit to inspection at time of arrival in 1922 even though deportation proceedings under the Immigration Act of 1917 could not have been instituted more than five years after date of entry.
(4) Where the Government failed to institute deportation proceedings within the prescribed five-year period under the Immigration Act of 1917 following an alien's failure to present a passport and submit for inspection, the right of the alien thereafter to remain in the United States is not preserved by section 405(a) of the Immigration and Nationality Act in view of the provisions of section 241(a)(1), (2), and (d) directing his deportation.
(5) Although warrant of arrest was issued before December 24, 1952, the Service is empowered thereafter to lodge additional charges based on the provisions of the Immigration and Nationality Act.
(6) The Passport Act of May 22, 1918, remained in force until December 24, 1952 (section 403(a)(15) of the Immigration and Nationality Act).
(7) Under section 241(a)(12) of the Immigration and Nationality Act, which relates to aliens who are members of a class described in section 212(a)(12), a charge of "after entry, engaged in unlawful commercialized vice' cannot be sustained unless the alien was coming to the United States to engage in unlawful commercialized vice.
CHARGES:
Warrant: (1) Act of 1924 -- No immigration visa (1928).
Lodged: (2) Section 241(a)(1), Act of 1952 -- Excludable at entry (1922), no passport or other travel document.
(3) Section 211(a)(2), Act of 1952 -- Entered (1922) without inspection.
(4) Section 241(a)(12), Act of 1952 -- After entry, engaged in unlawful commercialized vice, to wit: Lottery, operation of lottery, professional gambling, operation of professional gambling, bootlegging.
(5) Section 241(a)(1), Act of 1952 -- Excludable at entry (1931) -- No immigration visa.
(6) Section 241(a)(2), Act of 1952 -- Entered (1931) without inspection.
(7) Section 241(a)(5), Act of 1952 -- Failed to furnish annual
address report required by section 265.
Discussion: This is an appeal from the order of the special inquiry
officer requiring the alien's deportation on the second, fourth and
fifth charges set forth above. We find only the second and third
charges sustained.
Respondent, a 51-year-old married male, a native and citizen of
Italy, testified that he entered the United States on the SS. Giulio
Cesare on August 23, 1922. No record of the admission can be found. He
was not in possession of a passport at the time of entry.
The first issue for consideration is raised by the respondent's claim
that he was lawfully admitted as a seaman. The Service, on the other
hand, holds that he was not so admitted and is deportable as one who
entered without inspection and without the passport required at that
time. To determine this issue, we must consider the alien's testimony
given on two separate occasions; the effect of laws and regulations
relating to the entry of aliens; and the absence of any record of
entry. The alien's testimony will be considered as it relates to
employment, documents, and inspection.
Testimony as to employment on the vessel. -- In a sworn statement on
February 5, 1952, the alien testified as follows. Some person, whose
status on the boat he did not know, took him on board the vessel to give
him a job. He was given work shoveling coal. He did not know whether
or not he was registered as a seaman on the vessel. He did not sign the
ship's articles when he came on board and in fact, "signed nothing.' He
did not bribe anyone to be brought on board the vessel and was not
charged passage. He ate with the rest of the crew members.
At his hearing, the alien testified as follows. Prior to leaving his
native city, he had been employed as long as he could remember as a
plasterer. He had never worked as a seaman. He went to Palermo to look
for employment which would pay him more than the work he had been doing.
At Palermo at a hotel, he met a man who offered him a job on board the
SS. Giulio Cesare. Prior to embarking he had never asked for employment
on any vessel. The man who had offered him the job was an officer on
the vessel; he was the boss of the black gang. Four or five days
later, he got on the vessel and was given the job of shoveling coal into
the furnace on board the vessel. He worked from ten to twelve hours a
day, having no regular shift, being put to work at any hour or any time.
He ate and lived with the crew. He could not recall signing anything
when he came on board the vessel and does now know whether or not he was
a member of the ship's crew. He was never taken before the captain,
first mate, second mate or the steward. Just before he got off the
ship, he was paid for his services. He left the ship the first day it
was in port although it remained three or four days. He never went back
to it. He never thereafter took employment on board a vessel.
Testimony as to documents. -- In the statement of February 5, 1952,
the alien stated he did not have a visa or Italian passport in his
possession when he left Italy or when he came to the United States;
that he never had an Italian passport. His then counsel, in the
presence of the alien, admitted the alien had entered the United States
without a passport in 1922.
At the hearing, the alien testified that he had never applied for an
Italian passport and never had asked for a book of identity which would
allow him to travel from Italy to another country either as a seaman or
an immigrant; and that he had not gone to any American consul or
official or to any Italian official to secure documents to come to the
United States.
Testimony as to inspection. -- On February 5, 1952, he stated that he
had entered the United States at New York, New York; when he arrived he
was not checked by immigration officers. The same man who gave him the
job on board the vessel gave him a pass (shore leave).
At his hearing, the alien testified: Before he got on board the
vessel, he was examined by a doctor in Italy, but was not examined by a
doctor in the United States. When he arrived in the United States, he
was not examined by immigration officers. He went down the ladder
leading from the ship and exhibited his pass to two officers who were
there on the pier. He believed these officers were police officers. He
could not recall standing inspection at any time with the rest of the
crew and could not recall being examined by any immigration officer when
he arrived in the United States.
A Service investigation covering records of arrivals of aliens, both
seamen and passengers, on the SS. Giulio Cesare for August 23, 1922,
disclosed no record relating to respondent.
The question as to whether respondent was admitted as a seaman cannot
be determined without considering the laws and regulations then in
effect, for the term "seaman' in the immigration laws is one of art. At
the time of the alien's entry, an alien to be a "seaman' was required
(1) to be employed in some capacity on board a vessel arriving in the
United States from a foreign place; and (2) was required to have signed
the ship's articles. Only aliens who met both requirements were to be
treated as seamen. The cases of all others were to be handled in
accordance with the general requirements of the immigration laws
(section 1, Act of February 5, 1917; Rule 10, subdivision 1,
Immigration Rules of May 1, 1917, Seventh edition, 1922). While the
alien may have been employed in some capacity on board the vessel, it is
clear that he was not signed on the ship's articles. This failure to be
signed on the ship's articles makes it legally impossible to hold he was
a "seaman' (United States ex rel. Candreva v. Smith, 27 F.(2d) 642,
C.C.A. 7).
Furthermore, the complete absence of compliance with other
requirements set up by law relating to the admission of seamen to the
United States is additional evidence that the alien was not a "seaman'
on board the vessel and could not have been admitted as a seaman. The
law required that responsible individuals in charge of a vessel deliver
to the immigration officer upon arrival "a list containing the names of
aliens employed on such vessel.' The list had to be visaed by an
American consular official (section 36 of the act of 1917; subdivision
3(a), Rule 10, supra; Executive Order 3629, February 1, 1922, Section
II). No record of his entry as a seaman appears. A seaman was required
to be in possession of satisfactory evidence of nationality (Executive
Order 2932, section 10(c)). The alien had none. /1/ The law required a
medical examination of all alien seamen (subdivision 4, Rule 10, supra).
The alien testified that no such examination was conducted. Finally,
the law provided that all seamen applying for admission shall be
regularly inspected by immigrant inspectors (subdivision 6, Rule 10,
supra). The alien does not recall any such inspection, and there is no
record of such an inspection.
These failures to comply with law rule out the possibility that the
alien could have been admitted as a seaman. When we consider that in a
deportation proceeding the law places upon the alien the burden of
establishing the time, place and manner of his entry (section 291 of the
act of 1952), it is apparent that there is ample reason to conclude that
the alien failed to establish that he entered as a "seaman,' and, that
it is reasonable to conclude that the omissions exist because the alien
concealed himself on board the vessel, did not offer himself for
inspection at the time the vessel arrived, and entered surreptitiously.
Counsel claims the alien may have entered as a "workaway.' At the
time the respondent applied for admission, the fact that an alien was a
stowaway or workaway would not have barred him from admission if he were
otherwise qualified for admission. Such alien, however, had to be
manifested and produced for inspection in the same manner as other
aliens and the fact that he was a stowaway had to be indicated on the
manifest (Rule 2, subdivision 4, Immigration Rules of 1917; Rule 10,
subdivision 3, supra). The admission of the workaway or stowaway had to
be ordered by a board of special inquiry (Rule 7, Immigration Rules of
1917; see Stone v. Tillinghast, 32 F.(2d) 447, C.C.A. 1). The alien's
name does not appear upon a manifest and there is no evidence that he
was given a hearing before a board of special inquiry. The burden of
establishing the manner of entry is upon the alien. In view of the
factors mentioned, we do not believe he has met that burden.
Counsel argues the presumption of official regularity requires the
conclusion that the alien was regularly admitted since he was permitted
ashore in 1922. The difficulty with this is that the law provided for
the admission of seamen only upon compliance with certain regulations.
The record establishes there was a failure to comply with these
regulations. It would therefore be improper to assume that the alien
was admitted in accordance with the law. On the contrary, the
presumption of official regularity would lead to the inference that
since the alien was ashore and had not complied with the conditions
relating to the admission of seamen, he had entered the United States
without submitting himself to the inspection of the proper officials.
We conclude that the record fails to establish that the alien was
lawfully admitted to the United States in any capacity. The alien
testified that he did not present himself for inspection and that he was
not inspected with the crew. His name does not appear on the records of
the vessel on which he came; there is no record of his entry or record
of his inspection. We believe it is established that he did not present
himself for inspection when he made his way into the United States. The
third charge (that he entered without inspection in 1922) will,
therefore, be sustained.
We come now to the charge that the respondent entered in 1922 without
a passport. The charge is sustained. In 1922, a passport was required
of aliens who sought entry into the United States (Title 7, section 31,
Executive Order 2932, August 8, 1918). "Passport' was defined as a
document "in the nature of a passport issued by the United States or by
a foreign government, which shows the identity and nationality of the
individual for whose use it was issued and bears his signed and
certified photograph' (Title 1, section 5, Executive Order 2932, August
8, 1918). The passport had to be visaed (Title 7, section 31, Executive
Order 2932, supra). It is clear that the alien was not in possession of
a passport or document in the nature of a passport and had he applied
for admission in the regular manner, this would have been the basis for
refusing him permission to enter. He was excludable at the time of
entry under the laws then existing. The 1952 act makes deportable any
alien who was excludable under the law existing at the time of entry
regardless of when the entry took place (sections 241(a)( 1) and (d)).
The charge based on his failure to possess a passport in 1922 should be
sustained. This is so, even if the respondent had applied for entry as
a seaman. He then too would have been required to be in possession of
evidence of nationality (See National Surety Corp. v. United States,
143 F.(2d) 831, C.C.A. 5). He had none, and counsel's contention that
such evidence of nationality could be supplied by the oral testimony of
other seamen is not supported by authority. Even an affidavit could not
take the place of the proper evidence of nationality (Takeyo Koyama v.
Burnett, 8 F.(2d) 940, C.C.A. 9 (1925)).
Counsel argues that the charges concerning failure to possess a
passport and entry without inspection cannot be sustained because of the
protection contained in the Immigration Act of 1917. He argues: The
1917 act provided that proceedings on the charges in question had to be
commenced within five years after entry; proceedings were not so
commenced; the alien, therefore, had the "right to permanent residence'
as it existed prior to the act of 1952. This "right,' he believes, is
preserved by the savings clause of the act of 1952 (section 405(a)). We
do not agree. We have previously held that an alien who was not
deportable prior to the act of 1952 because proceedings were barred by
the statute of limitations was nevertheless deportable under the act of
1952. We stated the savings clause in the act of 1952 did not continue
the bar to the alien's deportation caused by the statute of limitations
because the savings clause provided it would not preserve rights where
provision to the contrary was made and that both the language of the new
charges and that of section 241(d) were such provisions to the contrary
(Matter of C , E-076976, 5, I. & N. Dec. 630; Matter of A , E-081282,
Int. Dec. No. 636; see Matter of M , A-2669541, 5, I. & N. Dec. 261;
Matter of P , E-1356, 5, I. & N. Dec. 392; and Matter of R , E-080924,
5, I. & N. Dec. 612). This view was upheld in unreported decision
Carson v. Kershner, U.S. D.C., N.D. Ohio E.D., April 1954, Civil Action
No. 30800, appeal pending. /2/
Counsel, however, feels that we would be in error in continuing to
hold that the bar to deportation created by the statute of limitations
contained in the 1917 act no longer applies although the alien once had
such protection. In support of his view he cites United States ex rel.
De Luca v. O'Rourke, 213 F.(2d) 759, C.A. 8; and Bertoldi v. McGrath,
178 F.(2d) 977, C.A. D.C. We believe our position is correct and that
the cases cited by counsel do not require a change.
Let us first consider what protection the alien had prior to the
Immigration and Nationality Act of 1952. He entered illegally in 1922.
Even though he may then have been eligible to enter lawfully, his
illegal entry gave him no right to remain in the United States (Marty v.
Nagle, 44 F.(2d) 695, C.C.A. 9), appeal dismissed 283 U.S. 868; see
Bukta v. Zurbrick, 50 F.(2d) 593, C.C.A. 6). The mere lapse of time did
not convert his illegal entry into a lawful admission or his unlawful
stay into legal residence (United States v. Anastasio, 120 F. Supp.
435, 439, N.J.). While he could not be deported because proceedings had
not been timely brought, he had no "right' to remain in the United
States. We do not feel the "right' to illegal residence is meant to be
covered by the general language contained in a section such as the
savings clause.
Now, assuming arguendo, that he did have a "right' to remain in the
United States, there can be no doubt that Congress had the power to take
it away from him. In the Immigration and Nationality Act of 1952,
Congress took away the right to residence of aliens who had been
lawfully admitted and had not theretofore been deportable (United States
ex rel. Barile v. Murff, 116 F.Supp. 163, D.C. Md.). It is clear,
therefore, that they could take away the "right' of one who had no
lawful status in this country (United States ex rel. De Luca v.
O'Rourke, supra, p. 763; Harisiades v. Shaughnessy, 342 U.S. 580;
Carlson v. Landon, 342 U.S. 524, 534).
Congress had the power to provide for the removal of aliens who had
previously been protected by the statute of limitations. We believe
that the act of 1952 was passed with the intent of accomplishing this
end. The report of the Subcommittee whose basic findings and
recommendations resulted in the Immigration and Nationality Act contains
a discussion concerning the five-year limitation under the 1917 act on
the deportation of aliens who entered illegally. The committee stated,
"It is the recommendation of the subcommittee that the time limitation
on their deportation after entry should be eliminated. If the cause of
exclusion existed at the time of entry, it is believed that such aliens
are just as undesirable at any subsequent time as they are within the
five years after entry' (Senate Report 1515, 81st Congress, 2d session,
p. 389). In the House when the bill which became the 1952 act was being
considered, an amendment to provide for a five year statute of
limitations on aliens who entered without inspection or without certain
documents whether the entry occurred before or after the effective date
of the proposed legislation was defeated. In opposition to the
amendment, Mr. Walter, who introduced the bill which became the 1952
act, stated "this amendment affects only those people who are in the
United States illegally -- illegal entrants * * *. It seems to me that
the United States should have the authority to deport at any time an
alien who is illegally in the United States' (Congressional Record, Vol.
98, April 25, 1952, pp. 4433-4434). The 1952 act was expressly designed
to facilitate deportation of undesirable aliens who could not previously
be deported (See Senate Report 1137, 82d Congress, 2d session, p. 22).
The matters we have set forth reveal that it was the intent of
Congress to make undesirable aliens deportable no matter how long they
have been in the United States. However, we might also point out
further that the act of 1952 succeeded in making aliens deportable who
had lawfully entered the United States and had not been deportable prior
to the 1952 act. Thus, an alien lawfully admitted to the United States
who prior to the act of 1952 had been convicted of two crimes involving
moral turpitude, but had not been sentenced more than once to a term of
a year or more, could not be deported. Under the act of 1952, such an
alien can be deported despite long legal residence in the United States,
and even though the crimes had been committed as far back as the year in
which the respondent herein entered the United States. We do not
believe that it was the intent of Congress that an alien who was
illegally in the United States because of the manner of his entry and
who could not be deported because of the statute of limitations, should
be in a better position than an alien who had entered the United States
lawfully and had committed and act which was not a deportable offense at
the time it was done.
Finally, we think the intent of Congress to deport aliens illegally
in the United States despite their previous protection under the statute
of limitations is clear from the language of the act itself. For
example, subsection 1 of section 241(a) provides for the deportation of
aliens who at the time of entry were excludable under laws then in
existence. This is so comprehensive that it would seem to apply to
those who had entered prior to the date of the act, no matter when they
entered, and no matter what protection they had previously by reason of
a statute of limitations. What then was the necessity for inserting an
additional clause (section 241(d)) stating that aliens were to be
deportable regardless of the date of their entry, if not to remove all
doubt and emphasize that Congress meant exactly what was said in
subsection 1, supra?
We do not believe the cases cited by counsel are authority for the
view that the act of 1952 retained the protection of the statute of
limitations which prevented the deportation of aliens who had entered
the United States illegally. In Bertoldi, supra, the issue was whether
a naturalization proceeding in process was saved by a savings clause.
The court held that "rights in process of acquisition' were saved. No
naturalization proceedings or right in process of acquisition is
involved herein. De Luca, supra, did not involve a ground of
deportation covered by the statute of limitations; neither section
241(a)(1) nor 241(d) with which we are concerned in the instant case was
involved in De Luca. That case concerned the effect to be given to a
judicial recommendation against deportation made prior to the 1952 act
and which had been considered sufficient to prevent the deportation of
De Luca although he had been convicted of narcotic violations which
would otherwise have made him deportable (see also Ex parte
Robles-Rubio, 119 F.Supp. 610, Calif.). The Service brought proceedings
under the 1952 act on the theory that Congress intended to nullify the
effect of the judicial recommendation against deportation because the
clause in the 1952 act under which proceedings had been brought, no
longer made reference as did its counterpart in the previous law, to the
section permitting recommendations against deportation -- the section
which although dealing with convictions for crimes involving moral
turpitude (a different deportable offense) had been interpreted to
permit effective recommendations in narcotic convictions. This failure
in the new act to refer to the section dealing with recommendations
against deportation, a section which was continued as to crimes
involving moral turpitude, and the fact that the Congress did not
expressly provide for recommendations in narcotic cases were the bases
of the Service inference. As we read De Luca, the court in refusing to
draw the same inference stated: Nowhere does it appear that in narcotic
cases Congress had the intent of nullifying previous recommendations
against deportation or taking away the power of the court in narcotic
proceedings to make recommendations against deportation. Nowhere in the
law is it said that such things should be done. The power to make
recommendations if convictions are for crimes involving moral turpitude,
is continued -- De Luca's convictions involve moral turpitude. Under
all these circumstances there is doubt that Congress intended to deprive
aliens like De Luca of the protection they previously had. This doubt
would be resolved in their favor by applying the language of the savings
clause which preserved "documents,' "acts' and "status.' The
recommendation made by the court in his case had been an act in the form
of a document and created a status for De Luca. /3/
The situation before us, while still not analagous, would be more
like that in DeLuca if the 1952 act merely provided for the deportation
of aliens who entered illegally and had no period of limitations. But
that is not the case. In providing for the deportation of aliens who
had entered illegally, Congress did not merely reenact the "old' law and
drop the reference to a period of limitations, leaving the intent to
take away the ripened protection as a matter to be inferred from that
action and silence. Here Congress spoke clearly to accomplish its
purpose. In the 1952 act, Congress said nothing about a period of
limitations and made the alien deportable if he had entered illegally
under the law existing at the time of his entry. The command that an
alien was to be deported regardless of the date of his entry was
reiterated in section 241(d), act of 1952. We have previously pointed
out that it was the intent of Congress to accomplish this result. Our
conclusion that Congress intended to remove the protection of the
statute of limitations which was formerly applicable is not dependent
upon statutory rearrangement and silence. There is no room for
reasonable doubt on the point.
The results that would follow from counsel's contention reveal its
unsoundness. De Luca does not prevent the application of section 241(
d) to a narcotic voilator who had not received a recommendation against
deportation. Such person would be deportable no matter when he entered
and no matter when he was convicted. If counsel's view were followed,
deportation of one who entered without a passport could be ordered on
that ground only if the alien entered after December 23, 1947. This is
because only such a person would not have been protected by the
five-year period of limitation before the 1952 act went into effect. In
view of the language of the act and the expressed intent of Congress, we
do not believe De Luca can be authority for limiting the broad
provisions of section 241(d) in the manner suggested by counsel.
We note these further significant differences between the instant
case and De Luca. (1) De Luca concerned something clearly in the
savings clause -- a document executed by the court (the recommendation
against deportation). No such document is involved herein. (2) In De
Luca the court's recommendation against deportation permitted the alien
to retain his right to lawful permanent residence; the alien herein
never had lawful permanent residence. (3) Furthermore, in De Luca, the
court considered the narcotic convictions as involving moral turpitude,
and pointed out that where convictions for crimes involving moral
turpitude were concerned, a recommendation against deportation was still
effective. This view would have resulted in a situation where the court
could recommend against deportation if it viewed the crime from the
aspect of moral turpitude, but could not make recommendation if it
considered it solely as a violation of narcotic laws. No such
inconsistency is involved as the result of our ruling which makes all
aliens who entered illegally deportable whether the entry was prior to
or after the act of 1952.
Counsel contends that since the warrant was issued prior to the 1952
act, the charges must be determined under the law in existence prior to
1952 and that it was therefore improper to consider charges placed under
the 1952 act. We do not agree with counsel. An alien must be afforded
due process, but otherwise, has no right to be deported in any
particular manner as long as the provisions of law are followed. The
function of the warrant is merely to bring the alien under the
jurisdiction of the Immigration Service. It does not confine the
Government to any particular type of charge as long as deportation is
ordered upon a charge which the alien has been given full opportunity to
meet (Guiney v. Bonham, 261 Fed. 582, C.C.A. 9; United States ex rel.
Catalano v. Shaughnessy, 197 F.(2d) 65, C.A. 2). There is nothing in
the law which prevents the use of charges under the 1952 act where the
warrant was served previous to that act (United States ex rel. Circella
v. Neelly, 115 F.Supp. 615, 624, N.D. Illinois, affd. 216 F.( 2d) 33,
C.A. 7; see United States ex rel. Boric v. Marshall, 4 F.Supp. 965).
In none of the four cases cited by counsel on his point do we find in
issue the question as to the propriety of ordering deportation of an
alien under a charge placed under a law which became effective after the
warrant of arrest was issued.
Counsel argues that since the unqualified expiration or termination
of a statute without a savings clause destroys all rights and
liabilities depending upon the statute, and since the laws which made
the alien's entry in 1922 unlawful have expired, without provision
having been made to save the ground of deportability, the alien cannot
now be deported. Subsequently, we shall state our difference in opinion
with counsel on the question as to the expiration of the laws in
question. At this point, we will discuss our disagreement with the
implication that the right of the Government to deport an alien who
entered the United States prior to the date of the act of 1952 is
dependent upon the existence of a law which made an alien's stay
unlawful up to the very date of the passage of the act of 1952. This
contention of counsel begs the issue, which is not whether the alien was
previously deportable, but whether he is deportable under the act of
1952. The act of 1952 made aliens deportable who previous to it had
been in the United States in violation of no immigration law (United
States v. Murff, supra; Matter of P , E-1356, 5, I. & N. Dec. 392;
Matter of H , A-6244791, December 15, 1954, Int. Dec. No. 668). Our
power to order an alien's deportation is therefore not based upon the
fact that the alien was in a deportable status prior to the act of 1952.
It follows that if the act of 1952 requires his deportation, we cannot
say it is not so because the alien could not be deported prior to the
act of 1952. The charge against the alien under the act of 1952 is 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. We have found
he was excludable at the time of entry because he was not in possession
of the documents required by law. Therefore, the charge should be
sustained without regard to whether or not the law which was in effect
at the time of his entry terminated prior to the enactment of the act of
1952. Cases cited by counsel on this point do not appear applicable.
Furthermore, we do not agree with counsel that the act of 1918, as
amended by the act of 1921, was not continued in existence up to the
time the act of 1952 went into effect. Despite an indication in Johnson
v. Keating, 17 F.(2d) 50, C.C.A. 1, /4/ and 39 Op.Atty.Gen. 509, that
the 1918 act, as amended, had been repealed insofar as immigrants were
concerned (it is to be noted that counsel does not claim that respondent
was an immigrant), the Chief Executive of the United States recited the
1918 act as extended by the 1921 act as authority for the promulgation
of Executive Order 8430, issued on June 5, 1940, which sets forth the
documents required of both immigrants and nonimmigrants for entry into
the United States; the Congress of the United States in 1941 considered
the 1918 act, as amended, a valid and existing law by amending it on
June 21, 1941 (55 Stat. 252; 22 U.S.C. 223-226) and in 1952 further
indicated its belief that the 1918 act, as amended, was in existence by
making specific provision for the repeal of the 1918 act, as amended
(section 403(a)(15), act of 1952; see also National Surety Corp. v.
United States, supra; and Flora v. Rustad, 8 F.(2d) 335, C.C.A. 8).
Finally on this point, it was not the 1918 act which made the
respondent deportable. The 1918 act merely created a condition of
admission; it was the Immigration Act of 1917 which made the alien
deportable as one excludable at time of entry (United States ex rel.
Vajta v. Watkins, 88 F.Supp. 51, S.D. N.Y., affd. 179 F.(2d) 137, C.A.
2). The 1917 act remained in full force and effect until repealed by
the act of 1952 (section 403(a)(13), act of 1952).
The preceding several pages may now be summarized as follows. At the
time of the alien's entry, he was required to be in possession of a
passport and to be inspected. He was not inspected and he did not have
the passport. He therefore entered illegally and if proceedings had
been brought within five years after his entry, he could have been
deported. Such proceedings were not brought. The inability of the
Government to deport him and his continued residence in the United
States did not convert his illegal presence into legal presence. The
1952 act made him deportable despite the previous statute of
limitations. The savings clause of the 1952 act did not protect the
alien's right to remain in the United States illegally and furthermore
was not applicable because of the specific provisions of section 241(d)
and the language involved in the charge itself. It was, therefore,
proper to order the alien's deportation under section 241(a)(1) and (2)
of the act of 1952.
Counsel argues that section 34 of the 1917 act must be followed.
This section related solely to "seamen.' We have pointed out that the
alien was not a "seaman' in the eyes of the immigration laws. The
section therefore had no application to the alien, who entered without
inspection. Furthermore, even if he were a seaman, the 1952 act
specifically makes an alien deportable who entered without inspection
and it does not differentiate the procedure which must be followed in
giving him a hearing on the charge (See United States v. Vanbiervliet,
284 U.S. 590; Phillippides v. Day, 283 U.S. 48).
We come now to the fourth charge relating to the alien's
participation in commercialized vice. The evidence establishes that
from 1929 to 1931 and from 1939 to 1950, the alien earned his livelihood
in illegal activities relating to the sale of liquor, the taking of
numbers, and other gambling activities. His income from the operation
of his illegal enterprises, in the later years, ran about $25,000 a
year. He was convicted on several occasions for violation of lottery
laws and on one occasion for violation of bootlegging laws. He is
charged with being deportable under section 241(a)(12) of the act of
1952 which makes deportable certain aliens who engaged in "unlawful
commercialized vice, whether or not related to prostitution.' The charge
cannot be sustained.
In Matter of B , A-5164327, Int. Dec. No. 601, we held that an alien
who has engaged in unlawful commercialized vice after entry is not
deportable under section 241(a)(12) of the act as a member of a class
specified in section 212(a)(12) unless he was coming to the United
States to engage in unlawful commercialized vice. The record does not
establish that the alien herein was coming to the United States to
engage in commercialized vice in 1922 and while there is some indication
in connection with the alleged entry in 1931 that he reentered to pursue
illegal activity in bootlegging narcotics, or counterfeiting, it is not
substantial evidence and the fact of entry is not established. The
fourth charge will not be sustained.
The fifth and sixth charges relate to an entry the Government claims
as made by the alien in 1931. The sole evidence as to the occurrence of
this entry consists of testimony of Government witness N who testified
that about January or February 1931, he drove the alien to Mexico in an
automobile borrowed from one O B in Pennsylvania. There is considerable
doubt as to whether the trip could have occurred as alleged because of
evidence introduced by counsel revealing that B was a resident of
California at the time the trip was alleged to have occurred and was not
in Pennsylvania at the time of the trip. The Government has failed to
bear the burden of proof of establishing the alien's deportability on
the fifth and sixth charges. They will not be sustained.
The first and seventh charges were not sustained by the special
inquiry officer. We agree with his conclusion. Various objections as
to the deprivation of due process have been considered and found to be
without merit (See United States ex rel. Marcello v. Ahrens, 212 F.(2d)
830, C.A. 5, certiorari granted 348 U.S. 805). The alien received a
fair and impartial hearing. It is argued by counsel that the alien's
name appears upon a proscribed list. United States ex rel. Accardi v.
Shaughnessy, 347 U.S. 260 (1954), is quoted and we, therefore, assume by
this that counsel refers to the action of the Attorney General in
directing that action be taken by an agency to determine the
deportability of certain "criminal or subversive' aliens. Whether or
not the alien's name appears upon such a list, we do not known.
Counsel's unsubstantiated charge is, of course, no proof that the name
does so appear and we will not assume that it is so. We will add,
however, that even if evidence of such a fact had been presented, it
could not and would not have influenced the decision of this Board which
is charged by law with making a decision as to deportability "only upon'
the record presented to it (section 242(b), act of 1952; 8 C.F.R.
242.54); and furthermore, has been charged by the Attorney General with
the necessity of acting with complete freedom at arriving at a decision
in any matter before it regardless of the interest of any other unit of
the Department of Justice in the outcome of the case. /4/ Finally, our
findings are not based upon the testimony of one witness in preference
to another, but upon the alien's own testimony and matters of records
created by law. It is charged the Government was a conscious militant
participant in trial by newspapers. This grave charge is entirely
unsubstantiated. Constitutional objections are not considered by this
Board.
Order: It is ordered that the appeal be dismissed and the alien be
deported from the United States, pursuant to law, on the charges
numbered two and three in the caption of this order.
(1) Counsel's contention that oral proof of nationality would have
been sufficient is discussed infra.
(2) EDITOR'S NOTE: U.S. Circuit Court of Appeals on December 17,
1955, set aside District Court order and remanded case for further
proceedings (228 F.(2d) 142). Petition for writ of certiorari filed
with U.S. Supreme Court April 1956 pending.
(3) The conclusion in De Luca that a recommendation in a narcotic
case is preserved is followed by this Board (Matter of C M , A-1776931,
February 3, 1955, Int. Dec. No. 683).
(4) Decision overruled in United States ex rel. Polymeris V.
Trudell, 284 U.S. 279, 76 L.Ed. 291, without discussion of the issue now
under consideration.
(5) Order No. 45-54, April 23, 1954, from the Office of the Attorney
General, states:
(1) Wherever the regulations confer upon any officer or the
Board of Immigration Appeals a power to hear and decide, this
power is to be exercised fully and faithfully. It is expected
that such officers and the Board will exercise their independent
judgment and such independent discretion as the regulations confer
upon them.
(3) It has for some time been the policy of this Department,
publicly announced, to proceed with vigor against aliens who are
in the United States illegally and whose criminal or subversive
activities make their prompt deportation desirable in the national
interest. This program will continue. However, neither the
selection nor the identification of cases believed to be within
the scope of this program is any responsibility of those
exercising adjudicatory functions in deportation proceedings.
Effectuation of the program has been, and continues to be, the
responsibility of those charged with prosecuting duties.
Accordingly, it is not intended that there be any departure from
the regulations in the hearing and decision of any individual
case, whether or not it is thought to fall within the policy of
deporting criminal or subversive aliens. Those charged with the
duty of hearing and deciding must give each alien a fair and
impartial trial, without prejudgment on the basis of assertions by
any official having the function of prosecuting these cases.
Section 212(c) of Immigration and Nationality Act -- Power of special inquiry officer to grant relief in deportation proceedings -- 8 C.F.R. 242.61(c).
In deportation proceedings brought under section 241(a)(1) of the Immigration and Nationality Act by reason of alien's conviction of crime prior to entry, the special inquiry officer is empowered to grant relief under section 212(c) of the Immigration and Nationality Act in view of the provision in 8 C.F.R. 242.61(c) "The order of the special inquiry officer shall be * * * (5) that such other action be taken in the proceedings as may be required for the appropriate disposition of the case.'
CHARGE:
Warrant: Section 241(a)(1) -- Act of 1952 -- Excludable at time of
entry Convicted of crime prior to entry, to wit Petty Larceny.
Discussion: An order terminating the proceedings pursuant to a nunc
pro tunc waiver of existing grounds of inadmissibility was entered by
the special inquiry officer in the above-captioned case on April 30,
1954. The case has been certified under 8 C.F.R. 6.1(c) for review of
the special inquiry officer's decision.
The record relates to a native and citizen of Italy, male, married,
47 years of age, who last entered the United States at the port of
Hidalgo, Texas, on November 18, 1951, and was admitted as a returning
resident alien. He has been found subject to deportation on the charge
stated above and no exceptions have been taken to this finding.
This Board last considered the case on October 27, 1953, and we were
of the opinion that respondent should be afforded an opportunity to
apply for discretionary relief under section 212(c) of the Immigration
and Nationality Act of 1952. We noted that respondent had resided in
the United States since May 25, 1914; that he is married to a
native-born citizen of the United States; that he is the father of five
citizen children; and that it appeared that he had adequately
rehabilitated himself. We remanded the case for further action looking
to the grant of relief under section 212(c) of the Immigration and
Nationality Act of 1952.
When this Board originally considered the case on October 27, 1953,
we noted the comments of the special inquiry officer in his decision of
August 25, 1953, relative to his authority to enter an order exercising
section 212(c) relief under existing regulations. We remanded the case
to permit application for this relief and to supplement the record
pertinent thereto. The special inquiry officer in his opinion of April
30, 1954, considered the merits of respondent's application for a nunc
pro tunc waiver of the grounds of inadmissibility existing at the time
of respondent's last entry.
The question arises as to whether 8 C.F.R. 242.61(c) includes within
its scope authority for such action on the part of the special inquiry
officer. We are of the opinion that it does. Section 242.61(c) /1/
specifically mentions that the special inquiry officer has authority to
enter orders granting discretionary relief in the form of suspension of
deportation or voluntary departure in lieu of deportation. Category (5)
of paragraph (c) provides that the special inquiry officer may take
"such other action * * * in the proceedings as may be required for the
appropriate disposition of the case.' Whereas in the instant case the
exercise of section 212(c) relief is warranted, the action taken by the
special inquiry officer fulfills the requirement of an "appropriate
disposition of the case.' After careful consideration of all the factors
presented by the special inquiry officer in his opinion of April 30,
1954, the order entered will be amended.
Order: It is ordered that the order entered by the special inquiry
officer April 30, 1954, be and the same is hereby amended to provide:
It is ordered that pursuant to the discretion contained in
section 212(c) of the Immigration and Nationality Act the alien be
considered as having been lawfully admitted to the United States
for permanent residence at Hidalgo, Texas, on March 10, June 24,
and November 18, 1951, notwithstanding his inadmissibility at that
time as one who was convicted of a crime involving moral
turpitude, to wit: Petty Larceny (1931 and 1932), subject to
revocation in the discretion of the Attorney General after hearing
if the alien subsequently commits any offense.
It is further ordered that the amended order be and the same is
hereby affirmed and the proceedings terminated.
(1) Section 242.61(c) of Title 8, C.F.R., reads:
(c) Order of special inquiry officer. The order of the special
inquiry officer shall be (1) that the alien be deported, or (2)
that the proceedings be terminated, or (3) that the alien's
deportation be suspended, or (4) that the alien be granted
voluntary departure at his own expense in lieu of deportation
within such period of time or authorized extension thereof and
under such conditions as the district director or officer in
charge having administrative jurisdiction of the office in which
the case is pending shall direct, with the further order that, if
he fails to depart, he be deported, or (5) that such other action
be taken in the proceedings as may be required for the appropriate
disposition of the case * * *.
Visitor for business -- Section 101(a)(15)(B) of Immigration and Nationality Act -- Annual sale of Christmas trees.
Nonimmigrant status under section 101(a)(15)(B) of the Immigration and Nationality Act is not established by an alien who seeks to enter the United States for a period of two weeks to sell Christmas trees previously purchased by her in Canada, where the evidence shows that she has engaged in such business for the preceding three years and intends to continue therein for an indefinite number of years in the future.
EXCLUDABLE:
Section 212(a)(20) of the Act of 1952 -- Not in possession of a
valid, unexpired immigrant visa and valid passport.
Discussion: The case is before us on certification by the Acting
Assistant Commissioner, Inspections and Examinations Division, of the
order dated December 31, 1954, pursuant to 8 C.F.R. 6.1(c).
The record relates to a native and citizen of Canada, 45 years old,
female, who applied for entry into the United States at the port of
Detroit, Michigan, on December 12, 1954, for the purpose of selling
Christmas trees retail and wholesale at the Eastern Market in Detroit,
Michigan, until December 25, 1954. The applicant and her husband had
purchased Christmas trees in Burk's Falls, Ontario, Canada, for sale in
the United States from the end of November until December 25, 1954, and
have done so for the past three years. Apparently the applicant will
remain in the United States for several weeks until the trees are sold.
She however has no intention of abandoning her residence or domicile in
Canada. She and her husband expect to continue in the seasonal business
of selling Christmas trees for an indefinite number of years in the
future. The question to be decided is whether the applicant is
admissible as a nonimmigrant temporary visitor for business or whether
she is to be regarded as an immigrant and required to present the
necessary immigrant documents.
The term "immigrant' is defined in section 101(a)(15)(B) as excluding
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 or temporarily for pleasure. The pertinent
regulation of the Department of State, 22 C.F.R. 41.40(b) sets forth
that the term "business,' as used in section 101(a)(15)(B) of the act,
refers to legitimate activities of a commercial or professional
character. It does not include purely local employment or labor for
hire. 22 C.F.R. 41.42(b) provides that an alien applying for a visa as
a nonimmigrant under the provisions of section 101(a)(15)(B) of the act
shall establish specifically that: (1) he has residence in a foreign
country which he has no intention of abandoning; (2) he is not
classifiable under any of the nonimmigrant categories defined in section
101(a)(15)(F), (H), or (I) of the act; (3) he is proceeding to the
United States temporarily for one of the purposes specified in section
101(a)(15)(B) of the act; (4) he intends in good faith, and will be
able, to depart from the United States at the expiration of a temporary
stay; (5) he is in possession of a valid foreign visa or other form of
permission to enter some foreign country upon the termination of his
temporary stay; and that (6) he has made adequate financial provision
to enable him to carry out the purpose of his travel to, sojourn in, and
departure from the United States.
The definition in the present act as to a temporary visitor for
business or pleasure differs but very little from the definition
contained in section 3(2) of the prior Immigration Act of 1924 which
stated that when used in that act the term "immigrant' meant any alien
departing from any place outside the United States destined for the
United States except an alien visiting the United States temporarily as
a tourist or temporarily for business or pleasure. The word "business'
as used in section 3(2) of the Immigration Act of 1924 was held to be
limited to intercourse of a commercial character on the reasoning that
Congress did not intend to admit aliens temporarily for business to
engage in labor for hire in competition with the American workers whose
protection it was sought to procure. /1/ The business for which the
alien is coming must be temporary and not continuing or permanent in
character; not only the visit but the business must be of a temporary
character. /2/ Thus, the business has been held not to be of a
temporary nature when the applicant while continuing to reside in
foreign contiguous territory sought to enter daily to operate a
restaurant in the United States; /3/ to peddle Mexican produce; /4/ to
sell Canadian bread to retailers and consumers; /5/ or where entry was
desired several times weekly to continue a business of 10 years'
standing to sell and deliver to 340 subscribing customers in the United
States 600 magazines each week of a foreign publication. /6/ In the
latter case the regularity and permanence of the activity precluded a
finding that the business was temporary.
An alien was found to be a temporary visitor for business who, while
continuing to reside in Mexico, came across the border almost daily to
pick up scrap paper here for which he paid and who returned on the same
day to Mexico where he sold the scrap paper, earning his living by such
transaction. /7/ This case laid down the following significant
considerations to be stressed: (1) there is present a clear intent on
the part of the alien applicant to continue the foreign residence and
not abandon the existing domicile; (2) the principal place of business,
and the actual place of eventual accrual of profits, at least
predominantly, remains in the foreign country; (3) while the business
activity itself need not be temporary, and indeed may be long continued,
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 existence of the two preceding considerations. /8/
In the instant case the seasonal trade in Christmas trees has existed
for the past three years and is expected to continue indefinitely in the
future. The applicant is assisted by her husband who buys the trees in
Ontario, Canada, and has taken a leave of absence, from his work as a
fireman on the railroad for the months of November and December. The
husband testified that he purchased the trees from various farmers who
brought them to his place in Canada. It is to be noted that the sale of
the trees at wholesale and retail takes place in the United States and
the accrual of profit occurs entirely in this country. The trees are to
be sold in the local market in Detroit. The applicant engaged in the
Christmas tree business only in the United States; in Canada she is a
housewife. In view of these considerations of the regularly recurring
seasonal nature of the business for an indefinite number of years in the
past and in the future, the sale of the trees and conduct of the
business solely in the United States, and the accrual of profits
entirely within this country, it is concluded on the basis of cited
decisions that the applicant's status is not consistent with that of a
nonimmigrant visitor for business within the provisions of section
101(a)(15)(B) of the Immigration and Nationality Act.
Order: It is ordered that the appeal be and the same is hereby
dismissed.
(1) Karnuth v. United States ex rel. Albro, 279 U.S. 231, 241.
(2) Matter of C , 56172/725; Matter of R V , 55977/752 (June 20,
1938).
(3) Matter of R V , idem.
(4) Matter of G , 56107/744 (October 9, 1942).
(5) Matter of B , 56038/402 (May 21, 1940).
(6) Matter of C R , 56158/342 (December 16, 1944).
(7) Matter of G P , A-7828235, 4, I. & N. Dec. 217 (C.O. 1850).
(8) Matter of G P , (supra, note 7); Matter of G , Int. Dec. No.
626 (1954). These cases cite the following instances in which it was
held that the alien was entitled to the status of a temporary visitor
for business: Matter of G , A-7182159 (C.O., 1949), alien bought green
peppers in Mexico and brought commodity to United States by truck,
thereafter making deliveries in United States, performing the incidental
manual labor as a sole operator since major portion of alien's time was
not spent in the United States nor his major source of income earned in
the United States; Matter of S , A-6877300 (C.O., 1948), sales
representative of Canadian advertising firm was admitted as temporary
visitor for business to solicit accounts of long standing which would
continue indefinitely in the future; Matter of McC , A-7134304 (C.O.,
1949), Canadian proprietor of general trucking business who entered the
United States to unload fish which he had been doing for eight years
because relatively short part of work day was spent in the United
States; Matter of S , A-7118993 (C.O., 1949), business activity by
Canadian firm operating eleven trucks comprising the sale of
Canadian-bought fish in New York with return load of fruit in New York
at twice-weekly intervals; Matter of N Y , A-6149811 (C. O., 1947),
sales agent for Mexican banana exporting firm who entered frequently for
60-day periods to work with an American company to whom his firm sold
bananas; Matter of C , A-6811403, B.I.A., Dec. 15, 1948, 3, I. & N.
Dec. 407, trucker and peddler who seasonably bought potatos in Colorado
for resale in Mexico; Matter of A , A-7176002 (July 28, 1949, B.I.A.),
Mexican customs broker subleased part of an office in the United States
and spent several hours a day in the United States as convenience to
shippers in connection with exportation of United States goods to Mexico
but maintained principal place of business as licensed Mexican customs
broker in Mexico.
EDITOR'S NOTE: Cf. Matter of B and K , A-8863817-8, Interim Decision
No. 751.
Communist Party of the United States -- Evidence of membership -- Deportability of nominal or inactive member.
(1) Respondent's membership in the Communist Party of the United States in 1938 was established by testimony of two witnesses: one, an undercover agent of local police department who identified as authentic a Communist Party membership book for the year 1938 in the name of respondent showing payment of dues from July to November 1938; the other witness, a former member of the Communist Party, who testified he saw respondent in attendance at a closed Communist Party meeting in 1938 and heard leading members of the Party refer to respondent as a member; and which testimony the respondent refused to contradict.
(2) Voluntary membership in the Communist Party renders an alien deportable even though his association with the organization is "nominal' or "inactive.'
CHARGE:
Warrant: Act of 1952 -- Excludable at time of entry as an alien who
was a member of the Communist Party of the United States.
Discussion: On June 10, 1954, counsel was served with the order of
the special inquiry officer requiring the respondent's deportation on
the ground stated above. Appeal was not taken. After the running of
the period for timely appeal, a motion was made to the special inquiry
officer for reconsideration of the order of deportation. The motion was
denied. Appeal from this denial is now before us. We believe the alien
was properly found deportable and the special inquiry officer did not
abuse his discretion in denying the motion to reconsider.
Respondent, a 54-year-old married male, a native of Scotland and
citizen of Great Britain, was admitted to the United States for
permanent residence in 1923. Since then, with the exception of short
visits to Canada, the last in 1947, he has resided in the United States.
The special inquiry officer found that respondent had been a voluntary
member of the Communist Party of the United States at Los Angeles
County, California, during at least part of 1938. Counsel contends this
conclusion is error because the evidence is insufficient to establish
Communist Party membership; and that even if membership is established,
the record reveals activity that is so nominal as to take the alien out
of the deportable class. Constitutional objections are also raised.
We consider the issues to be (1) does the evidence establish that the
respondent joined the Communist Party; and (2) if so, does the
membership resulting exempt the alien from deportation as a matter of
law.
The facts have been fully stated by the special inquiry officer. He
found membership in the Communist Party had been established by the
testimony of Government witnesses K and R .
K , then an undercover agent of the Police Department in Los Angeles,
California, was a member of the Communist Party from 1928 to 1939. From
1936 to 1939, inclusive, he dealt with Communist Party membership
records. He then saw the name of A R A , on official Communist Party
membership records. These records revealed that A was by occupation a
gardener and of foreign birth. K received a Communist Party membership
book for the year 1938 which had been issued for A . He gave this book
to a high Communist Party official for delivery to A ; accompanied this
official to the home of A ; and was introduced to him. He testified
that the A to whom he had been introduced and the respondent were one.
He stated that he had not actually seen the delivery of the book.
Counsel did not cross-examine K , although he was given an opportunity
at two different hearings to do so.
Government witness R testified that he saw the respondent at one
Communist Party meeting, a meeting closed to all but members of the
Communist Party. This was a meeting in Los Angeles attended by
representatives of all units of the Communist Party. R further
testified that in 1938, the respondent's name had been mentioned by
leading members of the Communist Party in a discussion concerning
individuals who it was thought could be used in a drive to boost
membership in the Young Communist League. R was cross-examined at
length.
A Communist Party book for the year 1938, made out in the name of A R
A , Los Angeles County, and showing payment of dues from July to
November 1938, was made a part of the record. K identified this as an
authentic Communist Party membership book which had been issued for the
year 1938. He was not questioned as to the relationship of the book to
respondent. The Service does not argue that the book bears the
handwriting of the respondent.
Respondent testified that he is a nurseryman. He testified
concerning alienage and entries and other matters not relating to past
membership in the Communist Party. On advice of counsel, he refused to
state whether he had been a member of the Communist Party in the past,
although he did state that at the time of testifying, he was not a
member of the Communist Party. He did not contradict the testimony of
the two Government witnesses and made no comment concerning the
Communist Party membership book which had been introduced into evidence.
Counsel argues that K and R are incredible witnesses. We have
carefully reviewed the record in light of this contention. The special
inquiry officer, with full opportunity to observe the manner in which
they testified, found them credible. Their uncontradicted testimony
which is corroborated to the extent that each places the respondent in
the Communist Party in 1938 cannot be ignored. We believe that the
uncontradicted testimony of the two Government witnesses should be
accepted as establishing Communist Party membership. Furthermore, the
Communist Party membership book is entitled to some weight in view of
the fact that it has been identified as an authentic Communist Party
book for 1938 by K ; two Government witnesses had testified that
respondent had been a member of the Communist Party in 1938; there is a
presumption that identity of name is identity of person; and the
respondent was silent in the face of these factors. Respondent's
membership in the Communist Party in 1938 is established by evidence
that is reasonable, substantial and probative. In arriving at our
conclusion, we have considered the affidavits submitted on behalf of
respondent.
Counsel argues that even if the record establishes that the
respondent was carried on Communist Party membership rolls, there is
nothing to show that respondent accepted or agreed to the membership.
The argument must be rejected. The fact that K was introduced to A by a
high Communist Party official who had gone to A to deliver a Communist
Party membership book; the fact that R saw A at a closed Communist
Party meeting and subsequently heard his name discussed by Communist
Party officials as one who could be depended upon to do Communist Party
work; the existence of the Communist Party book showing payment of dues
over a period of time; and the respondent's failure, in the face of all
the evidence, to contradict this testimony or deny the book was his or
that it was received by him are most persuasive proofs that he
voluntarily and knowingly sought and accepted membership in the
Communist Party.
The second issue is whether membership, even if it existed, was so
nominal as to take the alien out of the deportable class. Counsel
argues the membership is nominal because it is "inactive' and that it is
"inactive' because the record, at the most, does not establish that the
respondent did more than occasionally attend meetings. Counsel's belief
that an inactive member of the Communist Party is not deportable is
based on his interpretation of the court's holding in Galvan v. Press,
347 U.S. 522. We read this case differently.
Galvan concerned an alien whose deportation was sought under the
Internal Security Act of 1950 on the ground that he had been a member of
the Communist Party after entry. Three issues were involved: (1) a
constitutional question which does not enter here; (2) whether or not
the alien had joined the Party; and (3) whether the fact that the alien
had no knowledge of the illegal purposes of the Party was material. The
court found Galvan had joined the Communist Party; that even if he had
not known the true purpose of the Party, he would be deportable; and
that the evidence of record did not place Galvan in any of those
categories of members of subversive organizations who Congress had
stated should not be deported.
Counsel's argument may be stated as follows. In Galvan, the court in
effect said, Galvan was an active member, therefore, he could not be a
nominal member. It follows that had Galvan been an inactive member, he
would have been held to be a nominal member and not deportable. A is an
inactive member, therefore, he is not deportable.
The basic argument is expressed by counsel in his brief in the
following terms:
* * * Justice Frankfurter, speaking for the majority, bottoms
the court's decision on Galvan's extensive Party activity which
"does not show a relationship to the Party so nominal as not to
make him a member within the terms of the Act.' Emphasis supplied
by counsel.
We have pointed out that the two issues in Galvan pertinent to this
discussion were: (1) did the evidence establish membership, (2) was
awareness of the illegal aims of the Communist Party a material element.
Counsel's argument is based upon an unjustified combination of the fact
of activity considered on the first issue and an unrelated fact
considered by the court on the second issue. This conclusion becomes
clear from an examination in its proper context of the language counsel
relies upon.
The court said (347 U.S. at pp. 528-9):
* * * The two points on which he Galvan bases his defense
against the deportation order are, first, that he did not join the
Party at all, and that if he did join, he was unaware of the
Party's true purpose and program. The evidence which must have
been believed and relied upon for the hearing officer's finding
that petitioner was a "member' is that petitioner was asked to
join the Party by a man he assumed to be an organizer, that he
attended a number of meetings and that he did not apply for
citizenship because he feared his Party membership would become
known to the authorities. In addition, on the basis of Mrs.
Meza's testimony, the hearing officer was entitled to conclude
that petitioner had been active in the Spanish Speaking Club, and,
indeed, one of its officers. Certainly there was sufficient
evidence to support a finding of membership. And even if
petitioner was unaware of the Party's advocacy of violence, as he
attempted to prove, the record does not show a relationship to the
Party so nominal as not to make him a "member' within the terms of
the Act. This brings us to petitioner's constitutional attack * *
*. Emphasis added.
It is clear from this language that the court was discussing two
issues: (1) did the alien join, and (2) if he did, what effect would
"innocence' have.
The court did not say that an active member is not a nominal member.
The reference to activity was not made in the discussion on the question
whether the alien should be deported by reason of his joining, but on
the issue -- was the finding that there had been a joining proper.
The court referred to activity as one of the factors to be considered
in determining whether or not Galvan had joined the Communist Party.
Activity, attendance at meetings, concealment of the association from
Government officials, these were all matters of evidence from which the
issue of fact -- did the alien join the Communist Party -- had to be
resolved. Using this evidence the administrative officials had
determined that Galvan had joined the Communist Party. The court held
that this was not improper. This issue having been settled, it having
been established that Galvan had joined the Communist Party, the court
went on to consider a new issue -- the one concerning awareness of the
illegal purposes of the Party. The court determined the two issues
without relating one to the other. When the court concluded that the
evidence was sufficient to support a finding of membership, the court's
concern with activity, attendance at meeting, and concealment of
association with the organization, was over. The court went on to the
second issue; the discussion was brief because that issue had been
fully considered in an analysis preceding the one we have quoted. It is
as much error to join the fact that Galvan was active and the conclusion
that he was not a nominal member, as it could have been to select other
evidence outlined by the court on the issue of joining, such as
concealment of membership, and join it to the statement that Galvan was
therefore not a nominal member.
Furthermore, the court had previously clearly indicated what it
considered nominal membership and we have no reason to believe that it
was introduced in a new light in the brief sentence quoted by counsel.
The word "nominal' is not found in the laws under discussion. It occurs
in congressional debates referred to in the Supreme Court opinion to
characterize the type of membership which should not be used to deport
aliens and was used by Mr. Justice Frankfurter to describe four types of
membership that should not subject an alien to deportation. These are
aliens
(a) who joined while children,
(b) who were joined by operation of law,
(c) who joined to obtain the necessities of life,
(d) who are accidentally, artificially or unconsciously in
appearance only members.
The classes of nominal members we have designated, (a) to (c),
inclusive, were expressly exempted by law from deportation. The court
said that these classes were not to be considered exclusive since
congressional debate showed that the group we have listed under (d)
should be exempted although the law itself does not say so. Thus, while
conceivably there may be other groups whose joining would not be
considered membership for the purposes of the immigration act, the four
classes outlined were the only ones particularized by the court and
referred to as "nominal.' It is to be noted that the court did not
express the opinion that a person who joined knowingly and willingly is
to be considered nominal because he is an inactive member. Moreover.
since the court was not concerned with an inactive member, any
expression concerning the excusable nature of inactive membership would
have been dicta.
One final comment on the argument that an inactive member of the
Communist Party is not deportable. In Galvan, the court stated that
Congress wanted the word "member' as used in the 1950 act (in substance
incorporated in the Immigration and Nationality Act), to be defined in
accordance with the usage given to it by judicial and administrative
authorities prior to the passage of the 1950 act (347 U.S. at pp.
527-8). It is thus revealing to consider the case of Harisiades v.
Shaughnessy, 342 U.S. 580, where deportation of three aliens charged
with past membership in the Communist Party was sought. They were,
Harisiades, an organizer and officer of the Communist Party and editor
of one of its foreign language newspapers; Mascitti, designated merely
as a member; and Coleman, of whom the court said, she "held no office
and her activities were not significant.' Each was ordered deported by
reason of the membership and the opinion did not differentiate between
the one who had been an active member and the others who had been rank
and file members. Harisiades was declaratory of the law as it existed
prior to the Internal Security Act of 1950. The case of Latva v.
Nicolls, 106 F.Supp. 658, reveals that "activity' is not the point on
which the court would turn in considering what was membership under the
Internal Security Act of 1950. Latva had joined the Communist Party.
He paid $.50 upon joining and $.10 a month for about four months. He
was not an officer. The local Communist Party branch never functioned
and it does not appear that Latva ever attended a Communist Party
meeting. He never asked anyone to join the Communist Party. It is
difficult to conceive participation at a more minimum level. His
deportation was ordered. (See also, Sigurdson v. Landon, 215 F.(2d)
791, C.A. 9.)
Counsel, however, does not rely solely upon Galvan in support of his
argument that an inactive member is not deportable. He also relies upon
the administrative and judicial history of the Garcia deportation
proceedings (Matter of Garcia, A-3852720). We believe the significance
he draws from Garcia is unwarranted.
Garcia, a native and citizen of Mexico, had been lawfully admitted
for permanent resident to the United States in 1922 and except for short
visits to Mexico, the last in 1949, thereafter resided in the United
States. In 1952, Garcia was charged with being subject to deportation
under the Act of October 16, 1918, as amended, because he had been a
member of the Communist Party of the United States prior to his last
entry in 1949. After a deportation hearing, he was found to have
"voluntarily become a member of the Communist Party of the United States
at Los Angeles, California, about or during 1939 and maintained that
membership continuously for a period of approximately two years
thereafter.' Appeal was taken to this Board; the appeal was dismissed.
Garcia's petition for a writ of habeas corpus was denied by the District
Court and the dismissal was affirmed on appeal to the Circuit Court (207
F.(2d) 693, C.A. 9). Petition for certiorari was filed with the Supreme
Court at a time when the Galvan case was being considered by that court.
Garcia's petition was granted after the decision in Galvan (347 U.S.
1011).
The Supreme Court never decided Garcia upon the merits. After
certiorari was granted, the Service filed a motion with this Board
requesting that the outstanding order and warrant of deportation in
Garcia be withdrawn and the proceedings reopened. We granted the
motion. After the entry of our order, the Solicitor General of the
Department of Justice submitted a memorandum to the Supreme Court
suggesting that the cause was moot because the order of deportation had
been withdrawn and Garcia could no longer be held in custody thereunder.
The Supreme Court entered an order dismissing the Garcia case as moot
(No. 118, 23 L.W. 3124).
Counsel hazards the belief that in granting certiorari, even though
Galvan had been decided and on the petition for certiorari the
Government had argued that the issues in Galvan and Garcia were
identical, the Supreme Court may have seen in Garcia an inactive
individual who was therefore a nominal member. We do not believe this
reasoning is sound. The Supreme Court did not state any reason for
granting certiorari. It never expressed itself on the merits of the
case. Therefore, any statement as to the reason why certiorari was
granted is idle speculation. To infer that the granting of certiorari
was because Garcia was an inactive member would be baseless conjecture
since we have shown that Galvan does not use the test of activity to
determine the nature of membership, but merely to determine whether or
not the alien had joined an organization he denied belonging to.
Moreover, Garcia's petition for certiorari does not mention inactive
membership. It outlines the acts he performed in connection with the
organization, but does so only to lessen the value of Garcia's admission
of Communist Party membership by showing his lack of understanding of
the meaning of the term "member.' Garcia's petition for certiorari
emphasizes not inactive membership, but the fact that Garcia was
illiterate, was lacking in understanding, and joined "solely for food.'
Counsel argues that the Service and this Board indicated their belief
that Galvan declared an inactive member to be not deportable because we
reopened proceedings in Garcia after Galvan was decided. As to the
purpose of this Board in reopening proceedings, we can speak with
certainty. We reopened to give Garcia, who had not opposed the Service
motion, an opportunity to produce additional evidence on the question of
the voluntary nature of his membership and to apply for discretionary
relief, a relief that had not been available to him at the time of
hearing, but which subsequent legislation did make available. We were
not guided by the belief that inactivity excuses a Communist Party
member from deportation. To read more into our order there, is error.
The final argument for consideration is that Galvan requires that the
alien must join, cognizant of the fact that the Communist Party
"operates as a distinct and active political organization.' We believe
that by the language quoted, the court meant only that the organization
must be one which operated openly as the Communist Party and that the
alien knew that the organization was the Communist Party. The court
clearly indicated the alien need not know the type of organization it
is, as long as he knows it is the Communist Party (see also, Sigurdson
v. Landon, supra). Deportation was properly found.
We have to this point, solely for the sake of argument, assumed that
A was an inactive member. There is, however, a lack of evidence
establishing this claim. The issue at the hearing was not the degree of
participation, but merely whether a voluntary joining of the Communist
Party had been established. A was silent on whether he was a member.
No affirmative evidence was introduced to show that membership was
"inactive.' Furthermore, it must be noted that neither R nor K testified
that they belonged to respondent's unit, and that respondent belonged to
a unit from what is apparently an outlying area. R 's testimony that
respondent was considered by high Party leaders to be capable of being
entrusted with the job of recruiting young people into a Communist Party
youth organization would indicate that A had conducted himself in
Communist Party work in such a way as to create confidence in his
ability to do additional Communist Party work. Finally, we do not
believe attendance at meetings should be considered as "inactivity.'
Counsel argues that the respondent is eligible for voluntary
departure. The special inquiry officer has stated fully the reason for
which he found the alien ineligible for voluntary departure, i.e., the
respondent's failure to have a continuous period of residence in the
United States for ten years preceding his application for voluntary
departure. His decision is based upon precedents established by this
Board. While it is unfortunate that a short absence from the United
States should cause an alien to lose his eligibility for suspension of
deportation, our conclusion is based upon the law as it is now written.
We have no jurisdiction to adjudicate constitutional objections. A
letter from counsel requests that we postpone decision in this case
until Garcia is finally determined. The issue in each of the cases is
factual. One is not dependent upon the other. There is no reason to
delay decision here. The appeal will be dismissed.
Order: It is ordered that the appeal be and the same is hereby
dismissed.
Marriage -- Japan -- Necessity of registration.
A religious marriage ceremony in Japan is without legal effect in
that country. Under the laws of Japan a marriage is entered into in
that country only by the delivery to and acceptance by the Registrar of
a notification made by the parties and two witnesses, which notification
may be oral or in writing.
Discussion: The petition comes forward on appeal from the order of
the District Director, Detroit, Michigan, dated August 25, 1954, denying
the visa petition on the ground that the marriage is not considered
legal for immigration purposes for the reason that no documentary
evidence has been presented to establish that the marriage was
registered in accordance with the Japanese Civil Code.
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. He has submitted a certificate of marriage issued by an ordained
minister indicating that the parties were married on December 28, 1953,
at Amanuma, Tokyo, Japan. In connection with the appeal the petitioner
has indicated that at the time he decided to get married he had only two
months left in Japan whereas it took four months to obtain approval of
the marriage from the Air Force and that due to lack of time it was
impossible for him to register his marriage with the Japanese
Government.
In order to determine whether the religious marriage constituted a
valid marriage in the absence of registration under Japanese law,
inquiry was directed to the Department of State which in turn
communicated with the American Embassy at Tokyo, Japan. The following
is a summary of the information supplied by the Embassy:
Article 739 of the Japanese Civil Code provides:
A marriage becomes effective by notification thereof in
accordance with the provisions of the Family Registration Law.
The notification mentioned must be made by both the parties and
two or more witnesses of full age either orally, or by a document
signed by them.
As enforced, the act of notification consists of acceptance by
the Registrar, a government official having custody of official
family records, of application by both parties for insertion in
the family register of the fact of marriage.
Legally, this constitutes the total act of marriage. Although
persons planning marriage in Japan may wish to participate in some
form of ceremony, this would not be part of the legal process of
marriage. A ceremony is neither a prerequisite to nor part of the
notification process. The date of marriage is the date on which
the entry is made in the Family Register. Where only a ceremony
has taken place, and if either party or both decide to end the
marital relationship, no divorce or other legal process is
required.
Notification under Article 739 is not an act of validation, but
marriage itself. Therefore, for the marriage in question to be
legal, notification under Article 739 would have to take place,
regardless of the religious ceremony held in Tokyo in December
1953. As stated in the second paragraph of Article 739,
notification must be by both parties, but may be made either
orally or by a document signed by them. The document, if the
marriage is absentee, contains identifying data and a statement
that there is no bar to the declarant's marriage. Article 13 of
the Japanese Civil Code provides in part: "as regards the form of
marriage , the law of the place of celebration of the marriage
governs.' However, since there has been no marriage under Japanese
law in satisfaction of Article 13, Article 14, which provides that
the effect of a marriage is determined by the law of the home
country of the husband, can have no force inasmuch as the term
"effect of a marriage' relates to acts subsequent to marriage,
such as divorce, inheritance, legitimation, etc.
Under the law and facts involved in the instant situation, it appears
that a valid marriage has not been achieved under the law of Japan, the
place of the celebration of the marriage. Accordingly, the petitioner
and the beneficiary cannot be regarded as legally married so as to
confer nonquota status upon the beneficiary. At the present time it
becomes necessary to deny the visa petition. Should the parties adjust
their marital status by a proper registration of their marriage in
accordance with Japanese law a new visa petition may then be filed.
Order: It is ordered that the appeal be and the same is hereby
dismissed.
Fine -- Section 256 of Immigration and Nationality Act -- Liability of agent for master's action.
Under section 256 of the Immigration and Nationality Act, the agent
of a transportation line is liable for payment of fine when the master
of the vessel, without first obtaining the consent of the Attorney
General, effects his own discharge by turning the command of the vessel
over to another even though the agent had nothing to do with replacement
of the master. (See also, 5, I. & N. Dec. 567 and 663.)
Discussion: This matter is before us on appeal from a decision dated
February 2, 1954, of the District Director at Miami imposing a $1,000
fine, mitigated to the extent of $500, for paying off and discharging an
alien crewman without permission of the Service in violation of section
256 of the Immigration and Nationality Act.
The vessel involved in this proceeding (SS. KAMMA DAN) arrived at New
Orleans on October 23, 1953, and departed from that port for the Canal
Zone on November 6, 1953. On November 16, 1953, a notice of intention
to fine was served on West Coast Line, Inc., as agents for the owner of
the vessel, which notice indicates that the violation related to one M O
who had been paid off and discharged without permission of the Service.
O made a sworn statement before an American consular officer in
Denmark to the effect that he was in command of the SS. KAMMA DAN when
it arrived at New Orleans; that he expected to be relieved by the
regular commander of the vessel whom he had temporarily replaced; that
upon making inquiry of the immigration officer relative to obtaining a
D-2 landing permit, it was suggested that the matter of securing such a
permit be deferred until the officer who was to relieve him appeared;
and that subsequently, because of the pressure of work, he overlooked
having his D-1 permit changed to a D-2 permit until November 12, 1953
(after his arrival in New York City) when he informed the owner's agent
there, who in turn notified the Service. The report of the master
concerning changes in crew (Form I -- 489) shows M O as having been
discharged. He departed from the United States on November 17, 1953.
W M A , an officer of West Coast Line, Inc., made an affidavit that
his company had nothing to do with the replacement of M O ; that the
latter received his instructions from the owners of the vessel; and
that West Coast Line, Inc., did not arrange for a replacement nor have
anything to do with determining when or where M O would leave the
vessel. It was also asserted in the affidavit that West Coast Line,
Inc., did not discharge nor pay off M O and that the funds which had
been placed with him were for the account of the owners and that no
funds were earmarked for the payment of M O 's account with the owner
for his services aboard the vessel.
We have carefully considered the points urged by counsel in his brief
on appeal. One contention is that section 256 of the Immigration and
Nationality Act permits the imposition of fine only upon the person or
persons who paid off or discharged a nonresident alien crewman without
permission, and a fine cannot, therefore, be imposed upon the agent here
since the agent did not participate in the matter in any way. Counsel
is aware that we have previously ruled against that contention /1/ but
he asks us to reconsider our position concerning the matter. Section
256 of the Immigration and Nationality Act provides, in part, as
follows:
Sec. 256. It shall be unlawful for any person, including the
owner, agent, consignee, charterer, master, or commanding officer
of any vessel or aircraft, to pay off or discharge any alien
crewman, except an alien lawfully admitted for permanent
residence, * * * without first having obtained the consent of the
Attorney General. If it shall appear to the satisfaction of the
Attorney General that any alien crewman has been paid off or
discharged in the United States in violation of the provisions of
this section, such owner, agent, consignee, charterer, master,
commanding officer, or other person, shall pay to the collector of
customs of the customs district in which the violation occurred
the sum of $1,000 for each such violation. No vessel or aircraft
shall be granted clearance pending the determination of the
question of the liability to the payment of such sums, or while
such sums remain unpaid, except * * *.
Counsel argues that the phrase "such * * * other person' in the
second sentence must refer only to a person who actually paid off the
alien crewman and that, therefore, "such * * * agent' must also be
limited to an agent who has done so. We do not think that such a result
follows. The second sentence repeats the same persons specifically
named in the first sentence and we believe the addition in the second
sentence of "other person' was merely because the words "any person' in
the first sentence could include others than those specifically named.
In other words, the classes of persons specifically enumerated in the
first sentence were not supposed to be all-inclusive.
If Congress had intended that only the person who actually paid off
or discharged the seaman was to be liable for the fine, much of the
second sentence was unnecessary and it could have been simply stated as
"Any person who violates the provisions of this section shall pay to the
collector of customs * * *.' It is our considered opinion that the
second sentence does not contemplate that the Attorney General shall
reach a determination as to who was responsible for the discharge of the
alien crewman but rather that it shows clearly a congressional intention
that as soon as it has been established that an alien crewman was paid
off or discharged without permission, a fine has been incurred; that
the persons named, as well as any other person involved, are equally
liable; and that the fine may be imposed against any of them. We
believe this is further borne out by the provision that clearance is to
be denied to the vessel pending the determination of the question of
liability for the fine and the payment of such fine. We adhere,
therefore, to our former determination of this question.
The remaining contention of counsel is that no fine should be imposed
because of the extenuating circumstances. We agree that there are
extenuating circumstances in this case. However, the statute does not
permit any exception to be made for that reason but places a duty to
impose a fine where there has been a violation. There is no authority
to remit or reduce a fine except where Congress has specifically granted
that power. /2/ In addition, although there are appealing factors in
this case, they are not more so than in other cases in which we have
found it necessary to sustain the imposition of fine. /3/ These
extenuating matters may be considered only in connection with the
question of the mitigation of the fine, and the amount of the penalty in
the instant case has already been mitigated to the extent permitted by
the statute. Accordingly, we have no alternative but to dismiss the
appeal.
Order: It is ordered that the appeal be and the same is hereby
dismissed.
(1) Matter of SS. REPUBLIC, F-0612-423, 5, I. & N. Dec. 663 (decided
February 1, 1954).
(2) 25 Opinions Attorney General 336 (1905).
(3) Matter of SS. CIUDAD DE BARQUISIMETO, F-0300-5538, Int. Dec. No.
639 (decided September 10, 1954); Matter of SS. CAPTAIN K. PAPZOGLOU,
F-0500-387, 5, I. & N. Dec. 567 (decided December 18, 1953).
Petty offenses -- Section 4, Act of September 3, 1954 -- Classification of offenses committed outside of United States.
(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, United States standards are applied; hence, recourse is had to the equivalent offense under United States law: Title 18 of the United States Code or, if the equivalent offense is not found therein, Title 22 of the District of Columbia Code.
(2) 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 under section 4 of the Act of September 3, 1954, the definitions in 18 U.S.C. 1 are to be applied.
(3) Where an alien was convicted in Canada in 1927 of stealing $32.60
in violation of section 386 of the Canadian Criminal Code, which
provides a punishment of not more than seven years' imprisonment, but
was given a suspended sentence, the offense may be classified as a
misdemeanor under section 4 of the Act of September 3, 1954, because
such offense if committed in the District of Columbia would have
constituted petty larceny under section 22-2201 of the District of
Columbia Code (there being no comparable offense in Title 18 of the
United States Code) and been punishable by a fine of not more than $200
or imprisonment for not more than one year, or both.
Discussion: The applicant, a 47-year-old single male, is an alien, a
native of Yugoslavia and a resident and citizen of Canada, who arrived
at the port of Blaine, Washington, February 3, 1955, by auto and applied
for admission to visit for pleasure for 29 days. He was accorded
hearing at Blaine, Washington, on February 3, 1955, and was represented
by counsel during such hearing.
The record reflects that the applicant was accorded a hearing and
excluded from the United States at Blaine, Washington, on February 2,
1954, on the ground of having been convicted of a crime involving moral
turpitude, to wit: theft, at Vancouver, B. C., June 1, 1927.
The facts of the applicant's case were set forth in decision entered
at the time of such exclusion, February 2, 1954, and need not be
repeated here. The record clearly reflects that the applicant has been
convicted of only one criminal offense. The sole question for
determination is whether the applicant does or does not fall within the
exception from exclusion provisions of section 4, Act of September 3,
1954 (P. L. 770, 83d Congress), a statute enacted subsequent to the
applicant's previous hearing.
The application of section 4, Act of September 3, 1954, apparently
presents two methods of approach, i.e.:
Method A. Fitting the facts of a foreign offense into the
provisions of some United States statute (city, State, or
Federal), presumably some statute prevailing at the time of the
foreign offense, and thereafter determining from the penal
provisions of the United States statute, and from the punishment
actually imposed by the foreign court, whether the foreign offense
would, if committed in the United States, be classified as a
felony, misdemeanor or petty offense as defined by section 1,
Title 18, U.S.C., or
Method B. Testing the penal provisions of the applicable
foreign statute against the definitions of felony, misdemeanor and
petty offense contained in section 1, Title 18, U.S.C.
It is apparent from the record that the applicant was convicted under
section 386, Criminal Code of Canada, which provides a liability to
imprisonment of seven years upon conviction. Upon application of Method
B above to the applicant's offense, it is seen that any offense under
section 386, Criminal Code of Canada, is classifiable as a felony under
section 1, Title 18, U.S.C.
However, upon application of Method A above, it is discovered that
this offense is classifiable as a petty offense for the reason that the
value involved in this offense (theft of money amounting to $32.60) is
"less than $35,' the valuation specified in Petit Larceny, section
22-2201, Title 22 of the Code of District of Columbia, in effect at the
time of such offense. The court record of his conviction clearly shows
that the applicant was "allowed to go on suspended sentence' and hence
no actual imprisonment was imposed in his case. Accordingly, if the
applicant had committed this offense in the District of Columbia, such
offense would, under section 1, Title 18, U.S.C., be classified as a
petty offense.
No regulations appear to have been issued by the Attorney General
with regard to the application of section 4, Act of September 3, 1954,
or if issued, have not as yet been received at Blaine, Washington.
However, the State Department issued regulations in the Federal Register
on October 21, 1954, as Part 42.42(a)(9)(i) of Title 22, Code of Federal
Regulations, which regulations in part read as follows:
An alien shall not be ineligible to receive a visa under the
provisions of section 212(a)(9) of the act (a) solely by reason of
the conviction of a single offense which, if committed in the
United States * * *. (Emphasis supplied.)
The only available precedent decision involving section 4, Act of
September 3, 1954, is the Matter of C , E-092142 Interim Decision No.
635 (B.I.A., October 8, 1954), which concerned an offense committed in
the United States; however, the following language contained therein is
believed to be pertinent to the instant case:
* * * specified that the benefits of the statute are intended
for those who can meet two requirements or standards, namely, the
crime must be an offense which if committed in the United States
would be a misdemeanor * * *. (Emphasis supplied.)
It is conceivable that a foreign criminal statute could affix a very
light penal provision which upon application of Method B above would be
classified as a misdemeanor or petty offense, whereas upon application
of Method A above, it would be found that the same offense is
classifiable as a felony. For instance, in some foreign state the crime
of arson might affix a penalty of not over one year imprisonment. Under
Method B above, it would be necessary to classify the offense as a
misdemeanor, whereas under Method A, the offense would be classified as
a felony, District of Columbia Criminal Code, and section 1, Title 18,
U.S.C. The difficulty and conceivable inequities of applying Method B
to the criminal statutes of various and sundry foreign states, with
attendant variation of penal provisions of such foreign statutes, is
believed to be self-evident.
The instant case presents an example of the reverse of the foregoing
proposition in that the penal provisions of the foreign statute are such
that under Method B, his offense must be classified as a felony, whereas
if he had committed the same offense and received the same suspended
sentence in the District of Columbia, his offense would be classified as
a petty offense.
While not herein pertinent, it is known that American consuls are
following Method A above, in the issuance of visas to aliens destined to
the United States, and are utilizing the Criminal Code of the District
of Columbia, as the United States statute into which the facts of the
foreign offense are fitted in order to determine the classification
under section 1, Title 18, U.S.C., of the alien's foreign offense.
Accordingly, in view of all the foregoing, it is believed that the
application of section 4, Act of September 3, 1954, requires the sole
and exclusive use of Method A above. It is, therefore, believed that
the applicant's case falls within the exception from exclusion contained
in section 4, Act of September 3, 1954.
Findings of Fact:
On the basis of the testimony and evidence presented, it is found:
(1) That the applicant is an alien, a native of Yugoslavia, and
citizen and resident of Canada, age 47 years;
(2) That the applicant is applying for admission to visit for
pleasure for a period of 29 days;
(3) That the applicant has been convicted of only one criminal
offense which occurred at Vancouver, B. C., Canada, on June 1,
1927, on a charge of theft of money amounting to $32.60, for which
offense he was allowed to go on suspended sentence.
Conclusions of Law:
On the basis of the foregoing Findings of Facts, it is concluded:
(1) That under the provisions of section 1, Title 18, U.S.C.,
and section 22-2201, Petit Larceny, Title 22 of the District of
Columbia Code, in effect in 1927, the applicant's offense, if
committed in the United States, would be classified as a petty
offense;
(2) That under the provisions of section 4, Act of September 3,
1954, the applicant is exempt from exclusion under section
212(a)(9) of the Immigration and Nationality Act;
(3) That under the provisions of section 212.3(a)(1), Title 8,
C.F.R., the applicant is not required to present a passport or
visa.
Order: It is ordered that the applicant be admitted to the United
States as a visitor for pleasure for a period of 29 days in accordance
with the provisions of Part 236.13(d) of Title 8, Code of Federal
Regulations.
Discussion: On February 3, 1955, the special inquiry officer
directed the applicant's admission as a temporary visitor and an appeal
from that decision was thereafter filed by the Acting Officer in Charge
at Blaine, Washington. The case is now before us for decision.
The applicant is a 47-year-old male, native of Yugoslavia and citizen
of Canada. The question of whether or not he is admissible to the
United States arises from his conviction on June 1, 1927, before a
Police Magistrate at Vancouver, B.C., Canada, on the charge of stealing
the sum of $32.60 from another person. A suspended sentence was
imposed. While the record of conviction does not designate the
particular section of the Canadian Criminal Code which was violated, we
agree with the special inquiry officer that the conviction was under
section 386 which provides a punishment of not more than seven years'
imprisonment for thefts other than those specifically provided for
elsewhere in the code. The applicant has no other criminal record.
The special inquiry officer held that, under the circumstances of
this case, the offense of theft involved moral turpitude and in this we
concur. However, we do not agree that the crime may be classified as a
petty offense and that the applicant may be admitted by virtue of the
provisions of section 4 of the Act of September 3, 1954 (68 stat.
1145). That statutory provision is as follows:
Sec. 4. Any alien who is excludable because of the conviction
of a misdemeanor classifiable as a petty offense under the
provisions of section 1(3) of Title 18, United States Code, by
reason of the punishment actually imposed, or who is excludable as
one who admits the commission of such misdemeanor, may hereafter
he be granted a visa and admitted to the United States, if
otherwise admissible: Provided, That the alien has committed only
one such offense.
18 U.S.C. 1 (62 Stat. 684), referred to in the above-quoted
enactment, is entitled "Offenses classified' and is as follows:
Notwithstanding any Act of Congress to the contrary:
(1) Any offense punishable by death or a term exceeding one
year is a felony.
(2) Any other offense is a misdemeanor.
(3) 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.
The special inquiry officer concluded that the possible applicability
of section 4 of the Act of September 3, 1954, should be decided by
examining the same United States crime (either a State or Federal crime)
and determining how the United States crime would be classified under 18
U.S.C. 1. In holding that the applicant's conviction in 1927 was for a
petty offense, the special inquiry officer resorted to section 22-2201
of the District of Columbia Code which, in 1927, provided that petit
larceny (larceny of property worth less than $35) was punishable by a
fine of not more than $200 or imprisonment for not more than one year,
or both. We hold that, using the standards specified in 18 U.S.C. 1,
the penalty, prescribed by the laws of the jurisdiction in which the
conviction actually occurred, is the determinative factor.
Preliminarily, we might point out certain inherent difficulties or
deficiencies in the procedure suggested by the special inquiry officer.
First, although the District of Columbia Code consists of laws enacted
by Congress, these laws are applicable only to the District of Columbia.
They are not the Federal criminal laws, these being contained in Title
18 of the United States Code. We can see no greater reason for relying
on the District of Columbia Code than on the laws of any one of the 48
States. This is particularly true since we have already held that, if
the offense is committed in the United States, we will look to the
maximum punishment prescribed for the crime by the law of the State in
which the conviction occurred. /1/ It logically follows that, where the
offense was committed in a foreign country, the governing factor in
determining whether the offense is a felony or a misdemeanor is the
punishment prescribed for the crime by the laws of the foreign country.
Secondly, the offense of theft in Canada includes offenses which
would not be so characterized in our law. /2/ In addition, the
difficulty of making a determination on the basis of the District of
Columbia Code is illustrated by the fact that the offense committed by
the applicant could conceivably also constitute a felony, punishable by
imprisonment for a maximum of fifteen years. /3/
The special inquiry officer indicated that he was led to his
conclusion by a regulation of the Department of State and by certain
language in Matter of C , (supra), (footnote 1). The State Department
regulation /4/ is, in pertinent part, as follows:
An alien shall not be ineligible to receive a visa under the
provisions of section 212(a)(9) of the act (a) solely by reason of
the conviction of a single offense which, if committed in the
United States, would be a misdemeanor punishable by imprisonment
not to exceed one year, and for which the penalty actually imposed
was imprisonment not to exceed six months or a fine not to exceed
$500, or both; or * * *.
The language appearing in Matter of C , (supra), referred to by the
special inquiry officer, was almost an exact quotation of a statement in
Representative Walter's letter of August 20, 1954, to former Senator
McCarran which was read into the Congressional Record of the Senate /5/
during the discussion of the bill which became the Act of September 3,
1954. The pertinent part of the letter is as follows:
* * * my amendment * * * is intended to require the meeting of
two standards, namely, the offense must be an offense which is
(if) committed in the United States would be a misdemeanor (not
punishable by imprisonment for one year or more), and, second, the
offense must be one for which the actual penalty imposed in the
particular case was imprisonment not to exceed six months or a
fine not to exceed $500, or both. * * *
It is apparent that the phrase "if committed in the United States'
appearing in the State Department regulation quoted above, had its
genesis in Representative Walter's letter to Senator McCarran. However,
when Representative Walter discussed his amendment in the House of
Representatives on the same day, /6/ he did not speak of a crime which
would be a misdemeanor if committed in the United States, but the
pertinent part of his statement is as follows:
The purpose of my amendment is to modify, or rather clarify,
the purport of paragraph (9), subsection (a) of section 212 of the
Immigration and Nationality Act, so as to bring it in conformity
with section 1 of Title 18, United States Code, as enacted into
positive law on June 25, 1948. In other words, I want to make
certain that section 212(a)(9) of the Immigration and Nationality
Act will be administered in accordance with American legal
standards as set out in Title 18 of United States Code, which
classifies offenses and draws a very clear line between a felony,
a misdemeanor, and a minor offense.
The crucial phrase in the statute is "because of the conviction of a
misdemeanor classifiable as a petty offense under the provisions of
section 1(3) of Title 18, United States Code, by reason of the
punishment actually imposed * * *.' Consequently, in these cases, two
questions must be determined, namely (1) whether the offense is a
misdemeanor and (2) whether it is a petty offense. As to the later, the
statute directs that the matter be determined in accordance with 18
U.S.C. 1(3) and based on the punishment actually imposed. Hence, the
determination of whether the punishment imposed did not exceed
imprisonment of six months or a fine of not more than $500 or both can
be readily determined by consulting the foreign record. It is only the
question of whether the offense is a felony or a misdemeanor which
presents any problem.
We do not believe that the chance use of the words "if committed in
the United States' should form the basis for completely disregarding the
punishment fixed by the laws of the foreign jurisdiction for the precise
crime of which the person was convicted, nor should it constitute a
reason for arbitrarily adopting the punishment fixed by some other
statute in the United States (state or Federal). In addition, the
procedure suggested by the special inquiry officer could not be
rationalized, under any circumstances, unless the foreign crime and the
United States crime were identical. Yet the crime of the theft in
Canada, for which the applicant was convicted, is basically dissimilar
from the crime of theft in the United States, the latter involving moral
turpitude while the former may or may not. /7/
We can perceive no logical basis for employing a legal fiction that a
man was convicted in the United States of a crime which was committed in
Canada and of which he was convicted in that country. Furthermore, to
speak of an offense committed in the United States lacks specificity
because a crime which is a misdemeanor in one State may be a felony in
another and vice versa.
We think that the phrase in Representative Walter's letter reading,
"if committed in the United States,' when considered with the
parenthetical statement immediately appended, has only the meaning which
would be conveyed if the full statement were paraphrased to read, "The
offense must be an offense which would be a misdemeanor under 18 U.S.C.
1 because punishable by imprisonment not exceeding one year.' It is our
opinion that the statement in Representative Walter's letter was merely
another way of expressing what he had said earlier that day in the House
of Representatives relative to applying the standards in 18 U.S.C. 1,
and that all that was intended was that that statutory provision was to
be the yardstick for measuring whether a particular crime was a felony,
a misdemeanor or a petty offense.
We have indicated above why we do not believe that this isolated
phrase in the remarks of Representative Walter should be seized upon as
a basis for disregarding the punishment prescribed by the laws of the
foreign country. In any event, we believe that the language of the
statute is plain and that there can be no justification for an attempt
to add to it words importing the fiction that a crime committed in a
foreign country was actually committed in the United States. In
Caminetti v. United States, 242 U.S. 470, 485 (1917), it was said:
"Where the language is plain and admits of no more than one meaning the
duty of interpretation does not arise and the rules which are to aid
doubtful meanings need no discussion.' In that case, although the words
of the statute were plain, it was contended that the court should
construe the act as applying only to the transportation of women for
pecuniary gain because section 8 of the act provided that it should be
known as the White-Slave Traffic Act, and the report accompanying the
introduction of the legislation in the House of Representatives set
forth that the legislation was needed to put a stop to the interstate
and international traffic in women and girls. The court rejected this
contention and said (p. 490):
Reports to Congress accompanying the introduction of proposed
laws may aid the courts in reaching the true meaning of the
legislature in cases of doubtful interpretation, Blake v.
National Banks, 23 Wall. 307, 319; Bate Refrigerating Co. v.
Sulzberger, 157 U.S. 1, 42; Chesapeake and Potomac Telephone Co.
v. Manning, 186 U.S. 238, 246; Binns v. United States, 194 U.S.
486, 495. But, as we have already said, and it has been so often
affirmed as to become a recognized rule, when words are free from
doubt they must be taken as the final expression of the
legislative intent, and are not to be added to or subtracted from
by considerations drawn from titles or designating names or
reports accompanying their introduction, or from any extraneous
source. In other words, the language being plain and not leading
to absurd or wholly impracticable consequences, it is the sole
evidence of the ultimate legislative intent.
For the reasons stated above, we hold that the determination of
whether a foreign crime is a felony or misdemeanor must be made by
looking to the punishment prescribed by the law of that country for the
particular crime and using the standard set forth in 18 U.S.C. 1. In
other words, if a foreign offense is punishable by death or imprisonment
for a term exceeding one year, it is a felony and otherwise it is a
misdemeanor. If the offense is a misdemeanor and the punishment
actually imposed does not exceed that mentioned in 18 U.S.C. 1(3), the
crime is a petty offense. Applying these principles to the applicant's
case, we must hold that the offense of theft in Canada, being punishable
by imprisonment for not more than seven years, is a felony and the Act
of September 3, 1954, has no application. Accordingly, the appeal of
the acting officer in charge will be sustained.
Order: It is ordered that the appeal of the acting officer in charge
be sustained and that the applicant be excluded from the United States
under section 212(a)(9) of the Immigration and Nationality Act on the
ground that he has been convicted of a crime involving moral turpitude,
to wit: theft.
(1) Matter of C , E-092142, Int. Dec. No. 635, decided October 8,
1954; Matter of H , A-6060587, Int. Dec. No. 658, decided December 9,
1954.
(2) Matter of T , 56156/249, 2, I. & N. Dec. 22, 42, A.G., February
24, 1944.
(3) In the District of Columbia, under section 22-2901 of the Code,
robbery includes a taking "by sudden or stealthy seizure or snatching.'
(4) 22 C.F.R. 42.42(a)(9)(i) effective October 21, 1954 (19 F.R.
6785).
(5) Congressional Record of August 20, 1954 (unbound p. 14609).
(6) Congressional Record of August 20, 1954 (unbound p. 14506).
(7) Matter of T , footnote 2 (supra).
By memorandum of the Board of Immigration Appeals dated May 31, 1955,
the above-captioned case was certified to the Attorney General for
review pursuant to section 6.1(h)(1)(iii), Title 8, Code of Federal
Regulations.
The decision of the Board is reversed. The available legislative
history supports the view that section 4 of the "Sheepherder's Act'
(Public Law 770, 83d Congress) renders an alien admissible who would be
otherwise excludable because of the conviction of one misdemeanor which
is classificable as a petty offense, as if committed in the United
States, under the provisions of 18 U.S.C. 1(3).
It is clear from the statement of the sponsors that section 4 was
meant to liberalize procedures established by the Immigration and
Nationality Act which have resulted harshly in cases where the alien's
record contains only one petty offense and where he is not excludable
for any other reason.
Although ambiguity in the language used in section 4 leaves uncertain
whether classification of the single offense as a misdemeanor, and
therefore a petty offense under 18 U.S.C. 1(3), is to be according to
the laws of the foreign jurisdiction or the law of the United States,
there is ample evidence that the sponsors intended that United States
standards be applied and that the offense be examined in the light of a
similar offense "if committed in the United States.'
Section 4 was developed as a "floor' amendment. There are,
therefore, no committee reports from Senate or House. The sponsors
explained their interpretation to the House and Senate and no change was
suggested in the language proposed. (See excerpts from the
Congressional Record quoted in accompanying Department of State
Instruction numbered 487 and dated September 8, 1954.)
The statement of the draftsman of proposed legislation as to his
understanding of its nature and effect has been accepted in the courts
as indicative of the legislative intent where the meaning is obscure
(United States v. Coca Cola Co., 241 U.S. 265, 281-283; see United
States v. Whyel, (C.C.A. 3) 28 F.(2d) 30, and cases cited; see also
Sutherland, Statutory Construction (3d ed.), Vol. II, Section 5009).
Recommendation against deportation made by court prior to December 24, 1952 -- Effect on deportability under section 241(a)(11) of Immigration and Nationality Act.
The recommendation of a court in 1949 that the defendant not be deported on the basis of his conviction and sentence for a narcotic violation bars his deportation under section 241(a)(11) of the Immigration and Nationality Act. The effectiveness of such recommendation was preserved by section 405(a) of that act (Matter of I , 5, I. & N. Dec. 343, overruled).
CHARGES:
Warrant: Act of 1952 -- Violation of law or regulation relating to illicit traffic of narcotic drugs.
Lodged: Act of 1952 -- Convicted of violation of any law or
regulation governing or controlling the taxing of marijuana.
Discussion: This case is before us on appeal from the order of the
special inquiry officer of April 12, 1954, directing the respondent's
deportation on the charges stated above. Exceptions have been taken to
the finding of deportability.
The record relates to a native and citizen of Mexico, male, married,
54 years of age, who last entered the United States on or about May 15,
1945, as a returning resident alien. Respondent had been lawfully
admitted to the United States for permanent residence on January 11,
1945.
The respondent, on May 4, 1949, entered a plea of guilty to the
second count of an indictment returned on May 2, 1949, in the Federal
District Court at San Antonio, Texas. The count in the indictment upon
which the respondent was convicted states that in the course of a
narcotic transaction, he was a transferee. Respondent was sentenced to
serve a two-year term of imprisonment on May 10, 1949. The special
inquiry officer sustains the charge contained in the warrant of arrest
and the charge lodged during the course of the hearings on the basis of
the identified record of conviction and respondent's entry into the
United States subsequent to that conviction.
The sentencing court recommended that the respondent be not deported
for the offense which forms the basis of these proceedings. The special
inquiry officer, relying upon our decision in Matter of I , E-25308, 5,
I. & N. Dec. 343, concluded that the recommendation of the court as a
bar to deportation is confined to persons who are deportable under
section 241(a)(4) of the Immigration and Nationality Act of 1952 and not
to those who are deportable under section 241(a)(11) of the same act.
Since our decision in Matter of I , (supra), the issue of whether a
nondeportable status created by a judicial recommendation in a narcotic
case prior to the effective date of the Immigration and Nationality Act
of 1952 continues to relieve the alien from deportation under that act,
has been before the courts on two separate occasions. The United States
District Court for the Northern District of California, Southern
Division, in the case of Ex parte Robles-Rubio, /1/ held that the
savings clause of the 1952 act (section 405(a)) was of sufficient
breadth to encompass a previous recommendation against deportation and
continues to relieve the narcotic offender.
This same issue was before the Court of Appeals for the Eighth
Circuit in the case of United States ex rel. De Luca v. O'Rourke. /2/
The Circuit Court in the De Luca case (supra) reasoned that
notwithstanding the uncertainty created by the statutory provisions of
the 1952 act /3/ concerned with judicial recommendations in behalf of
aliens deportable for crimes involving moral turpitude as distinguished
from those deportable as narcotic violators, the savings clause of the
1952 act is broad enough to preserve the efficacy of the recommendation
of the sentencing judge and to prevent the deportation of the alien
because of the conviction.
Since the position we took in Matter of I , (supra), has been
overruled by judicial authority, we find that the recommendation against
deportation with which we are here concerned continues to relieve the
respondent from deportation as a narcotic violator. The appeal will be
sustained.
Counsel contends that the statute under which these proceedings have
been conducted (section 241(a)(11)) is invalid because it is
retrospective and ex post facto. Although this contention is now moot
in light of the conclusion stated above, we note that the court in both
the Robles-Rubio and the De Luca cases, (supra), affirmed our ruling in
Matter of M , A-2669541, 5, I. & N. Dec. 261, that legislation providing
for deportation of aliens is not invalid because retrospective in
operation. An appropriate order will be entered.
Order: It is ordered that the appeal be and the same is hereby
sustained; the proceedings under the warrant of arrest issued October
1, 1953, are hereby terminated.
(1) 119 F.Supp. 610 (January 21, 1954).
(2) 213 F.(2d) 759 (January 17, 1954), rehearing denied July 14,
1954.
(3) Sections 241(a)(4), 241(a)(11) and 241(b) of the Immigration and
Nationality Act of 1952.
EDITOR'S NOTE: See also Matter of W M , A-4988228, Interim Decision
No. 694.
Communist Party of the United States -- Affiliation, elements constituting, under the Immigration and Nationality Act -- Affidavits of deceased persons -- Adverse testimony of wife.
(1) Affiliation with the Communist Party from 1927 to 1930, is established pursuant to section 241(a)(6)(C) of the Immigration and Nationality Act by evidence showing that the respondent attempted to obtain subscriptions to a Communist newspaper, urged individuals to attend C.P. meetings, attempted to convince several persons of desirability of Communist rule in the United States, distributed C.P. literature, displayed a C.P. election poster during an election campaign, drove an automobile in a C.P. parade, attended a C.P. public rally wearing a C.P. button in his lapel, and carried C.P. literature in his automobile.
(2) Evidence of affiliation as set forth in the preceding paragraph is sufficient to sustain deportability under section 241(a)(6)(C) of the Immigration and Nationality Act even though the Government has not established the existence of a status of mutual recognition between the respondent and the Communist Party that he could be relied upon to cooperate with the Party on a fairly permanent basis. The "mutual recognition' rule discussed in Bridges v. Wixon, 326 U.S. 135 and Kettunen v. Reimer, 79 F.(2d) 315, is no longer applicable in view of the provisions in section 101(e)(2) of the Immigration and Nationality Act.
(3) Affidavits made by persons who are now deceased or which were made 25 years ago by persons not able to remember all of the facts are admissible as evidence in administrative proceedings.
(4) The testimony of respondent's wife is admissible in deportation proceedings notwithstanding his claim of privilege.
CHARGES:
Warrant: Act of 1952 -- An alien affiliated with the Communist Party
of the United States.
Discussion: This is an appeal from the order of the special inquiry
officer requiring J 's deportation on the ground set forth above.
Respondent is a 64-year-old male, a native and last a citizen of Poland.
He entered for legal residence in 1913 and has been a resident since.
In 1928, he was naturalized as a citizen of the United States. In 1933,
a decree was entered in a United States District Court in Missouri
cancelling the naturalization.
The special inquiry officer found that J had been affiliated with the
Communist Party in St. Louis, Missouri, from 1928 to 1930 because he had
then publicly displayed support for the Communist Party and attempted to
convince others to give moral and financial aid to the Communist Party.
Counsel contends that the order of deportation is based upon incompetent
evidence and the special inquiry officer's erroneous conception of the
meaning of the term "affiliation.' We find the charge in the warrant of
arrest is sustained.
Service in the cancellation proceeding was made upon the respondent
by publication. He made no appearance. He stated that he had no
knowledge of the proceedings brought against him. Since the decree of
the United States District Court recites, among other things, that at
the time of naturalization, the alien made false representations
concerning his belief in organized government because he was then "a
member of and affiliated with an organization and body of persons
teaching disbelief in organized government, and disbelief in the
Constitution and laws of the United States,' we must determine what
effect the finding of the court should have on the issue of affiliation
before us.
The special inquiry officer found that the decree of the court
cancelling naturalization amounted to a judicial determination on the
issue of affiliation. The exact meaning of this and the extent to which
the special inquiry officer relied upon his belief in arriving at his
conclusion that the respondent had been affiliated with the Communist
Party is not shown in the record. We do not believe it played a
material part in the conclusion at which he arrived because he stated
that he found the evidence presented concerning the respondent's
activities during the period from 1928 to 1930 clearly established
affiliation. However this may be, we rely in no part upon the finding
of the court as to the existence of affiliation with the Communist
Party. We feel that the judgment of the court is binding as to the fact
that the respondent is not a United States citizen by reason of the
naturalization proceeding in 1928, but that the judgment should be very
narrowly considered in all other respects because respondent was not
personally served; he did not appear; and there is no showing that he
had knowledge of the existence of the action (See Restatement of the
Law, Judgment, section 74; Cromwell v. County of Sac, 94 U.S. 351; In
re Van Buren, 2 Fed. 643, D.C., N.Y.; 50 C.J.S., section 631).
Moreover, the question as to affiliation appears to have been an
evidentiary fact, not the ultimate fact, to which alone the rule of
collateral estoppel by judgment applies (Bauer v. Watkins, 171 F.(2d)
492, C.A. 2).
We must now determine whether respondent's activities establish that
he was affiliated with the Communist Party. The charge against J is
based upon that portion of the Immigration and Nationality Act which
makes deportable
Aliens who are members of or affiliated with (i) the Communist
Party of the United States (section 241(a)(6)(C)).
The act also provides that
The giving, loaning, or promising of support or of money or any
other thing of value for any purpose to any organization shall be
presumed to constitute affiliation therewith; but nothing in this
paragraph shall be construed as an exclusive definition of
affiliation (section 101(e)(2)).
The evidence establishing that respondent cooperated with the
Communist Party has been outlined in great detail by the special inquiry
officer in his 17 page opinion. Briefly, he found that between 1927 and
1930, respondent attempted to obtain subscriptions to a Communist
newspaper; that he urged individuals to attend meetings of the
Communist Party; that he attempted to convince several persons of the
desirability of Communist rule in the United States and the superiority
of Communist over American laws; that in public and in private he
passed out Communist Party literature; and that for about two weeks in
1928, during national presidential elections, he displayed an election
poster in his living room window facing the main street. This poster
bore the Communist emblem and urged individuals to vote for the
Communist Party candidate for president. The evidence reveals that J
had driven an automobile in a Communist Party parade and subsequently
attended a Communist Party public rally. On this occasion, he wore a
Communist Party button on his lapel, and in the rear of his car was
found Communist Party literature.
Concerning the placard in his window, respondent had testified that
he had found it in his window and taken it down and destroyed it.
Concerning the wearing of a Communist Party button at a May-day parade,
he stated that he could not remember the incident. He had further
stated that the literature found in his car on that occasion had been
thrown in by someone unknown and that his presence at the park where the
Communist Party meeting had been held occurred after some persons
carrying a crippled man requested him to take the man to the park and
that he went there solely because of that reason. When asked concerning
membership in the Communist Party or its predecessor, he had stated that
he could not remember if he did or did not belong. When asked
concerning distribution of handbills urging people to support the
Communist Party, he had replied he could not recall whether or not he
had done so.
The competency of the evidence relied upon by the special inquiry
officer is attacked. Objections were made to the receipt in evidence of
ex parte affidavits made by persons now deceased or made some 25 years
ago by persons who in some cases could not recall all the facts
contained in the affidavits. We know of no regulation, or rule of law,
pertaining to administrative proceedings which would prevent the receipt
into evidence of the testimony and statements in question. The test in
a proceeding of this nature is not directed toward the admissibility of
the evidence, but toward its probative value. Even without the
equivocation revealed by the respondent in reply to questions concerning
his activities in the period from 1928 to 1930, we would find the
evidence presented by the Service to be reasonable, substantial and
probative (See Matter of M , A-4904219, 5, I. & N. Dec. 484; Matter of
K , A-5204481, 5, I. & N. Dec. 175). The claim of privilege concerning
the testimony by the respondent's "wife,' is without merit. The rules
of evidence do not apply to an administrative proceeding (Falsone v.
United States, 205 F.(2d) 734, 742, C.A. 5, certiorari denied 346 U.S.
864). Furthermore, the existence of a valid marriage relation is not
established. Finally, to a great extent the material matters on which
respondent's "wife' testified were matters which the respondent had
revealed to others by action or words; it would therefore appear that
these matters were not privileged. We find no reason to question any of
the evidence introduced by the Government to establish J 's conduct
between 1927 and 1930. After carefully considering all the evidence of
record, we find that the acts of support of the Communist Party that we
have set forth are established by evidence that is reasonable,
substantial and probative.
Counsel argues that under the rule in the case of Bridges v. Wixon,
326 U.S. 135, 89 L.Ed. 2103, affiliation cannot be found. The leading
cases on affiliation are United States ex rel. Kettunen v. Reimer, 79
F.(2d) 315 (C.C.A. 2); and Bridges v. Wixon, supra. In Kettunen, the
court said there could be no finding of affiliation unless the
Government established that the acts of cooperation by the alien were
such that the subversive organization could reasonably believe that it
could rely upon him. In Bridges, the court quoted with approval the
rule set forth in Kettunen, but added something further -- the Supreme
Court stated that it was necessary to establish that the acts of
cooperation were such as to aid the organization in its illegal
purposes.
We find Bridges and Kettunen no longer applicable because of
important changes now contained in the law. The law then required the
deportation of certain aliens --
members of or affiliated with any organization, association or
society or group, that believes in, advises, advocates or teaches:
(1) the overthrow by force or violence of the Government of the
United States.
And the law then also provided
The giving, loaning or promising of money or anything of value
to any organization, association, society or group of the
character above described (advocating the overthrow of the
Government of the United States by force or violence) shall
constitute affiliation therewith; but nothing in the paragraph
shall be taken as an exclusive definition of * * * affiliation.
/1/
It is important to note that neither Kettunen nor Bridges was charged
with the performance of any act which the law specified should be
considered an act of affiliation -- at that time -- the giving of
financial support.
Deportation of Kettunen was sought on the ground that he had been
affiliated with an organization seeking the overthrow of the Government
by force or violence. The Communist Party was found to be such an
organization. Kettunen attended a meeting of the Communist Party,
filled out an application for membership, and turned it in to the local
secretary, and paid an initiation fee. He attended a subsequent meeting
of the Communist Party at which time he asked that his application be
held in a pending status for the time being. As a result of this, no
final action was taken on the application and he never received a
membership book or became a member of the Communist Party. The
following year he sold newspapers for a bookstore in New York City.
Among the newspapers he sold was the Daily Worker, the official organ of
the Communist Party. He accounted for the proceeds of the sale of the
newspaper to the bookstore and received an agreed part of the proceeds
for his work. The bookstore was not connected in any way with the
Communist Party and there was no showing that Kettunen dealt with any
representative of that organization. Kettunen was found not to have
been affiliated. The court stated:
(Affiation) is not proved unless the alien is shown to have so
conducted himself that he has brought about a status of mutual
recognition that he may be relied on to co-operate with the
Communist Party on a fairly permanent basis. He must be more than
merely in sympathy with its aims or even willing to aid it in a
casual intermittent way. Affiliation includes an element of
dependability upon which the organization can rely which, though
not equivalent to membership duty, does rest upon a course of
conduct that could not be abruptly ended without giving at least
reasonable cause for the charge of a breach of good faith. So
tested we cannot agree that there was evidence to establish that
this relator was affiliated with the Communist Party. His
application for membership would indicate his then sympathy with
its aims, but his reconsideration and failure to join shows his
unwillingness to let his sympathy control his actions, and there
is no proof which shows any mutual recognition that co-operation
was to be expected from him.
In Bridges, financial aid, the only act then specifically stated by
Congress to constitute affiliation, was not an element. There the
Government sought the deportation of Bridges on the ground that he had
been affiliated with an organization seeking the overthrow of the
Government by force or violence. He was the head of a labor union. His
union was not charged with being subversive, but is was found that he
had cooperated with an organization which was the creature of an
organization seeking the overthrow of the Government by force or
violence. The main act of cooperation was the sponsoring of a trade
union journal which urged the support of Communist candidates for public
office, advised the subscribers to read Communist Party literature and
made use of Communist addresses. The law under which deportation was
sought provided that the cooperation had to be with an organization
seeking the overthrow of the Government of the United States by force or
violence. The court ruled that this language meant that only acts which
had as their primary purpose the advancement of the unlawful purposes of
the organization were acts of affiliation. Since Bridges had shown that
his acts of co-operation with the subversive organization were for the
purpose of advancing the lawful aims of his own labor union, and since
there had been no showing by the Service that the cooperation was for
the purpose of advancing the unlawful aims of the proscribed
organization, the court held affiliation had not been established.
As we have pointed out, neither Kettunen nor Bridges had been charged
with the doing of an act specifically characterized by law as an act of
affiliation -- such as an act of giving financial aid. Had they been so
charged and had proof established that they had performed an act which
the statute labeled an act of affiliation, we believe they would have
been held deportable as "affiliated' without the necessity of
establishing "mutual recognition' or that the act was to advance the
unlawful purposes of the subversive group. In support of this belief,
we point out that in Bridges, the court said "By the terms of the
statute, it affiliation includes those who contribute money or anything
of value' (p. 143). We find a later court to say "For more than 30
years Congress, in statutes pertaining to the exclusion and expulsion
from the United States of aliens, has declared that the giving of money
by aliens to certain proscribed organizations constitutes their
"affiliation' with such organization' (Quattrone v. Nicolls, 210 F.(2d)
513, C.A. 1).
Unlike Bridges or Kettunen, the alien here is charged with the
commission of an act which Congress stated was to be considered
affiliation -- support of a subversive organization. The law under
which respondent's deportation is sought now provides that in addition
to financial aid, support of an organization for any purpose shall be
presumed to constitute an affiliation therewith. /2/ The term "support'
is defined in many ways. The definition which seems most pertinent here
is
3. To uphold (one) by aid or countenance; to take the side of,
esp. in a dispute, an election, etc.; as, to support the defendant
in an action; also, to uphold or defend as valid, right, just,
etc., as a cause or a policy (Webster's New Collegiate Dictionary,
p. 853, 1949 ed.).
The term "support' now found in the law eliminates a necessity of
establishing the existence of "mutual recognition' -- the rule that the
organization assisted must have reason to believe that the one assisting
it can be depended upon to perform further acts of cooperation. This
rule is no longer applicable, for "support' may be a one way affair;
those whose cause is championed do not necessarily have to accept the
support, and support can conceivably exist without the knowledge of
those who are aided. It follows then that as before the Immigration and
Nationality Act a finding that financial aid was extended to an
organization required, without more, the conclusion that affiliation
existed, so now, the finding that "support' for any purpose was extended
to the organization requires the conclusion that affiliation existed.
The Kettunen rule of mutual recognition no longer applies to a situation
where support of the Communist Party is involved.
The Bridges rule that the cooperation must extend to the illegal
purposes of the organization is likewise not applicable to proceedings
under the Immigration and Nationality Act charging affiliation with the
Communist Party, for the reason, at the least, that Congress has now,
for the first time, specifically provided that acts of cooperation "for
any purpose' with the organization are sufficient to make the alien
deportable as an affiliate (section 101(e)(2), Immigration and
Nationality Act, supra).
Furthermore, the Immigration and Nationality Act contains several
sections making "affiliation' a ground of deportation. Two subsections
of section 241(a)(6) are pertinent here -- subsections (C) and (F).
These proceedings are brought under (C) which provides for the
deportation of a member or affiliate of the Communist Party. Subsection
(F), as in the law considered in the Bridges case, makes deportable an
alien who is affiliated with an organization teaching the overthrow of
the Government by force or violence. Under (C), the law requires
affiliation to be with a named organization, in this case, the Communist
Party. Under (F), the law does not name a specific organization, but
speaks generally of organizations that seek the overthrow of the
Government by force or violence.
As we have stated, subsection (C) makes deportable members or
affiliates of the Communist Party. Similar language /3/ in the law
preceding the Immigration and Nationality Act, insofar as it concerned
"members' of the Communist Party, was construed by the Supreme Court to
make an alien deportable upon proof that he had voluntarily joined an
organization he was aware was the one "known as the Communist Party
which operates as a distinct and active political organization.' No more
was required. It was not necessary to show "support, or even
demonstrated knowledge of the Communist Party's advocacy of violence'
(Galvan v. Press, 347 U.S. 522, 98 L.Ed. 911). Since (C) makes members
or affiliates equally deportable, it seems reasonable that the rule in
the Galvan case should apply equally to both members and affiliates. It
follows that proof of support of the political entity known as the
Communist Party should without more require an order of deportation /4/
(See Quattrone v. Nicholls, supra; Sigurdson v. Landon, 215 F.(2d) 791,
C.A. 9).
Finally, we believe Bridges differs because there, the alien
established that his acts of cooperation with the subversive
organization were acts to further the lawful ends of his own union -- a
nonsubversive group. As we have shown, respondent does not show that he
performed any of the acts of cooperation with the Communist Party in
furtherance of the aims of any organization other than the Communist
Party. He does not urge that his actions in cooperation with the
Communist Party were performed in furtherance of any legitimate
occupation in which he was then engaged. He either denies their
occurence or explains them to be a haphazard result of circumstances.
J 's actions on behalf of the Communist Party were solely to advance
the cause of that party. They reveal a systematic and persistent
attempt to champion and obtain champions for the Communist Party. He
worked publicly to this end. His actions constitute support of the
Communist Party. Affiliation is established.
Counsel refers to the fact that there is no evidence linking J with
the Communist Party in recent years. This point is not pertinent. Past
acts of affiliation or membership are grounds for deportation. The
appeal will be dismissed.
Order: It is ordered that the appeal be and the same is hereby
dismissed.
(1) In the Bridges case, the law was the Act of October 16, 1918, 40
Stat. 1012, as amended by the Act of June 28, 1940, 54 Stat. 673, c.
439, 8 U.S.C.A. 137, 1942 ed. In the Kettunen case, the law was the Act
of October 16, 1918, 40 Stat. 1012, as amended by the Act of June 5,
1920, c. 251, 41 Stat. 1008, 8 U.S.C.A. 137, 1942 ed.
(2) The congressional committee reports accompanying the legislation
which became the Immigration and Nationality Act reveal that the doing
of any of the acts set forth in section 101(e)(2) was intended to result
in a rebuttable presumption of affiliation which if not rebutted could
be overcome only by proof that the doing of the act was involuntary
(H.R. 1365, February 14, 1952; S.R. 1137, January 29, 1952).
(3) Section 22(1)(2)(C), Internal Security Act of 1950, Chapter 1024,
81st Congress, Second session, 64 Stat. 987, 1006 (Section 3(17)
contains definition of affiliation under the 1950 act).
(4) Matter of G , A-1281257, 5, I. & N. Dec. 112, construed
"affiliation' under the Internal Security Act of 1950. Any implication
there to the effect that the Bridges and Kettunen rule are applicable
under the 1950 act where the alien's affiliation with the Communist
Party resulted from giving support or financial aid, is disavowed.
Agricultural laborer -- Title V of Agricultural Act of 1949 -- Classification as nonimmigrant -- Section 101(a)(15)(H) of Immigration and Nationality Act -- Permanent nature of employment.
(1) Where an alien who was previously admitted as an agricultural laborer under Title V of the Agricultural Act of 1949, applies for readmission to continue his existing employment and is in possession of appropriate documents, he may not be classified as an immigrant merely because he has been employed in the United States during all of the preceding seven years and expresses a desire to enter into a new contract as an agricultural laborer when his present contract expires.
(2) Where an alien seeks temporary admission as an agricultural laborer under Title V of the Agricultural Act of 1949, to engage in the milking of 40 cows as well as other work in connection with the operation of a dairy ranch, his admission as such agricultural laborer is not precluded by section 101(a)(15)(H) of the Immigration and Nationality Act on the theory that the alien is destined to employment of a permanent nature. Administrative classification of agricultural laborers as nonimmigrants under section 101(a)(15)(H) does not make the qualifications of that section applicable to agricultural laborers seeking admission under Title V.
EXCLUDABLE:
Section 212(a)(20), Act of 1952 -- No immigrant visa.
Discussion: The appellant, a 37-year-old male, a native and citizen
of Mexico, made application for readmission to the United States to
continue his employment as an agricultural worker. He is in possession
of the appropriate documents. He was found to be an immigrant and
excluded because he was not in possession of an immigrant visa. Three
grounds, each self-sufficient, are urged as the basis for the finding
that the alien is an immigrant.
Appellant was found to be an immigrant because he wished to enter the
United States to work and stay indefinitely. We believe this conclusion
is not supported by the record. The following questions by the special
inquiry officer and answers by the appellant are pertinent to this
issue:
Q. What are you going to do when your contract is completed?
A. I will return to my home.
Q. Do you intend to go back to work in Mexico?
A. Yes.
Q. Have you ever made an application for an immigration visa?
A. No, never. . . .
Q. If you haven't worked in Mexico since 1947, why have you
decided as soon as your present contract expires you will return
to Mexico?
A. If I can contract another time I will contract another time.
The appellant, when informed of the decision of the special inquiry
officer, stated that he was not going to stay in the United States
permanently and that if he had to, he would go back to Mexico. On the
record before us, we believe it is established that the appellant
intends to enter the United States temporarily as an agricultural worker
and that he will remain in the United States solely in accordance with
the conditions of his admission. In forming this opinion, we have given
weight to the fact that the appellant has been in the United States
illegally before and has testified in a conflicting manner concerning
his past.
A second reason was used for classifying the appellant as an
immigrant. It was found that he had no residence in Mexico to which he
intended to return. On this issue, the appellant testified that his
only residence in Mexico is with his mother who resides with a niece;
that he had not lived in the home of his mother for many years and had
not worked outside the United States since 1947 when he had entered
illegally. The special inquiry officer found, therefore, that the
appellant's reference to his mother's place of residence as his "home'
was not a reference in the term of residence. We cannot concur. The
appellant testified that he would return to Mexico as required by law.
It appears that he is admissible to Mexico. He regularly sends money to
his mother in Mexico; he has an alien laborer's permit and a Mexican
identification card. His presence in the United States since 1952 when
he was admitted as an agricultural laborer, has been under authorization
of law. Under these circumstances, we believe it proper to find that
the appellant has a residence in Mexico which he has no intention of
abandoning.
The final ground on which the appellant was found to be an immigrant
was the fact that he was destined to employment of a permanent nature.
Appellant will be engaged in the milking and care of some 40 cows and
will do other work required in connection with the operation of a dairy
ranch. We do not find that the nature of the employment prevents the
appellant's entry as an agricultural worker.
The alien's identification card reveals that he was admitted to the
United States under section 101(a)(15)(H) of the Immigration and
Nationality Act, which relates to the admission of nonimmigrants coming
to the United States temporarily to perform temporary services. This is
apparently in accordance with the authority contained in 8 C.F.R. 475.2
which in pertinent part provides, that an "agricultural worker' may be
admitted as a nonimmigrant pursuant to section 101(a)(15)(H) of the
Immigration and Nationality Act. The special inquiry officer has
apparently taken this notation of admission as requiring the
"agricultural worker' to meet the requirements of section 101(a)(15)(
H). We believe this is error.
Although an "agricultural worker' must be admissible under the
general requirements of the Immigration and Nationality Act, the
authority for his admission to engage in employment in agricultural work
is found not in the Immigration and Nationality Act, but in Title V of
the Agricultural Act of 1949, as amended (Public Law 78, 82nd Cong., 1st
sess.). The administrative desire to classify nonimmigrants under
categories established by the Immigration and Nationality Act and the
placing of an "agricultural worker' in the category in which are placed
others admitted under the Immigration and Nationality Act to perform
temporary services cannot make the qualifications of section
101(a)(15)(H) of the act apply to persons seeking admission under Title
V. This conclusion is required by the clear import of section 405(e) of
the Immigration and Nationality Act which states that the act shall not
be construed to "repeal, alter, or amend' Title V.
The controlling position of Title V of the Agricultural Act of 1949,
as amended, is recognized by the regulations. Thus, 8 C.F.R. 214 which
contains the general provisions governing the admission of
nonimmigrants, specifically provides that its provisions "shall not be
applicable to a nonimmigrant agricultural worker applying for admission,
or admitted, to the United States in accordance with the provisions of
Title V of the Agricultural Act of 1949, as amended' (8 C.F.R. 214.6).
The regulations which govern the admission of nonimmigrants for
temporary services, labor or training (8 C.F.R. 214h) contain a similar
limitation providing that its provisions shall not be applicable to a
nonimmigrant agricultural worker applying for admission or admitted to
the United States in accordance with the provisions of Title V.
Both of the parts mentioned in the preceding paragraph provide that
an agricultural worker applying for admission or admitted to the United
States in accordance with the provisions of Title V shall be governed by
the provisions of Part 475 of Title 8, C.F.R.
We have thus determined that the provisions of Title V of the
Agricultural Act of 1949, as amended, and the regulations promulgated
thereunder govern the admission of an alien applying to engage in
employment as an "agricultural worker.' What are the requirements for
admission as an "agricultural worker' so established? Title V, insofar
as is pertinent, provides that the Secretary of Labor of the United
States is authorized to recruit agricultural workers from the Republic
of Mexico to come to the United States, subject to immigration laws "for
such time and under such conditions as may be specified by the Attorney
General' to engage in "agricultural employment.'
Title V of the Agricultural Act of 1949, as amended, defines the term
"agricultural employment' to include services or activities within the
provisions of section 3(f) of the Fair Labor Standards Act of 1938, as
amended, or section 1426(h) of the Internal Revenue Code, as amended.
Section 3(f) of the Fair Labor Standards Act of 1938, as amended (29
U.S.C.A. 203(f)) defines the term "agriculture' as follows:
"Agriculture' includes farming in all its branches and among
other things includes the cultivation and tillage of the soil,
dairying, the production, cultivation, growing, and harvesting of
any agricultural or horticultural commodities (including
commodities defined as agricultural commodities in section 1141j(
g) of Title 12, the raising of livestock, bees, fur-bearing
animals, or poultry, and any practices (including any forestry or
lumbering operations) performed by a farmer or on a farm as an
incident to or in conjunction with such farming operations,
including preparation for market, delivery to storage or to market
or to carriers for transportation to market.
Section 1426(h) of the Internal Revenue Code (Title 26, U.S.C.A.)
provides that the term "agricultural labor' includes all services
performed on a farm and the term "farm' includes stock and dairy farms
(See Kenan v. McGowan, 69 F.Supp. 95, N.Y.; Navar v. United States, 62
F.Supp. 344, Texas, affirmed 158 F.(2d) 91).
The regulations governing the admission of agricultural workers are
found in 8 C.F.R. 475. These regulations provide that an alien who
applies for admission under the provisions of Title V must establish
that he is admissible under the provisions of the immigration laws;
that he has been recruited as an agricultural worker; that he is an
agricultural worker; and that he will comply with the conditions of his
admission. Only the last two requirements are brought into issue here.
The term "agricultural worker,' as defined by the regulations,
requires the applicant to be a native-born citizen of Mexico who has
been a bona fide resident of Mexico preceding the date of his
application and who seeks to enter the United States temporarily under
the provisions of Title V of the Agricultural Act of 1949, as amended,
for the sole purpose of engaging in agricultural employment. Only the
emphasized portion is in issue here.
Assuming that appellant were applying for admission for the first
time as an agricultural worker to engage in employment as a dairyman, we
would find him admissible because it is clear that he would be seeking
to enter the United States temporarily to engage in agricultural
employment as that term is established by Title V of the Agricultural
Act of 1949, as amended, and that he is an "agricultural worker' as that
term is established by the pertinent regulations. Moreover, no ground
of inadmissibility under the general immigration laws is established.
It may thus be seen that prior to his departure appellant was engaged
as an agricultural worker in agricultural employment. He departed for a
brief visit to Mexico. He now seeks to resume the status he enjoyed
before his departure. Readmission of an alien admitted as an
agricultural worker is governed by the provisions of 8 C.F.R. 475.6.
Readmission of such an alien is authorized if he is still maintaining
the status of an agricultural worker in the United States. Clearly,
appellant meets the requirements of law for readmission as an
agricultural worker. The appeal must, therefore, be sustained.
Order: It is ordered that the appeal be and the same is hereby
sustained.
Crimes involving moral turpitude -- Section 56-1016 of the Arizona Employment Security Act of 1941.
Violation of section 56-1016 of the Arizona Employment Security Act of 1941 (false statement or concealment to obtain benefits under any employment security law) is a crime involving moral turpitude.
EXCLUDABLE:
Act of 1952 -- Section 212(a)(9) -- Admission of and conviction for a
crime involving moral turpitude, false statements to obtain benefits
under the Arizona Employment Security Act.
Discussion: This case is before us on appeal from the decision of a
special inquiry officer dated October 29, 1954, excluding the alien
under section 212(a)(9). Appellant, a 43-year-old native and citizen of
Mexico, sought admission to the United States at Douglas, Arizona, on
October 28, 1954, as a border crosser returning to his employment in the
United States. On that occasion, he presented the required alien
registration receipt card.
Appellant was originally admitted to the United States for permanent
residence on December 17, 1943, at Douglas, Arizona, as a nonquota
immigrant under section 4(c) of the act of 1924. Since that time he has
maintained his status as a commuter while living in Agua Prieta, Sonora,
Mexico. /1/
Appellant was convicted on October 27, 1954, on a plea of guilty in
the Justice Court, Cochise County, Arizona, of making false statement to
obtain benefits under the Employment Security Act by falsely stating
that he lived in Douglas, Arizona, although he and his family actually
lived in Agua Prieta, Sonora, Mexico. Appellant was sentenced to 60
days' imprisonment on each of 14 counts, with a total sentence of 840
days' imprisonment being suspended by the court. The court noted that
the total amount of benefits obtained by appellant was $340.
The pertinent sections of the Arizona Employment Security Act of
1941, as amended (56-1001 to 56-1022) provide as follows:
56-1016. Penalties. -- (a) Whoever makes a false statement or
representation knowing it to be false or knowingly fails to
disclose a material fact, to obtain or increase any benefit or
other payment under this Act, either for himself or for any other
person, or under an employment security law of any other state, of
the Federal Government, or of a foreign government, shall be
punished by a fine of not less than twenty-five dollars ($25.00)
nor more than two hundred dollars ($200.00), or by imprisonment
for not longer than sixty (60) days, or by both such fine and
imprisonment; and each such false statement or representation or
failure to disclose a material fact shall constitute a separate
offense.
56-1004. Benefit eligibility Conditions. -- An unemployed
individual shall be eligible to receive benefits with respect to
any week only if the Commission finds that: * * *
(d) Residence. -- He is residing in Arizona at the time he
registers for work and files a claim for benefits * * *.
Since section 56-1016(a) includes the word "knowingly' in its
phraseology, recent comments by the Supreme Court on the use of this
word in criminal statutes is relevant in the present situation. In
Morissette v. United States, 342 U.S. 246 (1952), the Court stated at
pages 264, 265:
Congress has been alert to what often is a decisive function of
some mental element in crime. It has seen fit to prescribe that
an evil state of mind, described variously in one or more such
terms as "intentional,' "willful,' "knowing,' "fraudulent' or
"malicious,' will make criminal an otherwise indifferent act, or
increase the degree of the offense or its punishment. Also, it
has at times required a specific intent or purpose which will
require some specialized knowledge or design for some evil beyond
the common-law intent to do injury. The law under some
circumstances recognizes good faith or blameless intent as a
defense, partial defense or as an element to be considered in
mitigation of punishment.
Therefore, the word "knowingly' connotes a purposeful intent in
connection with a conscious or deliberate act of wrongdoing. In the
instant case, appellant consciously or deliberately stated that he was a
resident of Douglas, Arizona, with the purposeful intent of deceiving
and obtaining unemployment benefits to which he was not entitled.
In addition, we feel that the phraseology of sections 56-1016 and
56-1004 clearly implies that an intent to defraud through the
utilization of false statements on the unemployment application is an
essential element of the offense in question. The Supreme Court has, of
course, determined that offenses containing an inherent fraud element
involve moral turpitude (Jordan v. DeGeorge, 341 U.S. 223 (1951)).
Hence, we conclude that the offense defined in section 56-1016 of the
Arizona Code is a crime involving moral turpitude. Cf., Matter of L ,
T-2760542, 5, I. & N. Dec. 705 (B.I.A., 1954); /2/ Matter of W ,
E-137668, 5, I. & N. Dec. 759 (B.I.A., 1954). Thus, appellant was
properly excluded under section 212(a)(9) and the appeal is accordingly
dismissed.
Order: It is hereby ordered that the appeal be dismissed.
(1) In Matter of H O , A-7675485, 5, I. & N. Dec. 716 (B.I.A., 1954),
22 L.W. 2459, question was posed whether the Immigration and Nationality
Act of 1952 (66 Stat. 163; 8 U.S.C. 1101) has restricted, changed, or
otherwise limited the long-established system of commuter admissions.
The Board held that the practice of considering commuters as permanent
residents has not been disturbed by the act of 1952, but rather has
impliedly received congressional approval.
(2) In Matter of L , T-2760542, 5, I. & N. Dec. 705, B.I.A., March 5,
1954; 23 L.W. 2120, the Board considered a conviction under section
101(a) of the California Unemployment Insurance Act. In that instance,
the alien had falsely stated that he was unemployed, when he was
actually working, and received benefits to which he was not entitled.
The offense was found to be one involving moral turpitude, since an
intent to defraud is an essential element of the crime.
Expatriation -- Section 401(j) of Nationality Act of 1940, as amended -- Motive of parents' refusal to permit child's return to United States.
United States citizenship was lost under section 401(j) of the Nationality Act of 1940, as amended, where the individual had a desire to return to the United States on and after September 27, 1944, but voluntarily assented to the wishes of his parents that he remain in Mexico because they were unwilling to have him serve in the Armed Forces of the United States. The motive of the parents for refusing him permission to return to the United States is imputed to the child because he voluntarily assented to their wishes.
EXCLUDABLE:
Act of 1952 -- Section 212(a)(22) -- Remained outside the United
States to evade military service.
Discussion: This case is before us on appeal from the decision of a
special inquiry officer dated August 18, 1954, holding appellant an
expatriate under section 401(j) of the Nationality Act of 1940 and
excluding him under section 212(a)(22). Appellant acquired United
States citizenship at birth in Dyer, California, on July 12, 1926. He
lived in this country until 1929. From 1929 to 1951, appellant lived on
his father's land in Mexico and helped farm it, although he received no
wages from his father. Appellant's most recent application for
admission occurred at San Ysidro, California, on May 24, 1954, when he
requested permission to enter as a United States citizen.
On July 27, 1951, appellant applied for admission at San Ysidro,
California, and testified before a board of special inquiry. On that
occasion, appellant admitted voting in elections of officers of the
government controlled farming settlement in which his family lived. He
stated that he took his father's place in voting in 1949. Appellant
also admitted voting in the Mexican presidential election of 1946 and
that on both occasions he voted voluntarily. Appellant testified that
he had a desire to return to the United States between September 27,
1944, and July 27, 1951, but that his parents did not want him to come,
because an aunt had advised them that he would be obligated to serve in
the United States military forces if he came to this country. Appellant
admitted assenting to their wishes and only recently decided to persuade
his father to loan him the travel money. On July 28, 1951, appellant
was held an expatriate under section 401(j) as a citizen who remained
outside the United States to evade and avoid military service and was
excluded as an alien seeking to enter without the required visa (section
13(a), act of 1924) or passport (Executive Order 8766).
Shortly thereafter, appellant entered the United States
surreptitiously and registered for the draft on July 29, 1951, at Santa
Ana, California. He was classified I-A on September 14, 1951, with
classification being changed to IV-F on November 13, 1951. During the
present exclusion hearing on June 29, 1954, appellant affirmed his
testimony of 1951 that although he had a desire to come to this country
during the crucial period, he assented to the wishes of his parents, who
were unwilling that he serve in the United States Armed Forces.
Expatriation under section 401(j) of the Nationality Act of 1940
occurs when the evidence shows that the citizen had a desire to come to
the United States, but was deterred in his resolve primarily by
reluctance to serve in our armed forces (Matter of M , A-6690283, 2, I.
& N. Dec. 910 (B.I.A., 1947)).
In the past, the Board has held that the motive for parental
insistence on departure from this country to escape military service
obligations or for parental refusal of permission for the citizen child
to return to the United States to assume his required military
obligations may be imputed to the child. However, such a motive may not
be imputed to the child unless the child voluntarily adopted the
parental view.
In the present case, appellant has admitted that he had a desire to
return to the United States between September 27, 1944, and July 27,
1951, but that his parents refused to give him permission to come,
because they were unwilling that he should serve in the United States
military forces. In addition, appellant admittedly assented to the
parental view. Hence, the parental motive for refusing permission
(unwillingness that the child should serve in the United States armed
service) must be imputed to appellant, rendering him an expatriate under
section 401(j) of the Nationality Act of 1940.
Since appellant was an alien at the time of his last application for
admission, it is necessary to consider the question of whether he was
excludable at that time. In view of our conclusion that appellant lost
his United States citizenship under section 401(j) by remaining abroad
to evade and avoid military service, the ground of exclusion under
section 212(a)(22) is definitely sustained. The appeal is accordingly
dismissed.
Order: It is hereby ordered that the appeal be dismissed.
Conviction by United States court martial in Germany as conviction in the United States -- Section 19(a), Immigration Act of 1917.
Conviction in United States court martial proceedings held in Germany deemed not to be conviction in the United States within the meaning of section 19(a) of the Immigration Act of 1917 so as to render alien deportable because of conviction in this country of crime involving moral turpitude, committed within five years after entry (Matter of F , 5, I. & N. Dec. 56, overruled).
CHARGES:
Warrant: Act of 1924 -- No immigration visa.
Lodged: Act of 1917 -- Crime within five years (murder).
Discussion: This case comes before us on a motion to reconsider an
order of this Board entered on January 25, 1954, directing that the
respondent be deported from the United States on the charge stated in
the warrant of arrest and on the lodged charge.
The respondent was born on December 16, 1915, in Vita, Manitoba,
Canada. He was brought to this country in 1916. His entry in that year
has not been verified. He last entered the United States at Detroit,
Michigan, in March 1941 as a United States citizen.
On March 25, 1941, the respondent entered the Armed Forces of the
United States. On April 1, 1943, while serving with the United States
Armed Forces, he was naturalized as a United States citizen. On June 3,
1945, in a general court martial, in Germany, he was sentenced to life
imprisonment and a dishonorable discharge for a murder committed on
March 30, 1945, while he was serving in the armed forces. On May 13,
1946, this sentence was reduced to 20 years' imprisonment.
The respondent testified that he was returned to the United States in
January 1946 in custody of United States Army officials. He had no
control over his movements at the time he was returned to this country
in January 1946 (subsequent to his dishonorable discharge on September
10, 1945), and, inasmuch as his departure from this country was under
orders of the United States Armed Forces, his return in 1946 cannot be
considered as an entry for the purposes of the immigration laws. During
the period of his confinement for the above offense, he volunteered as a
subject for malaria control experiments and, in consequence, was paroled
on November 18, 1948.
On January 24, 1950, his citizenship was cancelled in the United
States District Court, Eastern District of Michigan, Southern Division.
Warrant for his arrest in deportation proceedings issued on May 8,
1951, on the ground that he was deportable under the Immigration Act of
1924 in that at time of entry in 1941 he was an immigrant not in
possession of a valid immigration visa. On December 18, 1951, a hearing
officer found him deportable on the charge stated in the warrant of
arrest, but concluded that he was not deportable under section 19 of the
Act of February 5, 1917, on the ground that on or after May 1, 1917, he
had been sentenced to imprisonment for a term of a year or more because
of conviction in this country of a crime involving moral turpitude,
committed within five years after entry, to wit: murder. Upon appeal,
on May 13, 1952, the Assistant Commissioner affirmed the foregoing
decision and certified the case to this Board.
On January 25, 1954, this Board directed that the respondent be
deported from the United States on the charge stated in the warrant of
arrest and on the lodged charge. The determination that the respondent
was deportable on the lodged charge was based on a previous decision by
this Board in Matter of F , A-6776210, 5, I. & N. Dec. 56, B.I.A.,
January 9, 1953, that a conviction by a court martial in Germany was a
conviction "in this country' within the purview of section 19(a) of the
Immigration Act of 1917, as amended. Since we found that the alien was
deportable on the lodged charge, it was held that section 19(d) of the
Immigration Act of 1917, as amended, precluded the granting of voluntary
departure or suspension of deportation on the basis of residence and/or
serious economic detriment to the respondent's aged and infirm mother.
It was further concluded that relief under the seventh proviso to
section 3 of that act, could not be granted nunc pro tunc because of the
absence of a record of lawful admission for permanent residence.
Counsel, in his motion for reconsideration, has drawn the attention
of this Board to the decision rendered in the United States District
Court, District of Columbia, in the above-cited Matter of F , (supra),
subsequent to the entry of the order by this Board in that case on
January 9, 1953, and has asserted that in the light of that decision the
position taken by this Board in the instant case is contrary to law.
On April 28, 1954, in the above-cited Matter of F , (Herbert
Friedenberg v. Brownell, Civil Action No. 2225-53, unreported), the
District Court, District of Columbia, granted the plaintiff's motion for
a summary judgment. The court ruled that despite the Government's
attempts to interpret the statute in the light of other provisions of
the statute and analogous court decisions, it was bound by the plain
common-sense meaning of the words "in this country,' as found in section
19(a).
In the light of the foregoing decision overruling the precedent
relied on by this Board in finding the instant respondent deportable on
the lodged charge, we are constrained to find that this Board was in
error in ruling that the respondent is deportable on that charge. Our
order of January 25, 1954, will therefore be revoked insofar as it
relates to this charge.
Inasmuch as the respondent is no longer deportable on a ground
falling within section 19(d) of the Immigration Act of 1917, the issue
of discretionary relief must now be reexamined.
From a review of the record before us, we are unable to find any
application for discretionary relief pending prior to the Immigration
and Nationality Act. The respondent, therefore, must establish
eligibility for such relief under the Immigration and Nationality Act.
Section 101(f) of that act provides:
No person shall be regarded as, or found to be, a person of
good moral character who, during the period for which good moral
character is required to be established, is, or was -- * * *
(8) one who at any time has been convicted of the crime of
murder.
Since the respondent is precluded from establishing good moral
character, he cannot be found eligible for any discretionary relief.
In arriving at this conclusion, we are fully mindful of the evidence
of record reflecting that the respondent has lived practically his
entire life, since the age of one, in the United States; that he has an
aged and infirm legally resident alien mother dependent upon him for
support; that he entered the armed forces of this country in 1941 and
continued to serve in the armed forces until 1945; that, without
minimizing the gravity of the offense of which he was convicted, the
offense in question occurred under the stress of abnormal war
conditions; that while serving his term of imprisonment, he volunteered
for malaria control experiments and is still afflicted to some extent
with disease contracted during that experiment; that his services in
this connection were regarded as sufficiently meritorious to warrant the
issuance of a certificate of merit by the Administrator of the Federal
Security Agency and the Surgeon General of the United States Public
Health Service, and to result in his parole; that his parole officer
has recommended that he be considered for clemency and has called him a
fit subject for restoration to military duty; and, lastly, that since
his release he has effected what is apparently a complete
rehabilitation, has been regularly employed, and, as evidenced by an
affidavit from his supervisor, has been a person of good habits and a
reliable worker. Notwithstanding these considerations, it would appear
that the respondent's only recourse rests in the introduction of a
private bill in the Congress for his relief or alternatively, in
obtaining a pardon for his conviction of murder with a view of securing
a nonquota immigrant visa with which he may lawfully enter the United
States for permanent residence.
Order: It is ordered that the order entered on January 25, 1954, by
this Board be revoked insofar as it relates to deportability on the
lodged charge, and that the order entered by the Assistant Commissioner
on May 13, 1952, directing that the alien be deported from the United
States on the charge stated in the warrant of arrest, be affirmed.
Prostitution -- Excludability under section 212(a)(12) of Immigration and Nationality Act -- Engaging in prostitution -- Isolated act.
Evidence of alien's conviction of single act of prostitution is insufficient to sustain a charge under sections 241(a)(12) and 212(a)( 12) of the Immigration and Nationality Act that she had engaged in prostitution after entry since the term "engaged in prostitution' means conduct that is carried on over a period of time although it need not be carried on as a business or as a means of livelihood (Citing Matter of R , 2, I. & N. Dec. 50).
CHARGE:
Warrant: Act of 1952 -- Engaged in prostitution after entry.
Discussion: This record relates to a 26-year-old married female, a
native and citizen of Canada, who entered the United States for
permanent residence on June 1, 1947, as a nonquota immigrant under the
provisions of the Act of December 28, 1945 (War Bride Act). Respondent
has subsequently made week-end visits to Canada, the last of which
occurred in 1951, and was readmitted upon presentation of a
border-crossing card. These subsequent entries have not been verified.
The ground of deportability asserted against the respondent is that she
has, subsequent to her entry, by reason of conduct, behavior or
activity, placed herself within a class of persons specified in section
212(a)(12) of the Immigration and Nationality Act, to wit: aliens who
have engaged in prostitution.
Following her admission for permanent residence, respondent was
arrested on June 27, 1951, for disorderly conduct. The arrest report
indicates that respondent had agreed to commit an act of prostitution.
Respondent denies this allegation. She was convicted of disorderly
conduct and fined $100. She served thirteen days in jail and thirty
days were suspended. Respondent was next arrested on March 2, 1954, for
loitering in a tavern. The arrest report indicates she was drinking
beer with a man she did not know. While respondent also denies this
allegation, she was convicted and given twenty days suspended sentence
and placed on probation. Respondent was next arrested on June 2, 1954,
for violation of Ordinance 73095-1. The arrest report indicates that
she had committed an act of prostitution. Respondent denies this
allegation and pleaded not guilty at her trial. She was convicted,
however, and sentenced to pay a fine of $100 and serve thirty days in
the city jail. All these arrests occurred in the City of Seattle,
Washington. Ordinance 73095 is cited at the end of this decision.
The testimony of two of the arresting officers and the police matron
was taken regarding this last arrest. It developed that respondent, in
company with two other women, was observed "picking up' three soldiers
on the night of June 1, 1954; that subsequently, the three couples were
observed getting out of a taxi and entering the premises at which the
arrest occurred. The two women with the respondent were known to the
police as prostitutes. The officers testified to what occurred at the
time of the arrest, and the police matron to what occurred at the trial
of respondent on June 3, 1954, and June 22, 1954. While respondent
pleaded not guilty to the charge in court, and consistently denied
during the course of these proceedings that she had committed an act of
prostitution, the weight of the evidence is to the contrary. It is
concluded from the record that respondent did commit an act of
prostitution as charged on June 2, 1954.
Respondent produced three witnesses, H H , who has known the
respondent very well during all the period of her residence in the
United States; Mrs. C G , who has known respondent seven years; and C
S , who has known respondent about three years. The three witnesses had
each visited frequently in the home of respondent and knew her children
and husband, and the respondent had visited in their homes. Each
testified that respondent was a good woman, a good mother, and that they
knew of nothing adverse to her character although each knew of her
arrests. Each specifically denied any knowledge that would lead them to
conclude that respondent was a prostitute or practiced prostitution. I
find the testimony of the witnesses credible. It is concluded, that
while the record establishes that respondent did commit an act of
prostitution on June 2, 1954, it does not establish that she is a
prostitute.
Respondent is married to J H T , a citizen of the United States and a
member of the Armed Forces, now stationed in Korea. She has two
American born children, P , aged seven, and L , aged five. She and the
two children are supported by an allotment from the pay of her husband
amounting to $176.90 per month. Respondent supplements this amount by
occasional work in laundries and by home embroidery work. Her
supplemental income amounts to approximately $25 per month. Respondent
testified that this income is sufficient to maintain herself and the
children. Respondent has no property or other assets in the United
States and has specified Canada as the country to which she would wish
to be sent if ordered deported.
Had this charge been urged against the respondent under the prior
act, it could not be sustained (Matter of R , 2, I. & N. Dec. 50;
United States ex rel. Mittler v. Curran, 8 F.(2d) 355). The applicable
charge under the Act of February 5, 1917, would have been that
respondent had been found practicing prostitution subsequent to entry.
However, the charge is brought under the provisions of the Immigration
and Nationality Act and asserts that respondent by reason of conduct,
behavior or activity at any time after entry became a member of any of
the classes specified in section 212(a)(12), to wit: aliens who have
engaged in prostitution. While the two charges provide for the
deportation of persons who engage in or practice prostitution there has
been a change in legislative language. It is a canon of statutory
construction that legislative language will be interpreted on the
assumption that the legislature was aware of existing statute, as well
as the judicial interpretations thereof; and that if a change occurs in
legislative language, a change was intended in legislative result
(Sutherland, Statutes and Statutory Construction, Vol. 2, section 4510
(1943 ed.)). It must be presumed, therefore, that when Congress enacted
the Immigration and Nationality Act, it was aware of the judicial
decisions which construed section 19 of the Act of February 5, 1917, as
it related to prostitutes and the practice of prostitution. It may also
be presumed that Congress was aware of the administrative
interpretations used in the enforcement of that act.
The most obvious change in the wording of the statute is the
elimination of the word "found' and substitution of wording that clearly
makes the charge retroactive. This change is not applicable to the
instant case as the warrant was issued and served within ten days after
respondent was convicted. The matter at issue is the present wording
"engaged in' used in lieu of "practice of' prostitution. In a court
decision under prior law (United States ex rel. Mittler v. Curran, 8
F.(2d) 355) the court said:
Practicing prostitution within the meaning of the Act of
February 5, 1917, means to pursue as a business or occupation the
sale of one's body for carnal intercourse * * * and a single
instance, even of sale, may or may not be evidence of "practicing'
which the statute requires.
This, and similar decisions were followed by the Board of Immigration
Appeals in Matter of R , 2, I. & N. Dec. 50. Following Sutherland, the
Congress intended a different result when it substituted the words
"engaged in' for "practicing' prostitution. The different result
appears to be that there need be no connotation of prostitution as a
business, occupation, or means of livelihood. This result is bolstered
by the words used in the same section of the act making an alien
excludable who is coming to the United States solely, principally, or
incidentally, to engage in prostitution One can hardly engage
incidentally in a means of livelihood.
The words "engaging in' and "engaged' have been interpreted by the
courts in many cases. In Steinway v. Majestic Amusement Co., 179 F.(
2d) 681, 682, the court said:
Each case must be determined on its own facts but the general
rule is that to constitute "engaging in' there must be
substantial, continuous and regular, as distinguished from casual,
single or isolated, acts.
In First National Bank v. Phoenix Mutual Life Insurance Co., 57 F.(
2d) 731, 734, it was stated:
"Engaging' was ordinarily held to partake of idea of frequency
or continuity with sometimes suggestion of vocational connection.
In Beveridge v. Jefferson Standard Life Insurance Co. (197 SE 721,
722; 120 W.Va. 256), "engaged' means to carry on, to conduct, to employ
one's self, and does not relate to a single act. To say that one is
"engaged' in a thing is to say that the act is continuous. From the
above I draw the conclusion that under the new law an alien need not
make a business or vocation of prostitution to become a member of a
deportable class, nor need the proscribed acts occur within a reasonable
past period; they may have occurred at any time subsequent to any
entry. But I also find that an alien must engage in prostitution, and
that "engage in' means to carry on over a period of time a type of
conduct, a pattern of behavior, or form of activity in which sale of the
body for carnal intercourse is an integral part, however small that part
may be. It does not include an action entered into on the spur of the
moment, induced in part by poorly chosen companions, and influenced by
an unusual marital situation. It does not include a single isolated act
of prostitution.
From the above, it is my conclusion that, while respondent has been
indiscreet and poorly advised, if not reckless in her choice of
companions, and not condoning by one whit her behavior, she has not
engaged in prostitution within the meaning of section 212(a)(12) of the
Immigration and Nationality Act. With due consideration of the two
citizen children of respondent and the absence from the United States of
her spouse as a member of the armed forces, I find that the charge
contained in the warrant of arrest is not sustained and that these
proceedings should be terminated.
At the conclusion of testimony on November 8, 1954, this matter was
continued at request of counsel in order that respondent might proceed
in Municipal Court of the City of Seattle on a petition to set aside
judgment of conviction and grant new trial. While the matter of setting
aside the conviction is a matter of importance to the respondent as a
personal matter, it is immaterial to these proceedings in view of my
decision to terminate. Whether or not the conviction is set aside would
not affect that decision. Counsel having agreed that these proceedings
might be concluded, continuance granted November 8, 1954, is rescinded
and the hearing closed.
Findings of Fact: Upon the basis of all the evidence adduced it is
found:
(1) That the respondent is an alien, a native and citizen of
Canada;
(2) That the respondent entered the United States for permanent
residence on June 1, 1947, at Blaine, Washington;
(3) That the respondent last entered the United States
following a short visit to Canada in 1951;
(4) That the respondent committed an act of prostitution June
2, 1954;
(5) That the respondent has not engaged in prostitution within
the meaning of section 212(a)(12) of the Immigration and
Nationality Act.
Conclusion of Law: Upon the basis of the foregoing findings of fact,
it is concluded:
That under section 241(a)(12) of the Immigration and
Nationality Act, the respondent is not subject to deportation in
that, by reason of conduct, behavior or activity at any time after
entry she became a member of any of the classes specified in
section 212(a)(12), to wit: aliens who have engaged in
prostitution.
Order: It is ordered that the proceedings in this case be
terminated.
An ordinance relating to prostitution, fornication, assignation and
other lewd or indecent acts; defining offenses and prescribing
penalties.
Be it ordained by the City of Seattle, as follows:
SEC. 1. It shall be unlawful to commit or offer or agree to commit
any act of prostitution, fornication, assignation or any other lewd or
indecent act; or
(a) To secure or offer to secure another for the purpose of
committing any such act; or
(b) To be in or near any thoroughfare or place open to the
public for the purpose of inducing, enticing or procuring another
to commit any such act; or
(c) To knowingly transport anyone to any place where he or she
may commit or for the purpose of committing any such act; or
(d) To knowingly receive, offer or agree to receive anyone into
any place or building for the purpose of performing any such act,
or to knowingly permit anyone to remain there for any such
purpose; or
(e) To direct anyone to any place for the purpose of committing
any such act; or
(f) To in any way aid, abet or participate in the doing of any
such act.
SEC. 2. The provisions of this ordinance are intended as cumulative
and selective, and shall not repeal any other ordinance involving the
same subject matter.
SEC. 3. If any provision of this ordinance is held invalid, such
invalidity shall not affect any other provision, or the application
thereof, which can be given effect without the invalid provision or
application, and to this end the provisions of this ordinance are
declared to be severable.
SEC. 4. The violation of or failure to comply with any provision of
this ordinance shall be punishable by imprisonment in the city jail for
not to exceed ninety (90) days, or by a fine not exceeding Three Hundred
Dollars ($300.00), or by both such fine and imprisonment.
SEC. 5. (30 day ending).
Discussion: The special inquiry officer on December 28, 1954,
directed in an order that the proceedings in the case at bar be
terminated and at the same time he certified the case to this Board for
final decision in accordance with the applicable regulations. The
special inquiry officer found that the respondent is not subject to
deportation under the provisions of section 241(a)(12) of the
Immigration and Nationality Act of 1952, on the ground that by reason of
conduct, behavior or activity any time after entry, she became a member
of one of the classes of aliens specified in section 212(a)(12) of the
Immigration and Nationality Act, to wit: aliens who have engaged in
prostitution.
Counsel in a letter dated January 5, 1955, asserted that he concurred
in the conclusions of law and the order entered by the special inquiry
officer on December 28, 1954, but excepted to Finding of Fact number 4
of the special inquiry officer's decision. The special inquiry officer
found that the respondent committed an act of prostitution on June 2,
1954. The record reflects that the respondent was convicted in the
Municipal Court, Seattle, Washington, on June 22, 1954, of committing an
act of prostitution in Apartment #2, 818 Poplar Street, Seattle,
Washington, on or about June 2, 1954. We do not feel this finding of
the special inquiry officer should be disturbed. Likewise, we agree
with the reasoning and conclusion of the special inquiry officer in
finding that the respondent is not subject to deportation. Accordingly,
the following order will be entered.
Order: It is ordered that the order of the special inquiry officer
dated December 28, 1954, directing that the proceedings in the case at
bar be terminated be and the same is hereby approved.
Divorce -- Granted by foreign consul in United States to local resident.
A divorce granted to a resident of the State of New York by the Royal
Consulate General of Egypt in New York City is not valid in the State of
New York and, consequently, not entitled to full faith and credit in
other states even though such divorce is recognized as valid in Egypt.
Discussion: This case comes before us on appeal from a denial of a
petition for the issuance of an immigrant visa submitted by A W H on
behalf of her husband, A O H . The district director's denial of the
petition is predicated on the fact that the beneficiary, who entered the
United States at the port of New York on August 30, 1948, as an
accredited government official and is still residing here, was
previously married and the only evidence of termination of that marriage
is a certificate that a divorce was granted by the Royal Consulate
General of Egypt in New York City, at a time when the beneficiary was
residing in the State of New York.
The certificate in question reads as follows: "This is to certify
that Mr. A O H was married on December 5th, 1946 at Cairo, EGYPT, to
Miss E I A , and was divorced from said wife on December 4th, 1950.
This divorce was concluded at the office of the Royal Consulate General
of Egypt in New York, U.S.A., in conformity with stipulations of the
Egyptian Law entered in the Divorce Records under No. 20.' The
certificate is dated November 5, 1952, and bears the signature of the
Egyptian consul.
The petition reflects that following the above divorce the
beneficiary married the petitioner on December 16, 1951, at Baltimore,
Maryland. Citizenship of the petitioner is conceded. The issue before
us is the validity of the marriage in the State of Maryland on December
16, 1951.
We have been unable to find any authority that a divorce decree
terminating a marriage entered into abroad by a resident of the State of
New York, handed down by a foreign consulate in that state, in the
absence of a defendant who has never resided in that state, will be
recognized as valid either in that state or in the State of Maryland, so
as to permit a subsequent marriage in the State of Maryland. Under the
circumstances, we are constrained to fall back upon general principles
of law.
It is the general rule that any court in the United States will
recognize a valid divorce decree and give it the same effect that it has
in the jurisdiction in which it was rendered (17 Am.Jur. 167-168, 561).
Where it is void under the laws of the state or county where it was
rendered, it is void everywhere (17 Am.Jur. 556, 557).
It is a concomitant rule that each state has jurisdiction over the
matrimonial status of its citizens and persons domiciled in its
jurisdiction; hence, each state acting through its legislature has the
exclusive right and power to regulate, control, and prescribe and change
conditions for divorce of thos residing within its territorial limits.
Divorce rests wholly on statutory provisions (17 Am.Jur. 150; 27 C.J.S.
527).
Thus, in the United States a divorce may be secured only in a court
having a proper statutory jurisdiction of such proceedings, upon a
ground prescribed by statute, and upon compliance with statutory modes
and forms of procedure (27 C.J.S. 527-528). For example, a Jewish
rabbinical divorce obtained in the State of New York has been held
invalid (Shelman v. Shelman, 174 N.Y.S. 385, 105 Misc. 461) even though
such a divorce, if obtained abroad in a country recognizing its validity
would be recognized here upon grounds of comity (In re Rubenstein's
Estate, 257 N.Y.S. 637, 143 Misc. 917). Similarly, a church divorce of
the Mormon church was not regarded as valid when it was not secured
through judicial proceedings and failed to conform with the statutory
requirements for divorce in the State of Utah (Hilton v. Roylance, 69
P. 660, 25 Utah 129).
There is no question that the instant "divorce' failed to meet the
statutory requirements of the State of New York, since the Civil
Practice Act of that state provides that the State Supreme Court has
exclusive jurisdiction of matrimonial actions, adultery is the only
ground for absolute divorce, and the jurisdictional requirements of the
statute as to residence of the defendant, service, etc., must be met
(C.P.A. 1147; C.P.A. 1167; Rules of Civil Practice 47, 53).
We are of the opinion that the above-stated general, and
well-accepted, principles govern in the instant case. The divorce was
obtained in the State of New York. It was not obtained in a court of
competent jurisdiction in that state and under general principles of law
would not be recognized as valid in the State of New York. Since it was
invalid in the state where obtained it would not be entitled to full
faith and credit in the State of Maryland where the subsequent marriage
occurred. It follows that the marriage in issue was invalid.
The doctrine of comity would appear to have no application, since,
notwithstanding the fact that the divorce occurred in a foreign
consulate in the United States, it was not a foreign divorce, and
insofar as its recognition by the State of Maryland with respect to the
subsequent marriage, is subject only to the requirement of full faith
and credit, if valid under the laws of the State of New York, since it
was obtained in that state by a person residing therein.
Hansen v. Hansen, 8 N.Y.S.2d 655, 255 App.Div. 1016, cited by counsel
in his brief and in oral argument, does not govern on the premises. In
that case both the plaintiff and her husband were Danish subjects. The
divorce proceedings appear to have been initiated by the plaintiff
appearing at the Danish consulate in New York City. Her husband was
residing in Canada. He joined in the application for divorce, and,
pursuant to Danish law a decree of separation was granted by the
Minister of Justice. The marriage was dissolved by a Royal Decree of
divorce granted by the King of Denmark. The difference between the
facts, in the Hansen case and those in the instant case is more than one
of mere procedure, as alleged by counsel. In the Hansen case the courts
were confronted with a decree which was actually a foreign decree
entered abroad by foreign authorities of competent jurisdiction, and the
court asserted that in the absence of a showing of lack of jurisdiction,
it would be assumed that the decree was valid and would be recognized in
Denmark. It is clear that on these facts the doctrine of comity
required that the foreign decree be recognized. In the instant case, we
are confronted with no such foreign decree. The certificate before us
states that the divorce was concluded at the Office of the Royal
Consulate General of Egypt in New York, New York. As stated above, we
have found no authority in statutes or decisions which would indicate
that the State of New York, by an extension of the doctrine of comity,
would recognize such a decree entered in usurpation of its traditional
authority in matrimonial matters over persons residing within its
borders.
Counsel, in his brief and in oral argument, asserts the authority of
the Egyptian consul to grant such a decree under Egyptian law. We do
not question that he has such power, and that such a decree granted by
him would be recognized as valid in Egypt. This is a different matter
from saying that such a decree would be binding on either the New York
or Maryland courts. As we have indicated above, this would be contrary
to the weight of authority. It is concluded that the petition was
property denied. The appeal will be dismissed.
Order: It is ordered that the appeal be and the same is hereby
dismissed.
Fine -- Section 272(b) of the Immigration and Nationality Act -- Requirement of psychiatric examination.
Where an alien was given a physical examination by the carrier before foreign embarkation and was excluded by the Service under section 212(a)(4) of the Immigration and Nationality Act because afflicted with a mental defect, liability to fine under section 272(b) is not incurred if the record shows that neither the carrier nor its physician had any reason to suspect from the alien's appearance and behavior that she was other than normal mentally. The term "due diligence' as used in the statute does not contemplate that the carrier shall require every potential passenger to undergo a psychiatric examination.
BASIS FOR IMPOSITION OF FINE:
Section 272(b) -- Act of 1952 -- Alien Involved, A M S .
Discussion: This case is before us on appeal from the district
director's decision of July 15, 1954, imposing fine in the sum of $250
upon the agents for the SS. United States under section 272(b) of the
Immigration and Nationality Act.
The specific violation charged is bringing to the United States an
alien afflicted with a mental defect.
The above-named alien was one of the passengers aboard the SS.
United States when it arrived at the port of New York on January 22,
1954. The alien was in possession of a reentry permit which had been
issued to her at Detroit, Michigan, on March 31, 1952, the validity of
which had been extended to March 31, 1954. She had previously been
admitted to the United States as a war fiancee on July 24, 1949, and her
status was adjusted to that of a permanent resident on August 19, 1949.
Upon arrival at New York on January 29, 1954, the alien was examined
by surgeons of the United States Public Health Service who certified her
to be afflicted with a mental defect, inadequate personality, Class A.
She was given a special inquiry hearing as a result of which she was
excluded under section 212(a)(4) of the Immigration and Nationality Act,
based upon the mental condition for which she was certified. As she
refused to appeal to a medical board, the excluding decision was final.
During the course of the special inquiry hearing, the alien testified
that her husband died in October 1951; that in 1950 she had had sexual
relations in the United States with a man not her husband while the
latter was still living; that, after her husband's death, she also had
sexual relations with two other men during January and February of 1952;
that she left the United States in August 1952 to visit her parents in
Germany; that prior to her departure from Hamburg in January 1954 to
return to the United States, she was given a physical examination by the
carrier's doctor; that she was not given a psychiatric examination in
Hamburg but would have submitted to such examination if requested to do
so; and that if she had been asked questions about her past, she would
have answered them truthfully.
The record contains a certificate of detectability issued by surgeons
of the United States Public Health Service on April 14, 1954, certifying
that the alien's illness (Class A, mental defect, inadequate
personality) could have been detected prior to embarkation for the
United States, "had she received adequate psychiatric investigation and
examination.'
As applicable to the instant case, section 272(b) of the Immigration
and Nationality Act provides for imposition of a fine of $250 upon any
carrier bringing to the United States an alien passenger afflicted with
any mental defect (other than those enumerated in subsection (a) of said
section), unless the alien was in possession of an unexpired reentry
permit and applied for admission within 120 days of the date on which he
was last examined and admitted by the Service, or in the event the
application was made later than 120 days of such examination and
admission, if the carrier establishes to the satisfaction of the
Attorney General that the existence of such disease or disability could
not have been detected by the exercise of due diligence prior to the
alien's embarkation.
Counsel contends that no fine should be imposed herein inasmuch as it
is obvious from a review of the facts that the appellants could not have
detected the alien's mental defect by the exercise of due diligence
prior to her embarkation. Counsel states that the finding of mental
deficiency was apparently based upon the alien's sexual behavior between
1950 and 1952; that there was nothing in the alien's general appearance
and demeanor which would indicate mental deficiency; that she had
previously been admitted to the United States for permanent residence;
that the carrier's agent who issued passage to the alien had no reason
to suspect any mental defect; and that the appellants took all normal
and reasonable precautions to ascertain the admissibility of the alien,
including a medical examination by a competent physician.
Upon review of the entire record, including the transcript of the
special inquiry hearing and the report of an investigation conducted as
a result of a letter of complaint adverse to the alien, we concur with
counsel that the carrier could not have detected the alien's mental
defect by the exercise of due diligence prior to embarkation. It
appears that, without having had the benefit of the letter of complaint
and the report of investigation, neither the carrier nor its doctor
would have had any reason to suspect from the alien's appearance and
behavior that she was other than normal mentally. However, in order to
ascertain whether the alien was afflicted with any defect or disability
which would render her inadmissible to the United States, the carrier
had its doctor give the alien a physical examination. We are of the
opinion that the carrier took all precautions which would appear
necessary and reasonable in the premises to the average prudent person.
Furthermore, we agree with counsel that the term "due diligence,' as
used in the statute, does not contemplate that a carrier must require
every potential passenger to undergo a psychiatric examination.
Conceivably, the situation would be otherwise where the alien exhibits
symptoms or indications in his speech, manner or appearance that he may
be mentally unbalanced. Here, however, it is apparent from the record
that the alien displayed no such symptoms. Accordingly, we find that
the appellants have satisfactorily established that the mental defect
for which the alien was certified upon her return to the United States,
could not have been detected by the exercise of due diligence prior to
embarkation from Germany. Liability for fine, therefore, has not been
incurred.
Order: It is ordered that the appeal be and the same is hereby
sustained.
It is further ordered that fine be not imposed.
Good moral character -- Adultery -- Section 101(f)(2), Immigration and Nationality Act -- Eligibility for voluntary departure, section 244(e) of the 1952 act.
An alien who has sexual intercourse with a man whom she has ceremonially married, being ignorant of the fact that this man was already married to a third person, is not precluded from establishing good moral character under section 101(f)(2) of the Immigration and Nationality Act and may be found eligible for voluntary departure under section 244(e) of that act. (In New York, the jurisdiction where the act occurred, absence of any intent to commit a crime would be a defense in a criminal proceeding for adultery.)
CHARGE:
Warrant: Act of 1952 -- After admission as nonimmigrant visitor for
business under act of 1924 -- Failed to comply.
Discussion: This appeal relates to a 34-year-old single female
alien, a native and citizen of Colombia, and comes forward from a
decision of a special inquiry officer on March 29, 1954. The alien has
been found deportable, discretionary relief has been denied, and
deportation has been directed on the warrant charge. The sole issue
before this Board is whether voluntary departure may be granted. The
special inquiry officer has found that the alien has lived in adultery
for a period during the five years immediately preceding her application
for discretionary relief and therefore she cannot establish good moral
character during the period required by the provisions of section 244(e)
of the Immigration and Nationality Act in view of the limitations in
section 101(f)(2) of such act.
The respondent's only entry to the United States occurred at Miami,
Florida, on May 9, 1948, at which time she was admitted as a visitor for
business, a domestic. The period of temporary stay, as extended,
expired on February 9, 1949. The respondent lived with a man out of
wedlock in the United States for a period about 1951. The record does
not establish that he was married. She has a child born by that
relationship now age three years. On January 30, 1954, the respondent
was married in the City of New York to a native of Puerto Rico, citizen
of the United States. She alleges that she had no knowledge at the time
that the man she was marrying was already married; and that she entered
into the marriage contract in good faith. However, after the marriage,
she heard that the man she had married on January 30, 1954, had a wife
living. He admitted the facts in this proceeding and stated that his
prior marriage had not been terminated. It appears that as soon as the
respondent learned that she was not validly married, because her husband
and a living wife, she separated from him.
The above facts are not disputed. The question to be resolved is
whether the respondent, who alleges that she was innocent of any offense
or wrong doing at the time she entered into a ceremonial marriage on
January 30, 1954, and at the time she lived in a man and wife
relationship after that date with the man to whom she was married, had
committed adultery within the provisions of section 101(f)(2) of the
Immigration and Nationality Act. Counsel has argued that the respondent
could not have been convicted of the crime of adultery because she was
innocent of violation of any law for the reason that she did not know
she was not legally married.
In the jurisdiction of the State of New York where this respondent
lived in a man and wife relationship with a married man to whom she was
not validly married, adultery is a crime. It is interesting to note the
definition of that offense and the punishment prescribed therefor.
Section 100, New York Penal Laws: Adultery defined,
Adultery is sexual intercourse of two persons, either of whom
is married to a third person.
Section 101 -- Adultery a misdemeanor,
A person who commits adultery is guilty of a misdemeanor.
Section 102 -- Punishment for adultery,
A person convicted of a violation of this article is punishable
by imprisonment in a penitentiary or county jail, for not more
than six months or by a fine of not more than $250, or by both.
Conviction of adultery is not necessary in order to establish that
fact in deportation proceedings. We have carefully examined the New
York Penal Laws and the annotations and digests of cases relating to
adultery. We find no decision or interpretation of section 100 of the
New York Penal Laws (defining adultery) holding that the statute is
limited to married persons; or that in situations where an unmarried
person is a party to the offense and without knowledge that the act
(adultery) is being committed, the single person cannot be successfully
prosecuted. /1/ The definition of the term "adultery' in the statute
clearly embraces within its scope both parties. We have been unable to
locate a decision in the applicable jurisdiction (New York State) which
discusses the essential elements of the offense and, therefore, we
cannot readily determine whether absence of intent requires an acquittal
in a prosecution for adultery. /2/ The facts here are undisputed and
establish that respondent separated from the man she had married as soon
as she acquired knowledge that he was married to another woman. We find
that innocence is a defense in a criminal action in New York State. /3/
That the act was not voluntary is an adequate defense to a charge of
adultery (People v. Hall, 49 N.Y.S. 309).
The foregoing consideration is for the purpose of determining whether
the respondent, who concedes the commission of a sexual intercourse act
with a person whom she had ceremonially married without knowledge that
he was already married to a third person, comes within the limitations
in section 101(f)(2) of the Immigration and Nationality Act, /4/ so as
to preclude her from establishing good moral character for the purposes
of her application for relief under section 244(e) of such act. It is
our opinion that the facts and circumstances in this case (the
jurisdiction of the State of New York where the respondent's innocence
would be a defense in a criminal proceeding for adultery) require the
respondent's innocence of any illegal act, and absence of any intent to
commit a crime be recognized in determining her eligibility for
discretionary relief in this administrative proceeding. Viewing the
factual situation in the light of the standards required for good moral
character, we find that respondent measures up to those standards. /5/
Accordingly, we hold that respondent is not precluded from establishing
good moral character by the limitations in section 101(f)(2),
Immigration and Nationality Act. The appeal will sustained.
Order: It is ordered that the appeal in this case be sustained and
that the order for the deportation of the alien dated March 29, 1954, be
withdrawn and that the alien be permitted to depart from the United
States voluntarily without expense to the Government, to any country of
her 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) Section 103 of the New York Penal Laws reads:
* * * A conviction under this article cannot be had on the
uncorroborated testimony of the person with whom the offense is
charged to have been committed.
(2) Intent is a question of fact to be proved in a criminal action
(Cowley v. People, 8 Ahb.N.C. 1; affirmed 83 N.Y. 464; and People v.
Miller, 286 N.Y.S. 702). Under New York Criminal Procedure Law a
misdemeanor may be charged by filing an information describing the
offense sufficiently to notify the defendants of the nature of the crime
(People v. Le Face, 266 N.Y. 458; and People v. McCarthy, 260 N. Y.
358).
(3) Section 389, Code of Criminal Procedure of New York, reads:
DEFENDANT PRESUMED INNOCENT, UNTIL CONTRARY PROVED. IN CASE OF
REASONABLE DOUBT, ENTITLED TO ACQUITTAL. A defendant in a
criminal action is presumed to be innocent, until the contrary be
proved; and in case of a reasonable doubt whether his guilt is
satisfactorily shown, he is entitled to an acquittal.
In Cowley v. People, supra, which was a criminal indictment for acts
endangering the health of a child, it was decided that where an act is
committed (or an omission made), being in itself illegal, the burden
rests on the accused to establish that he acted honestly and without any
intent to commit a crime.
(4) Section 101, Immigration and Nationality Act, provides in part:
(f) For the purposes of this Act --
No person shall be regarded as, or found to be, a person of
good moral character who, during the period for which good moral
character is required to be established, is, or was -- * * *
(2) one who during such period has committed adultery.
(5) Good moral character is defined by the judiciary to be that which
measures up to the standard of average citizens of the community in
which the person lives (Petition of De Leo, 75 F.Supp. 896 (Pa.); and
Petition of Rudder et al, 159 F.(2d) 695 (N.Y.)). We have held that
good moral character is not moral excellence. It is a concept of a
person's natural worth derived from the sum total of all his activities
in the community (Matter of B , 1, I. & N. Dec. 611). A showing of good
moral character is not barred because of certain extramarital acts
(Matter of C , 3, I. & N. Dec. 833). In determining whether
discretionary relief should be granted in a particular case, all of the
circumstances involved must be considered (Matter of V I , 3, I. & N.
Dec. 571, B.I.A., March 31, 1949).
Warrant of deportation -- Reinstatement of -- Section 242(f) of Immigration and Nationality Act.
Section 242(f) of the Immigration and Nationality Act specifically includes deportations which may have occurred before its enactment and applies where the criminal charge under the Immigration Act of 1917 upon which respondent was previously deported corresponds to a charge which may be found in subsection 241(a)(4) and is one of the charges enumerated in subsection 242(e) of the 1952 act.
CHARGE:
Warrant: Act of 1952 -- Entry after deportation without permission.
Deportation order based on charge in section 242(e) of the act, indecent
liberties.
Discussion: This case comes forward on appeal from an order of a
special inquiry officer dated June 23, 1954, directing that a warrant of
deportation which had been issued in respondent's case on January 30,
1937, be reinstated and he be deported from the United States thereunder
in the manner provided by law.
The respondent is a native and citizen of Canada, age 54, single, who
was originally admitted to the United States for permanent residence on
June 3, 1924. On January 30, 1937, a warrant was issued for his
deportation on the grounds that he was subject to deportation under the
Immigration Act of 1917 as a person likely to become a public charge at
the time of his entry; that he admitted having committed a crime
involving moral turpitude prior to entry, to wit: indecent liberties
with a female; and that he had been sentenced to imprisonment of one
year or more because of a conviction of a crime involving moral
turpitude committed within five years after entry, to wit: indecent
liberties with a female. About a year or two subsequent to the issuance
of the warrant of deportation he paid a visit to Canada for a period of
two or three days.
Section 16854, Title 23, Compiled Laws of Michigan (1929), which
covers the crime of taking indecent liberties with a female under
sixteen was incorporated into section 28.3688, Title 28, Michigan
Statutes Annotated (1938). We have held that a violation of section
28.3688 is a crime involving moral turpitude (Matter of P , A-3809544,
April 26, 1946). The respondent was, therefore, properly found
deportable on the criminal charge in the original deportation
proceedings.
Counsel, by brief and oral argument on appeal, contends (1) that the
respondent did not deport himself when he left the United States after
the issuance of the warrant of deportation; and (2) that the order of
deportation became void when the Immigration and Nationality Act went
into effect and that consequently the present proceedings which are
based on the warrant are also void. He, therefore, requests that the
proceedings be terminated.
Section 1(b) of the Act of March 4, 1929, which was in effect at the
time of the respondent's departure while the order of deportation was
outstanding, provided in pertinent part that: "* * * any alien ordered
deported * * * who has left the United States shall be considered to
have been deported in pursuance of law * * *.'
It is clear, therefore, that the respondent was deported when he
departed to Canada on a visit.
Subsection 242(f) of the Immigration and Nationality Act provides
"Should the Attorney General find that any alien has unlawfully
reentered the United States after having previously departed or been
deported pursuant to an order of deportation, whether before or after
the date of enactment of this Act, on any ground described in any of the
paragraphs enumerated in subsection (e), the previous order of
deportation shall be deemed to be reinstated from its original date and
such alien shall be deported under such previous order at any time
subsequent to such reentry.' Emphasis supplied.
It is to be noted that this subsection specifically includes
deportations which may have occurred before the enactment of the
Immigration and Nationality Act and consequently counsel's contention
that the original order of deportation became void has no basis.
Since one of the criminal charges under the Immigration Act of 1917
upon which the respondent was previously deported corresponds to a
charge which may be found in subsection 241(a)(4) of the Immigration and
Nationality Act, and is one of the charges enumerated in subsection
242(e) of the latter act, his case falls squarely with the provisions of
section 242(f) of said act. The special inquiry officer, therefore,
properly reinstated the previous warrant of deportation and the appeal
will be dismissed.
Order: It is ordered that the appeal be dismissed.
Student -- Proper deportation charge under Immigration and Nationality Act when admitted under section 4(e) of the Immigration Act of 1924 -- Savings clause does not permit charge under the 1924 act after December 24, 1952, but does preserve status acquired thereunder.
(1) A student who was admitted to the United States in 1946 as a nonquota immigrant under section 4(e) of the Immigration Act of 1924 and who is not maintaining status is properly charged under the Immigration and Nationality Act with being deportable under section 241(a)(2) as one who is in the United States in violation of that act or any other law of the United States; or under section 241(a)(9) as one who was admitted as a nonimmigrant who has failed to maintain the nonimmigrant status in which he was admitted.
(2) The definition of "student' as a nonimmigrant in the Immigration and Nationality Act supersedes the terminology of the 1924 act which classified him as a "nonquota immigrant' and the savings clause of the former act continues the status of student regardless of the technical category into which students may fall.
CHARGES:
Warrant: Act of 1924, as continued by section 405 of the Immigration
and Nationality Act -- Student, remained longer.
Discussion: Respondent is 31 years old, male, a native and citizen
of Lebanon, whose only entry into the United States occurred on February
28, 1946, at which time he was admitted as a student under the
provisions of section 4(e) of the Immigration Act of 1924. He was
granted extensions of stay until August 2, 1952. He has been in
unauthorized employment since that time. The special inquiry officer
found him deportable on the charge stated in the warrant of arrest. He
denied his application for suspension of deportation and granted him
voluntary departure. The alien appeals to this Board from that
decision.
This case presents the question, what is the proper provision of law
under which to lodge a charge in deporting an alien who entered the
United States as a student under section 4(e) of the 1924 act? The
charge set forth in the warrant of arrest is that respondent is in the
United States in violation of the Immigration Act of 1924, as amended,
and section 405 of the Immigration and Nationality Act, in that he has
failed to comply with the conditions of the status granted him at the
time of his admission. When this warrant of arrest was issued on March
25, 1954, the Immigration Act of 1924, as amended, was no longer in
effect, having been superseded by the Immigration and Nationality Act on
December 24, 1952. It was not appropriate to lodge a charge under the
1924 act after December 24, 1952. Nor is the charge saved by section
405 of the Immigration and Nationality Act, the savings clause section.
That section saves warrant proceedings, rights, actions, liabilities,
etc., in existence "at the time this (Immigration and Nationality) Act
shall take effect.' The savings clause did not operate to keep alive the
1924 act, which clearly had been repealed by Congress. New proceedings
must be based on the deportation provisions of the supplanting statute.
There are two appropriate provisions of the Immigration and
Nationality Act under which to lodge a charge in this type of case.
First is section 241(a)(2), which provides for the deportation of any
alien who "is in the United States in violation of this Act or in
violation of any other law of the United States.' Respondent is in the
United States in violation of the student status in which he was
admitted. Further, his intent is to remain permanently and he has never
been lawfully admitted for permanent residence under this or any other
law. Therefore, he is in the United States "in violation of this Act,'
as set forth in section 241(a)(2).
The charge might have been lodged under section 241(a)(9) of the 1952
act which provides for the deportation of one who "was admitted as a
nonimmigrant and failed to maintain the nonimmigrant status in which he
was admitted.' Respondent was admitted to the United States under
section 4(e) of the 1924 act which classified students as "nonquota
immigrants.' /1/ The result of section 101(a)(15)(F) of the 1952 act is
that a student is a "nonimmigrant.' /2/ The subsection defining
"nonquota immigrants' (section 101(a)(27)) does not now include
students.
It is our opinion, however, that respondent can be found deportable
under section 241(a)(9) of the 1952 act. /3/ The definition section of
the act provides that a student shall be a "nonimmigrant,' and this
definition supersedes the terminology of the 1924 act which classified
him as a "nonquota immigrant.' The savings clause provision of the
Immigration and Nationality Act continues the status of "student,' /4/
regardless of the technical category into which students may fall.
Since students are now "nonimmigrants,' we find that the term
"nonimmigrants' under section 241(a)(9) includes those admitted to the
United States in student status under the 1924 act, regardless of how
they were then classified. Therefore, an appropriate charge would have
been that after admission as a student under section 4(e) of the
Immigration Act of 1924, as amended, respondent failed to maintain the
conditions of the status in which he was admitted, and is deportable
under section 241(a)(9) of the Immigration and Nationality Act.
The record must be reopened in order that an appropriate charge may
be lodged.
Order: It is ordered that the record be reopened in order that the
appropriate charge may be lodged in accordance with the foregoing
opinion.
(1) Immigration Act of 1924, Sec. 4. When used in this Act the term
"nonquota immigrant' means -- * * *
(e) An immigrant who is a bona fide student * * *.
(2) Section 101(a) As used in this Act -- * * *
(15) The term "immigrant' means every alien except an alien who
is within one of the following classes of nonimmigrant aliens -- *
* *
(F) an alien having a residence in a foreign country which he
has no intention of abandoning, who is a bona fide student
qualified to pursue a full course of study and who seeks to enter
the United States temporarily and solely for the purpose of
pursuing such a course of study at an established institution of
learning or other recognized place of study in the United States,
particularly designated by him and approved by the Attorney
General after consultation with the Office of Education of the
United States, which institution or place of study shall have
agreed to report to the Attorney General the termination of
attendance of each nonimmigrant student, and if any such
institution of learning or place of study fails to make reports
promptly the approval shall be withdrawn.
(3) Section 241(a) of the 1952 act provides in pertinent part:
Any alien in the United States * * * shall, upon the order of
the Attorney General, be deported who -- * * *
(9) 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 * * *.
(4) The savings clause, section 405(a) of the 1952 act provides in
pertinent part:
Nothing contained in the Act, unless otherwise specifically
provided therein, shall be construed to * * * affect * * * any
status, * * * existing, at the time this Act shall take effect * *
*.
Pardon -- Crimes involving moral turpitude -- Conviction under Mann Act.
(1) A legislative pardon is not effective to avert deportation on a charge under section 241(a)(4) of the Immigration and Nationality Act. 4,1(2) An arrest as a suspicious person and "bunco' in Pittsburgh, Pa., followed by a Magistrate's Order in 1924 sentencing respondent to pay a fine of $100 or serve 60 days in the workhouse is not a conviction for larceny.
(3) If the violation of a law under any and all circumstances constitutes moral turpitude, then all convictions under the law involve moral turpitude. But if the law punishes acts which do not involve moral turpitude, as well as those which do, then no conviction under that law involves moral turpitude. (See Matter of K , A-8031641, 4, I. & N. Dec. 490, concerning divisible or separable statutes.)
(4) Where an indictment charges several acts, any one of which would be sufficient to support the general verdict of guilty rendered by the jury, the inference most favorable to the alien must be drawn.
(5) Simple fornication is not a crime involving moral turpitude.
(6) A conviction on July 30, 1942, for violation of the Mann Act (18) U.S.C.A. 398, now 2421) based upon an indictment charging that respondent transported a female with intent to "induce, entice and compel' her to engage "in illicit sexual intercourse with him' is not one for a crime involving moral turpitude.
(7) An alien who engages in extra-marital relations with a willing woman over a ten-day period is not deportable as one who has procured or attempted to procure a person for the purpose of prostution or for any other immoral purpose.
(8) The words "other immoral purpose' in section 212(a)(12) of the Immigration and Nationality Act refer to acts of a like character with prostitution.
CHARGES:
Warrant: Act of 1952 -- Convicted of two crimes involving moral turpitude, to wit: (1) violation of White Slave Traffic Act; (2) fraudulent conversion, larceny, receiving stolen goods and conspiracy to steal; and (3) larceny.
Act of 1952 -- Procurer or importer of persons for immoral purpose.
Discussion: The case is before us by certification.
The respondent is a 57-year-old single male, a native and citizen of
Italy who has resided in the United States since his lawful admission
for permanent residence on June 4, 1914.
The special inquiry officer found the respondent not deportable on
either of the grounds stated above and ordered termination of
proceedings. The Commissioner of Immigration and Naturalization opposes
this action and asks that the respondent be ordered deported on each of
the grounds stated above.
Deportation of the respondent on the first charge is sought under
that portion of section 241(a)(4) of the Immigration and Nationality
Act, 8 U.S.C.A. 1251(a)(4), which makes 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, * * *.' The
Service is of the opinion that respondent has been convicted of crimes
involving moral turpitude on three occasions. The special inquiry
officer found the evidence established conviction of only one such crime
-- that being the crime summarized after numberal (2) in the caption.
It is the one for which respondent was convicted in Pennsylvania in 1926
on two indictments charging four offenses -- fraudulent conversion;
larceny; receiving stolen goods; and conspiracy to steal. As a result
of the conviction, the respondent received a sentence of one year. He
served this sentence and thereby received a legislative pardon for the
crimes. There is a question as to whether he was convicted for all four
offenses, and if not, for which particular offense or offenses. The
issue is not important. Even if he had been convicted for all four
offenses, it would, for deportation purposes, have been regarded as
conviction for one crime since all the offenses were based upon actions
arising from a single scheme of criminal misconduct occurring on May 29,
1925, when respondent appropriated $1800 belonging to M P . Conviction
for any of the offenses involves moral turpitude.
Counsel is of the opinion that this conviction cannot be the basis
for deportation proceedings because of the legislative pardon respondent
received after serving his sentence. We have previously considered a
similar contention and ruled that while a legislative pardon, under the
law previous to the Immigration and Nationality Act of 1952, had been
effective to avert deportation, one who held such a pardon and was
therefore, prior to the Immigration and Nationality Act, immune from
deportation, could nevertheless be deported under the Immigration and
Nationality Act which specifically provides that a pardon to avert
deportation must be issued by the President of the United States or by
the Governor of any of the several States -- a provision we have held is
retroactive (Matter of R , E-080924, 5, I. & N. Dec. 612; section
241(b), Immigration and Nationality Act, 8 U.S.C. A. 1251(b)).
For the second of the two convictions of crime involving moral
turpitude which must be found to exist before an alien is deportable,
the Service relies upon a Magistrate's Order in 1924 fining respondent
$100 or imprisonment for 60 days in the workhouse in Pittsburgh
following an arrest as a suspicious person and "bunco' in Pittsburgh,
Pennsylvania, on June 3, 1924. The Service contends that this incident
resulted in respondent's conviction for the crime of larceny -- the
crime set forth after numeral (3) in the caption. The special inquiry
officer concluded that the Service had failed to bear its burden of
establishing that there had in fact been a conviction of larceny. The
matter has been fully discussed by him on pages 3 and 7 of his order.
We concur in his finding. We note also counsel's uncontradicted
statement that "bunco' is not a crime in Pennsylvania and that larceny
is not a minor offense which may be disposed of summarily by a
magistrate. The matter requires no further discussion. The conviction
in question cannot, therefore, serve as a ground for deportation.
Finally, the Service relies upon respondent's conviction in 1942 for
violation of the Mann Act as the second of the two crimes involving
moral turpitude which must be found to exist to render respondent
subject to deportation. If it be found, as was found by the special
inquiry officer, that the conviction does not involve moral turpitude,
then it must be concluded that this record establishes the conviction of
only one crime involving moral turpitude and the charge based on the
criminal grounds must necessarily fail.
The Mann Act conviction occurred on July 30, 1942, when respondent
was found guilty of the "offenses' charged in count one of a three count
indictment. He was sentenced to six months' imprisonment and fined
$1500. Count one which was based on 18 U.S.C.A. 398, now 2421, charges
respondent with aiding and assisting in obtaining transportation and in
transporting from New Jersey to Florida, one L A , "with intent and
purpose * * * to induce, entice and compel * * * (her) to engage in an
immoral practice, to wit, the practice of illicit sexual intercourse
with him, * * *.' We must determine whether this conviction involves
moral turpitude. He was found not guilty on counts two and three. /1/
The special inquiry officer held that moral turpitude was not
involved in the conviction. He found that the fundamental crime charged
was the practice of illicit sexual intercourse between parties whom
there was nothing to show were married and that the offense in essence
amounted to the commission of fornication, a crime not involving moral
turpitude. This Board has previously ruled in a similar manner, in a
case not reported and not available to the special inquiry officer
(Matter of K , 56137/320 (1944)).
The Service argues that Matter of K , (supra), was incorrectly
decided. It is argued that the inherent nature of the crime spelled out
by the statute is such as to require a finding of moral turpitude in
every conviction. The Service theory is based upon the belief that the
phrase in the indictment charging the commission of "other immoral
practice' (which here the Service equates with "other immoral purpose'),
requires a finding of action that amounts to more than simple
fornication before a conviction can be obtained. In other words, the
conduct must be in the nature of prostitution, concubinage, seduction,
or corruption from virtue to obtain a conviction. Furthermore, it is
urged that fornication should be found to be a crime involving moral
turpitude.
Counsel argues that the statute, by its inherent nature, does not
define a crime necessarily involving moral turpitude; that respondent
was not convicted for transporting a woman for purposes of prostitution
or commercial vices; and that the specific act of which he was
convicted amounts to no more than a conviction for inducing a woman to
commit an act or acts of fornication, a crime not involving moral
turpitude. Furthermore, counsel urges that the offense is less
blameworthy than simple fornication since the gist of the offense was
assisting the woman to obtain transportation and it was unnecessary to
establish that there had actually been sexual relations.
In view of the Commissioner's urgent representations that the Matter
of K , supra, was incorrectly decided, and that the crime in question
involves moral turpitude, we shall deal fully with the problem.
In determining whether a crime involves moral turpitude, the courts
have given us certain standards which we must follow (United States ex
rel. Mylius v. Uhl, 203 Fed. 152 (S.D. N.Y., 1913), affd. 210 Fed. 860
(C.C.A. 2, 1914); United States ex rel. Robinson v. Day, 51 F.(2d) 1022
(C.C.A. 2, 1931); United States ex rel. Manzella v. Zimmerman, 71
F.Supp. 534, (E.D. Pa., 1947); United States ex rel. Teper v. Miller,
87 F.Supp. 285 (S.D. N.Y.); Vidal Y Planas v. Landon, 104 F.Supp. 384
(S.D. Calif., 1952); 37 Op.Atty.Gen. 293; Matter of S , A-5702971, 2,
I. & N. Dec. 353, 357, 361; Matter of E , 56063/394, 2, I. & N. Dec.
134, 145).
The test requires us to first determine what law or specific portion
thereof has been violated (United States ex rel. Teper v. Miller, supra,
and cases cited there), and then, without regard to the act committed by
the alien, to decide whether that law inherently involves moral
turpitude (United States ex rel. Mulius v. Uhl, supra); that is,
whether violation of the law "under any and all circumstances,' would
involve moral turpitude (United States v. Zimmerman, supra; Matter of S
, supra, pp. 357, 361; Matter of E , supra, 145). If we find that
violation of the law under any and all circumstances involves moral
turpitude, then we must (United States ex rel. Teper v. Miller, supra),
conclude that all convictions under that law involved moral turpitude
although the "particular acts evidence no immorality' (United States ex
rel. Mylius v. Uhl, supra). If, on the other hand, we find that the law
punishes acts which do not involve moral turpitude as well as those
which do involve moral turpitude, then we must rule that no conviction
under that law involves moral turpitude, although in the particular
instance conduct was immoral (United States ex rel. Robinson v. Day,
supra). /2/
To determine what law has been violated, we may peruse the
indictment, conviction and sentence (United States ex rel. Teper v.
Miller, supra). These documents reveral that respondent was convicted
under that portion of 18 U.S.C.A. 398 which reads as follows, except for
the matter in parenthesis which is a part of the statute, but not found
in the indictment:
Any person who shall knowingly * * * aid or assist in obtaining
transportation for, or in transporting, in interstate * * *
commerce, * * * any woman or girl * * * with the intent and
purpose to induce, entice, or compel such woman or girl (to become
a prostitute or to give herself up to debauchery, or) to engage in
any other immoral practice * * * shall be deemed guilty of a
felony, and upon conviction thereof shall be punished by a fine
not exceeding $5,000, or by imprisonment of not more than five
years, or by both such fine and imprisonment, * * *.
Section 398 of Title 18 U.S.C.A., 1926, sets forth several immoral
acts -- prostitution, debauchery, other immoral purposes or practices;
several ways by which transportation of a female to engage in immoral
acts can be effected -- aiding in transporting, assisting in
transporting, transporting, or causing to be transported; and several
intents -- to make a female a prostitute, to debauch, to commit an
immoral act with her; to induce, entice or compel her, to be a
prostitute, to engage in debauchery, or to commit an immoral act.
Count one sets forth nine ways in which the statute could have been
violated. Three acts are charged in the conjunctive as to
transportation; and three are charged in the conjunctive as to intent.
As to transportation, respondent was charged with, (A) aiding in
obtaining transportation, and (B) assisting in obtaining transportation,
and (C) transporting in interstate commerce. As to intent, he was
charged with (1) inducing, and (2) enticing, and (3) compelling the
performance of the immoral act. /3/ Any one combination of the lettered
acts with those preceded by a numeral would have been sufficient to
establish a violation of section 398, i.e., (A) and (2), aiding in
obtaining transportation with intent of enticing the performance of the
immoral act would be an offense, etc. (cases cited in footnote 3).
Even though violation of section 398 could have been accomplished
under more than one of the conditions specified in the act, only one
violation results, and one cannot be convicted under section 398 on two
counts charging the same transportation of the same woman in one count
for the purpose of prostitution and in the other for the purpose of
illicit intercourse. Conviction and punishment can be had on only one
count /4/ (Roark v. United States, 17 F.(2d) 570 (C.A. 8, 1927); Malaga
v. United States, 57 F.(2d) 822 (C.A. 1, 1932); Caballero v. Hudspeth,
114 F.(2d) 545 (C.A. 10, 1940); Blain v. United States, 22 F.(2d) 393
(C.A. 8, 1927); Mellor v. United States, supra; United States v.
Lewis, 110 F.(2d) 460, 462 (C.A. 7, 1940), cert. denied 310 U.S. 634.
But see United States v. Fleenor, 177 F.(2d) 485 (C.A. 7, 1949), which
does not discuss cases which are apparently contrary; and Malaga v.
United States, supra, which uses language indicating there is more than
one offense under section 398, but which terms a broad indictment
similar to that herein as defining one offense. (United States v.
Lewis, supra, 462, and Mellor v. United States, supra, also characterize
an indictment similar to that herein as defining one offense under
section 398)).
It is clear, therefore, that respondent was convicted of only one
offense. What was that offense? It seems of little moment whether
respondent was convicted for the act or acts of (1) aiding in obtaining
transportation, or (2) assisting in obtaining transportation, or (3) in
transporting the female. However, it might be of importance if he were
convicted for planning the immoral act with the intent to compel, rather
than induce or entice its commission. Whether such a conviction is more
culpable in morals than one for inducing the performance of the act, we
need not decide, for we conclude that the conviction involved must be
considered to have been for the offense of transporting a female with
the intent to induce or entice her to engage in the immoral practice
represented by illicit intercourse. We reason as follows.
Legally, the count on which respondent was indicted creates only one
offense. The offense could have been committed by any one of the nine
acts set forth in the count. It was necessary to find only the
existence of one act to obtain a conviction. The jury rendered a
general verdict of guilty. We cannot go behind the record to determine
what specific issues were presented to the jury and what specific act or
acts they found to exist (United States ex rel. Teper v. Miller, supra).
Since the verdict was a general one and did not specify the act or acts
on which it rested, it cannot be determined that respondent was not
convicted for the acts which do not relate to compelling (Stromberg v.
California, 283 U.S. 359, 367-370, 75 L.Ed. 1117; Terminiello v.
Chicago, 337 U.S. 115, 93 L.Ed. 1131). The finding that respondent was
guilty of the "offenses' on count one, was of course surplusage, for
there is only one offense. (Even if this finding could be given weight,
it is meaningless for the purposes of this discussion, for it may have
referred to any two or more of the six acts set forth which do not
involve the intent "to compel.') Compulsion is not a material element of
the crime (cases cited infra). The burden of establishing that
conviction was for a particular act is upon the Government. On this
record it cannot be found that the transportation was for "compelling'
the woman to engage in unlawful sexual intercourse. Because of these
facts, we are not justified in drawing the inference most unfavorable to
the alien. We must in fact draw that most favorable to him. We must
assume that he was convicted for transportation for the purpose of
inducing or enticing the commission of the act.
Does the crime we have defined in this case inherently involve moral
turpitude? If we find that situations not involving moral turpitude are
punishable by the phrases with which we are concerned, then it becomes
our duty to find that the crime defined does not involve moral turpitude
(Matter of S , A-5702971, 2, I. & N. Dec. 361).
While the primary purpose of the Mann Act was to deal with white
slavery, the statute "enumerates the prohibited acts in broad language
capable of application beyond that indicated by the legislative framers'
(Mortensen v. United States, 322 U.S. 369, 377, 88 L.Ed. 1331). There
can, therefore, be conviction where the elements of commercial vice or
pecuniary motive are absent (Caminetti v. United States, 242 U.S. 470,
61 L.Ed. 442; United States v. Reginelli, 133 F.(2d) 595 (C.A. 3,
1943), cert. denied 318 U.S. 783). The offense is completed at the
moment of transportation across state lines, the necessary intent or
purpose being present (Neff v. United States, 105 F.(2d) 688 (C.A. 8,
1939)). It is not necessary that the immoral act be completed or
attempted (United States v. Brand, 229 Fed. 847 (S.D. N.Y., 1916)). It
is not necessary to establish that the female was seduced from virtue;
that she was corrupted; or that she has been previously chaste. The
statute is not an anti-seductive one and it only incidentally concerned
the character for chastity or unchastity of those transported (Pine v.
United States, 135 F.(2d) 353 C.A. 5), cert. denied 320 U.S. 740, 88
L.Ed. 439; see United States v. Mellor, supra). Lack of consent is not
an element. "Congress set out in the Mann Act to deal with cases which
frequently, if not normally, involve consent and agreement on the part
of the woman to the forbidden transportation' (Gebardi v. United States,
287 U.S. 112, 72 L.Ed. 206; Cleveland v. United States, 329 U.S. 14, 91
L.Ed. 12; Miller v. United States, 95 F.(2d) 492 (C.A. 9); Morrow v.
United States, 201 F.(2d) 363 (C.A. 5); United States v. Mellor, supra;
United States v. Jamerson, 60 F.Supp. 281 (N.D. Iowa, 1944); Burgess
v. United States, 294 Fed. 1002 (1924); United States v. Williams, 55
F.Supp. 375 (D.C. Minn., 1944)). A consideration of all the cases
makes it quite clear that the crime defined by the language with which
we are concerned can be transportation with the intent to induce the
commission of a simple act of fornication -- an "isolated noncommercial
venture based on impulse and reciprocating passion' (United States v.
Jamerson, supra, pp. 281, 284; United States v. Fleenor, supra, p. 484;
Flrod v. United States, 266 Fed. 55 (C.A. 6, 1920); Johnson v. United
States, 215 Fed. 679 (C.A. 7, 1914); Sloan v. United States, 287 Fed.
91 (C.A. 8, 1923); Qualls v. United States, 149 F.(2d) 891 (C.A. 5,
1945); Neff v. United States, 105 F.(2d) 688 (C.A. 8, 1939); Carey v.
United States, 265 Fed. 515 (C.A. 8, 1920)). The cases cited by the
Service which would indicate that more than an act of fornication is
required are not authoritative on the issue.
Not every violation of law involves moral turpitude. Moral turpitude
is found in those acts or omissions which are so far "contrary to the
moral law, as interpreted by the general moral sense of the community,
that the offender is brought to public disgrace, is no longer generally
respected, or is deprived of social recognition by good living persons'
(Matter of D , 56075/273, 1, I. & N. Dec. 190, 194). Ordinarily, moral
turpitude is not found in conduct, which before it was made punishable
as a crime, was not generally regarded as morally wrong, or as offensive
to the moral sense of the community (Coykendall v. Skrmetta, 22 F.(2d)
120 (C.A. 5, 1927)).
Does fornication involve moral turpitude? It is necessary to
determine this because if fornication, a crime which may be punished
under the language of the indictment with which we are concerned, does
not involve moral turpitude, then it becomes our duty to rule that the
conviction herein was not a crime inherently involving moral turpitude.
Fornication is defined as illicit sexual intercourse (37 C.J.S. 117).
Administratively, it has uniformly been held that fornication does not
involve moral turpitude. The Solicitor of Labor, in a memorandum dated
April 29, 1926, stated, "It can scarcely be maintained logically that
simple fornication manifests on the part of its perpetrators such
personal depravity or baseness as warrants the holding that it is a
crime which involves moral turpitude.' We have been unable to discover
any departure from this view (Matter of D , supra; Matter of K , supra;
see Matter of O , A-3889600, 2, I. & N. Dec. 840).
Fornication -- unlawful or illicit sexual intercourse -- was not
punishable at common law unless it was accompanied by public acts of
indecency (37 C.J.S. 117; L.R.A., 1916, C. 653). Today, fornication is
not a criminal offense in the absence of statutory change (37 C.J.S.
119). Some states have not made the statutory change and "occasional
illicit intercourse' is not a crime in such states (Warner v. State of
Indiana, 202 Ind. 479, 175 N.E. 661, 74 A.L.R. 1357; United States ex
rel. Huber v. Sibray, 178 Fed. 144 (C.C., Pa., 1910), reversed on other
grounds 185 Fed. 401 (C.A. 3); Ex parte Rocha, 30 F.(2d) 823 (S.D.
Tex., 1929)). In some states there have been enacted statutes which
punish fornication only if it be committed by parties dwelling together
in the same place in the manner of husband and wife for some period of
time (37 C.J.S. 121; Warner v. State of Indiana, supra); Ex parte
Rocha, supra). Elsewhere, it may be a crime only if committed between
relatives so that it amounts to incest (State v. Manley, 74 A. 231, 82
Vt. 556).
The Service request that we find fornication is a crime involving
moral turpitude, is based upon the inability to find court cases holding
that fornication does not involve moral turpitude.
No court in recent years has directly ruled upon whether fornication
is a crime involving moral turpitude (the language in Pollard v. Lyon,
91 U.S. 225, 23 L.Ed. 308 (1875), is dicta and, as far as we know, has
not been relied upon by any Federal court); however, the courts have,
in many instances where fornication was involved, taken action which is
consistent only with a finding that fornication did not involve moral
turpitude.
This conclusion follows from the fact that one who has committed an
act involving moral turpitude is ordinarily denied naturalization on the
ground that good moral character has not been established (In re Paoli,
49 F.Supp. 128; Petition of Nybo, 34 F.(2d) 161, affd. 42 F.( 2d) 727
(C.A. 6); In re Bookschnis, 61 F.Supp. 751 (D.C. Oregon); Ralich v.
United States, 185 F.(2d) 784 (C.A. 8)). Both in determining what
constitutes good moral character and whether a crime involves moral
turpitude, judgment is based upon the court's determination as to what
is the generally accepted moral convention current at the time (United
States v. Francioso, 164 F.(2d) 163 (C.A. 2); In re Markiewicz, 90
F.Supp. 191 (W.D. Pa.); Repouille v. United States, 165 F.(2d) 152
(C.A. 2)). Courts have found to be persons of good moral character,
individuals who have committed illicit sexual acts despite the
occurrence of these acts in the periods during which good moral
character was required to be established. Thus, in Schmidt v. United
States, 177 F.(2d) 450 (C.A. 2), the court held that one who engaged in
sexual intercourse with single and unmarried women on occasions --
conduct that was "concupiscent and promiscuous, but not adulterous,' did
not engage in conduct that would cause the "common conscience' of man to
hold the acts deprived him of good moral character (see also Petition of
R , 56 F.Supp. 969 (D.C., Mass.); United States v. Rubia, 110 F.(2d) 92
(C.A. 5); Application of Murra, 178 F.(2d) 670 (C.A. 7); United States
v. Manfredi, 168 F.(2d) 752 (C.A. 3); United States v. Palombella, 168
F.(2d) 903 (C.A. 3)). /5/ Furthermore, it is of some importance to note
that under the Immigration and Nationality Act, Congress for the first
time set up standards of good moral character. The commission of
adultery was listed as requiring a finding that good moral character was
lacking. No mention was made of fornication. As pointed out by
counsel, it would be most incongruous for an act of illicit sexual
intercourse on the part of an unmarried alien to be regarded as a crime
involving moral turpitude and the basis for deportation when one who
committed such an act could be granted the priceless gift of United
States citizenship.
It thus appears that the mores of the community do not to this day
require punishment of furtive illicit intercourse or private immoral
indulgence of the individual. It would seem that moral turpitude should
not be attached to the commission of an act which though immoral is not
even regarded as a crime in some communities, and is one which the
courts have held would not cause the "common conscience' to strip its
perpetrator of good moral character.
We conclude therefore the under the language of the law which
resulted in respondent's indictment and conviction, convictions for
simple fornication are possible; that simple fornication does not
involve moral turpitude; and that the language therefore does not
inherently define a crime involving moral turpitude.
The Service argues that if it be concluded that fornication is a
crime not involving moral turpitude, the instant conviction would still
be one involving moral turpitude because respondent is charged with the
practice of the illicit sexual act and the repetition of the act clothes
it with the moral turpitude that a simple act of fornication does not
have. No authority is cited for this view. The Service used the word
"practice' interchangeably with "purpose' (supra). The courts have done
likewise (Carey v. United States, 265 Fed. 515, 516 (C.A. 8); United
States v. Lewis, 110 F.(2d) 460 (C.A. 7), cert. denied 310 U.S. 634, 84
L.Ed. 1404). No special significance need be given the word "practice.'
It requires no deeper meaning than that of "act' or "type of conduct.'
It does not necessarily imply a series of acts. To obtain conviction,
proof that transportation was with the intent to engage in one act of
fornication would have been sufficient. Furthermore, the act specified
herein is "the practice of illicit sexual intercourse.' If the act be
one of simple fornication, repetition of the act with the same woman
would not make the act more or less base.' "One, two, or a half dozen
acts of illicit intercourse would not of themselves constitute
concubinage' (United States v. Zes Cloya, 35 Fed. 493 (S.D. Ala.,
1888)). The crime for which respondent was convicted does not involve
moral turpitude. The Service has failed to establish that he has been
convicted of two crimes involving moral turpitude. The charge must
therefore fall.
The second charge is based on sections 241(a)(12) and 212(a)(12) of
the Immigration and Nationality Act (8 U.S.C.A. 1251(a)(12) and 1182(
a)(12)). This matter is discussed by the special inquiry officer on
pages 8 and 9 of his order. Briefly, the charge is that after his
entry, the respondent behaved in such a manner as to make him a member
of a class excluded from entering the United States. This excludable
class is defined in section 212(a)(12). As attempt is made to apply the
section to this case, it relates to a person who has "procured or
attempted to procure or to import, prostitutes or persons for the
purpose of prostitution or for any other immoral purpose.' Is respondent
one who attempted to procure a person for the purpose of prostitution or
for any other immoral purpose? We find he is not such a person. To
sustain the second charge, it is not necessary to establish that there
has been a conviction for any violation of law. Respondent's conviction
under the Mann Act was therefore merely incidental. However, the
incident which forms the basis for the conviction is relied upon as
establishing that the respondent procured or attempted to procure or
import a prostitute or person for purposes of prostitution or for other
immoral purposes. Here it becomes necessary to examine the facts.
The facts will be taken from the summary by the United States Circuit
Court of Appeals for the Third Circuit in United States v. Reginelli,
133 F.(2d) 595 (C.C.A. 3, 1943), cert. denied 318 U.S. 783, which
considered respondent's appeal from the Mann Act conviction.
Respondent, a resident of New Jersey, left for a visit to Miami,
Florida, having apprised the woman in the case, also a resident of New
Jersey, of his contemplated trip. En route, he sent her a telegram in
endearing terms and upon arriving in Miami, he again telegraphed her in
the like vein and informed her of his arrival. The next day, he
telegraphed her giving his hotel address, expressing his wish that she
were there and stating that he would call her by telephone that evening,
which he did. From then until February 2, 1942, he called her by
telephone four additional times and talked with her on each occasion.
One of the matters discussed was the prospect of her going to Miami
while he was there. Acting in pursuance of an understanding arrived at
with respondent by phone, the woman made the trip from New Jersey to
Florida by plane upon a ticket which respondent himself had procured and
paid for as he had told her he would do. Upon her arrival at the
airport in Miami, she was met by respondent and with him rode in his
automobile to his hotel in Miami Beach. She went to his room in the
hotel and continued to live there during the whole of her ten-day
sojourn in Miami. During that time she and respondent occupied the same
bed in his room and had sexual relations.
These facts in the main were established by testimony of the woman.
She also testified that the idea of her going to Florida to join the
respondent originated with her and that respondent had frowned upon it
and also he had objected to her going to his room when they arrived at
the hotel in Miami. The jury "disbelieved or deemed inconsequential'
this portion of the woman's testimony tending to exculpate respondent.
The Circuit Court stated that in any event the portion of the woman's
testimony freeing the defendant of an unlawful purpose was "at best but
slight evidence of what was actually in the defendant's mind,' so that
even accepting the whole of her testimony at face, it was still for the
jury to determine from all the proven facts what the defendant's purpose
was in having the woman transported to Miami. This review of the facts
clearly shows no more than that respondent engaged in extra marital
relations with a willing woman over a ten-day period. Evidence adduced
at the deportation hearing reveals no more. Does such conduct
constitute an "immoral purpose' under section 212(a)(12)? We believe
not.
The words "other immoral purpose' are, in the immigration law, words
of art (Hansen v. Haff, 291 U.S. 559 (1934)). It has been settled that
the words "other immoral purpose' in the phrase "for the purpose of
prostitution or any other immoral purpose' mean an act of a like
character with prostitution, and extra marital relations short of
concubinage fall short of that description. In other words, the intent
to have the illicit relations that were casual was not enough to bring a
person into the category of those persons who were coming for an
"immoral purpose.' This was the meaning given the words "other immoral
purpose' in the law prior to the Immigration and Nationality Act which
is involved in the instant proceedings.
No change in this regard was made by the Immigration and Nationality
Act. The Committee on the Judiciary whose investigation of the
immigration system furnished the basis for the Immigration and
Nationality Act of 1952, made the following recommendation concerning
the excludability of immoral aliens:
It is the recommendation of the subcommittee, however, that the
excludable class of immoral aliens should be enlarged to include
persons who have practiced prostitution or who have procured or
attempted to procure or import prostitutes or other persons for
immoral purposes, as well as those who are so engaged at the time
of entry as provided in the law at present. This excludable class
should include persons who seek to enter the United States to
engage in any illicit sexual act or other immoral act, whether
that purpose be the sole, principal, or incidental purpose of
their entry. This latter provision will overcome the decision of
the Supreme Court in Hansen v. Haff. Emphasis added. (Report
1515, 81st Cong., 2d sess., p. 358.)
We have previously decided that the change recommended by the
Committee was not adopted by Congress when the Immigration and
Nationality Act was passed (Matter of B , T-2098246, 5, I. & N. Dec.
185). The words "other immoral purpose' in the immigration law remain
words of art and specify acts of a like character with prostitution, a
requirement not satisfied by extra marital relations short of
concubinage. Concubinage has not been established. Can it be said that
respondent was one who procured a person for the purposes of
prostitution or acts of a like character with prostitution? Our answer
is in the negative. Prostitution is the practice of a female offering
her body to indiscriminate intercourse with men (73 C.J.S. 224). Unless
otherwise defined by statute, it is distinguished from sexual
intercourse confined to one man (People ex rel. Colletti v. Morehead, 50
N.Y.S.2d 78; Commonwealth v. Kaniper, 3 Pa. Co. 276; Cleveland v.
United States, 329 U.S. 14, 17, 91 L.Ed. 12; United States v. Zes
Cloya, supra). We find no evidence in the record that the respondent
procured the woman for the purpose of having her offer her body to
indiscriminate intercourse with men. The second charge is clearly not
sustained. Any other conclusion would rewrite the law to make
deportable any alien who performed one act of fornication at any time
after entry. No deportable ground is set forth in this record. The
proceedings should be terminated.
Order: It is ordered that the decision of the special inquiry
officer terminating proceedings be affirmed.
(1) Count two was laid under 18 U.S.C.A. 399, now 2422. It charged
respondent with persuading the female in question to pass state lines
"for the immoral purpose of illicit sexual intercourse with him.' Count
three was laid under the same section as was count one and charged the
respondent with causing the female to be transported "with intent to
induce, entice, and compel, the said L A to engage in the immoral
practice of illicit intercourse with him.'
(2) The rule set forth exists because a standard must be supplied to
administrative agencies; it eliminates the burden of going into the
evidence in a case; it eliminates the situation where a nonjudicial
agency retries a judicial matter; and it prevents the situation
occurring where two people convicted under the same specific law are
given different treatment because one indictment may contain a fuller or
different description of the same act than the other indictment; and
makes for uniform administration of law (United States ex rel. Mylius
v. Uhl, supra).
(3) Respondent is charged in the conjunctive with the commission of
acts and the possession of intents set forth in the statute in the
disjunctive. Such pleading is proper to avoid an acquittal by reason of
any unforeseen lack of harmony between allegations and proof; and proof
of the commission of any one of the acts and possession of any one of
the intents is sufficient to obtain conviction (Malaga v. United States,
57 F.(2d) 822 (C.A. 1); Blain v. United States, 22 F.(2d) 393, 395
(C.A. 8); United States v. Mellor, 71 F.Supp. 53 (D.C., Neb., 1946),
affd. 160 F.(2d) 757 (C.A. 8), cert. denied 331 U.S. 848; see also
United States v. Brothman, 93 F.Supp. 924 (S.D. N.Y., 1950); District
of Columbia v. Hunt, 163 F.(2d) 833 (C.A. D.C., 1947); Frederick v.
United States, 163 F.(2d) 536, 544 (C.A. 9, 1947), cert. denied 332
U.S. 755; Crain v. United States, 162 U.S. 625, 40 L.Ed. 1097).
Under such an indictment, the charges which are not supported by the
evidence need not be submitted to the jury -- only such issues as are
supported by the evidence should be submitted (Mellor v. United States,
supra, 160 F.(2d) 757, 763 (C.A. 8)). We are precluded from going
behind the record to determine what issues were presented to the jury
(United States ex rel. Teper v. Miller, supra).
(4) There can be conviction for offenses arising out of the same act
if there is a violation of sections 398 and 399 (La Page v. United
States, 146 F.(2d) 536 (C.A. 8, 1945)).
(5) Respondent's petition for naturalization filed in 1944 was
denied. While the reason for the denial could have been stated with
greater clarity, it was not based on the ground that he had committed an
immoral act or had been convicted under the Mann Act. It appears that
the court, because the record reflected derogatory information
concerning the respondent besides the conviction, gave to the fact that
conviction existed, a weight, he would not otherwise have given it, and
as a descretionary matter, denied the petition for naturalization
(Petition of Reginelli, 86 F.Supp. 599 (D.C. N.J., 1949)).
Marriage -- Validity in England when claim to be widower is supported by affidavit and no decree of presumption of death and dissolution of prior marriage obtained.
A person not domiciled in England who entered into a second marriage
in that country on September 19, 1953, supporting his declaration that
he is a widower by an affidavit in statutory form relating to the
disappearance of his first wife in Estonia, is considered to have made a
valid second marriage, notwithstanding that he did not obtain a decree
of presumption of death and dissolution of marriage under the
Matrimonial Causes Act, 1950.
Discussion: This case is before us on appeal from a denial by a
district director on March 19, 1954, of a visa petition.
The visa petition was filed by the subject in behalf of her
beneficiary husband for a preference quota status under section 203(a)(
3) of the Immigration and Nationality Act. It was denied because it was
concluded that the beneficiary was not shown to have been eligible to
enter marriage with her at the registrar's office at Derby, England, on
September 19, 1953.
The certified copy of marriage shows the beneficiary in this case, a
widower, was married to the petitioner in this case, a widow, at the
time and place stated. The beneficiary was married at Narva, Estonia,
on June 21, 1920. He made a declaration before a Commissioner for Oaths
on April 16, 1952, at Kensington, London, England, which sets forth the
following:
I, M T whose present address is 100, Stockbrook Street, Derby,
hereby solemnly and sincerely declare as follows:
1. I was born on the 27th January, 1902, in Johvi, Estonia.
2. I married E K at the Registrar's Office in Narva on the 26th
day of March, 1926.
3. I was mobilized on the 2d August, 1944 and was last home on
the 22nd August, 1944 which was the last time I saw my wife.
4. Soviet troops occupied Estonia and arrested members of
military families and deported them to Russia and I have made all
possible enquiries in an effort to trace the whereabouts of my
said wife but have been unable to ascertain whether she is alive
or dead and, therefore, can only assume that she is no longer
living.
5. I came to England on the 9th October, 1947 from Germany
under the Ministry of Labour "Westward Ho' Scheme.
And I make this solemn declaration conscientiously believing
the same to be true and under and by virtue of the Statutory
Declarations Act 1835.
Declared at 23, Young Street, Kensington in the County of London this
16th day of April, 1952 Before me,
M T
H.F.D. Bingley,
A Commissioner for Oaths.
I hereby certify this to be a true copy of the original Declaration.
Dated this 1st day of January, 1954.
(s) H.F.D. Bingley,
A Commissioner for Oaths.
It is not alleged that a court decree was sought or procured by the
beneficiary here under section 16 of the Matrimonial Causes Act, 1950.
Under such proceedings, the court could issue a decree of presumption of
death and dissolution of marriage. /1/ The district director concluded
from some information furnished by the Vice Consul of the British
Consulate General's office at San Francisco, California, that the
petitioner had not established that the beneficiary in this case was
free to enter into a valid marriage subsequent to his first marriage on
June 21, 1920.
The information given by the above Consulate's office was offered "as
a rough guidance' and "does not, by any means, constitute the last legal
word on the subject.' Accordingly, further inquiry on the subject was
sought at the British Embassy at Washington, D.C.
Because of the importance of the subject matter and the bearing it
may have on many situations in various cases, the full text of the reply
dated November 16, 1954, from the British Embassy will be incorporated
here. Ref: K 161/18
British Embassy,
Washington, D.C.
November 16, 1954.
DEAR SIR: I am replying to your request for information about the
validity of a marriage performed in the Registrar's Office at Derby on
September 19, 1953, between a woman who declared herself to be a widow
and whose declaration is not in dispute and a man who declared himself
to be a widower and who supported his declaration by the production of
an affidavit made at London on April 16, 1952, in the form of a
statutory declaration but who did not obtain a decree of presumption of
death and dissolution of marriage under the Matrimonial Causes Act,
1950.
The question to be answered is whether, assuming the only point at
issue to be the man's eligibility to marry, the marriage is valid in the
same way as if he had obtained a decree of presumption of death.
It would appear, however, that the question does not arise because
the procedure under Section 16 of the Matrimonial Causes Act, 1950, for
obtaining a decree of presumption of death and dissolution of marriage
is only available to a person "domiciled in England'. The widower
according to his statutory declaration was born in Estonia and
apparently contracted his first marriage there and last saw his wife
there in 1944 and did not go to the United Kingdom until 1947 when he
entered the United Kingdom under special arrangements made by the
Ministry of Labour. It appears that he does not have and never has had
United Kingdom citizenship, nor is it likely that he entered the United
Kingdom for permanent residence. The conception of "domicile' in
English law is clearly distinguished from that of residence. "Domicile'
is difficult to define but generally speaking it may be said that every
person acquires at birth a domicile of origin which is the domicile of
his father at that time. He retains that domicile unless it is proven
that he has gone to another country with the intention of remaining
there indefinitely. Long residence in a country for the purpose of
following an employment is not sufficient in itself to constitute the
acquisition of a new domicile. Leaving to one side the question of
domicile there has been a case in 1946 before the Probate, Divorce and
Admiralty Division of the High Court of Justice in England that settles
a similar point. This was Tweney v. Tweney reported in all England Law
Reports (1946) page 564. In that case the second marriage took place in
England in 1932. The wife had been previously married in 1920. Her
husband by a previous marriage had disappeared six months after that
marriage and nothing had been heard of him again notwithstanding
exhaustive enquiries. The wife was now petitioning for dissolution of
the second marriage on the ground of desertion. The Court, therefore,
had to decide whether the second marriage was valid, because, if it was
not valid, there could, of course, be no question of dissolving it. It
was held that
"The petitioner's marriage to the respondent being
unexceptionable in form and duly consummated remains a good
marriage until some evidence is adduced that the marriage was, in
fact a nullity. The position with regard to the evidence is that
* * * it is a case in which both sides have done their best to get
news of the first deserting spouse and have failed to do so.
Austin, if alive, would now be aged about 48 and it is quite
possible that, being a seaman, he may now be dead. The only point
which I have to decide is whether this was a good marriage. There
is no question that the marriage between the petitioner and
respondent was attended by all proper formalities. This Court
ought to regard the petitioner, who comes before it and gives
evidence of a validly contracted marriage, as a married woman,
until some evidence is given which leads the Court to doubt that
fact * * *.'
Tweney v. Tweney is not quite on all fours with the present case
because in 1932 when Mrs. Tweney celebrated her second marriage there
was no statutory procedure for obtaining from the Court a decree of
presumption of death and dissolution of marriage. This procedure was
not introduced until the Matrimonial Causes Act, 1937. However, the
Court's reasoning in the judgment in Tweney v. Tweney supports the view
that it would reach the same conclusion in favour of the validity of the
second marriage in the case about which you have requested information.
It is significant that there is no suggestion in the judgment that the
introduction of the new statutory procedure affected this aspect of the
matter. This view of the effect of Tweney v. Tweney is supported by the
editorial note on the case in the All England Law Reports. This note,
which although it is not authoritive, represents the opinion of experts,
says
"Two courses are open to a married woman whose husband has
disappeared, and who desires to marry again. She may proceed
under the Matrimonial Causes Act, 1937, s.8 (now section 16 of the
Matrimonial Causes Act, 1950) for a decree of presumption of death
and dissolution of marriage, or she may, after making all possible
enquiries, remarry, since the Court, in any future proceedings,
will regard a marriage contracted with proper formality as binding
in the absence of evidence to the contrary * * *.'
The fact that the editorial note refers to "a married woman whose
husband has disappeared' and not also to a married man whose wife has
disappeared, which is the position in the present case, is not
significant. In this case I may say there is good authority for
regarding the second marriage in the Registrar's Office at Derby on
September 19, 1953, as valid under English law.
Yours very truly,
W.G.E. Beckman,
(S) W.G.E. Beckmann,
H.M. Consul
It appears clear from the foregoing that there is no basis to
question the validity of the parties' marriage on September 19, 1953, in
these proceedings. Accordingly, the appear will be sustained.
Order: It is ordered that the order of the district director of
March 19, 1954, denying the petition in this case be withdrawn.
It is further ordered that the appeal from the decision of the
district director of March 19, 1954, be sustained.
(1) Halsbury's Statutes of England (2d ed., Vol. 29)
Preliminary Note: (This Act) consolidates virtually all the former
enactments relating to matrimonial causes in the High Court,
declarations of legitimacy and validity of marriages and matters
incidental thereto.
Section 16. Proceedings for decree of presumption of death and
dissolution of marriage. --
(1) Any married person who alleges that reasonable grounds exist for
supposing that the other party to the marriage is dead may, if he is
domiciled in England, present a petition to the court to have it
presumed that the other party is dead and to have the marriage
dissolved, and the court, if satisfied that such reasonable grounds
exist, may make a decree of presumption of death and of dissolution of
the marriage.
(2) In any such proceedings the fact that for a period of seven years
or upwards the other party to the marriage has been continually absent
from the petitioner, and the petitioner has no reason to believe that
the other party has been living within that time, shall be evidence that
he or she is dead until the contrary is proved.
Petty offense -- Section 4 of P.L. 770 (83d Cong., 2d sess.) -- Exemption applies when more than one offense committed provided only one involves moral turpitude -- Petty theft, Texas.
(1) The words "provided that the alien has committed only one such offense' refer to an offense involving moral turpitude and do not render inadmissible an alien whose additional offenses do not involve moral turpitude.
(2) Where conviction record for petty theft in Texas does not show value of stolen property and alien was fined $25 for this offense, recourse to the Texas statutes and the fact that conviction was had in the Corporation Court establish that alien was convicted of a misdemeanor classifiable as a petty offense within purview of section 4 of P.L. 770.
CHARGE:
Warrant: Act of 1952 -- Section 241(a)(1) -- Excludable at time of
entry -- prior conviction of crime -- Petty theft.
Discussion: This case is before the Board on appeal from the
decision of a special inquiry officer in which he ordered deportation.
The record relates to a 53-year-old married male, a native and
subject of the Netherlands, who last entered the United States at Port
Arthur, Texas, on January 8, 1953, as a member of the crew of the SS.
Washington, at which time he was admitted as a returning resident alien.
That arrival was from Puerto Rico. A record of admission for permanent
residence was previously created following suspension of deportation
proceedings. The date of that entry was recorded as of January 22,
1942.
There is contained in the record a certification that the respondent
was convicted of petty theft on October 25, 1949, in the Corporation
Court, Beaumont, Texas, at which time he was fined $25 plus $5.20 costs.
Respondent admitted that this certification relates to him.
It is noted that deportability is based upon section 241(a)(1) of the
Immigration and Nationality Act because of excludability at the time of
last entry. On September 3, 1954, Public Law 770, 83d Congress, 2d
session, was enacted, section 4 of which provides that:
Any alien who is excludable because of the conviction of a
misdemeanor classificable as a petty offense under the provisions
of section 1(3) of Title 18, United States Code, by reason of the
punishment actually imposed, or who is excludable as one who
admits the commission of such misdemeanor, may hereafter he be
granted a visa and admitted to the United States, if otherwise
admissible: Provided, That the alien has committed only one such
offense.
Section 1, Title 18, U.S.C.A., classifies the offenses under that
Title:
Offenses classified --
Notwithstanding any Act of Congress to the contrary:
(1) Any offense punishable by death or imprisonment for a term
exceeding one year is a felony.
(2) Any other offense is a misdemeanor.
(3) 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.
The respondent is now in the United States. If he were outside the
jurisdiction of this country and applying for admission he would not, if
the crime of petty theft for which he was convicted was within section
4, be excludable by virtue of that conviction. We stated in Matter of C
, E-092142, October 8, 1954, Int. Dec. No. 635, that inasmuch as section
4 of Public Law 770 would be beneficial to a respondent should he be
outside the United States seeking documentation to enter, we believed
that by the same reasoning he should be relieved from deportation in
expulsion proceedings. That leads us to a determination of two basic
issues in this case: (1) whether the respondent's conviction for petty
theft falls within the basic provisions of section 4 of Public Law 770,
and (2) what is meant by the proviso in that section of law which reads
"Provided, That the alien has committed only one such offense.'
As to the first point, it is noted that the crime of theft in Texas
is divided into two classes, one being a felony and the other a
misdemeanor. The former involves theft of the value of $50 or more and
carries punishment by confinement in the penitentiary of not less than 2
nor more than 10 years (O.C. 756; Acts 1895, p. 15). The crime of
theft which is considered a misdemeanor reads as follows:
Theft of property under the value of $50 and over the value of
$5.00 shall be punished by imprisonment in jail not exceeding two
years, and by fine not exceeding $500, or by such imprisonment
without fine; theft of property of the value of $5.00 or under
shall be punished by a fine not exceeding $200. O.C. 757; Acts
1858, p. 181; Acts 1876, p. 242; Acts 1895, p. 15; Acts 1927,
p. 432, Ch. 157, Sec. 1. (Vernon's Penal Code of Texas, Volume 3,
Title 17, Chapter 8, Article 1422).
In the instant case the certification regarding the conviction does
not show whether the value of the property was over or under $5.00 or,
as a matter of fact, whether it was over $50. However, we must conclude
that it was for property valued at $5.00 or less because the conviction
was in the Corporation Court. The jurisdiction of the Corporation Court
in criminal cases is limited to those in which punishment is by fine
only, and where the maximum of such fine may not exceed $200 (Acts of
1899, p. 10 (Vernon's Code of Criminal Procedure of Texas, Volume 1,
Title 2, Article 62)). It is, therefore, apparent that the respondent
was convicted of a misdemeanor carrying with it possible punishment of a
fine of not more than $200 and consequently the conviction is within the
basic provision of section 4 of Public Law 770.
The second issue in the case, as previously pointed out, involves the
construction of the proviso to section 4 which makes the basic portion
of that section applicable if the alien has "committed only one such
offense.' Does the proviso relating to one such offense refer only to a
crime involving moral turpitude or does it relate to any offense. That
is important in the case because the respondent was convicted of drunken
driving on 3 occasions, disturbing the peace once, apparently beating
his wife once, and for falsely representing himself to be a United
States citizen in violation of section 346(a)(18) of the Nationality Act
of 1940 (8 U.S.C. 746(a)(18)). For this last offense, he was on March
4, 1946, sentenced to one year's imprisonment, which sentence was
suspended for five years and he was put on probation. That conviction
was known and referred to in the order granting suspension of
deportation. It does not involve moral turpitude (Matter of K ,
A-6092065, 3, I. & N. Dec. 69). It has not been shown that any of the
other offenses mentioned in this paragraph involve moral turpitude. In
view of the foregoing, if the proviso to section 4 of Public Law 770
relates only to crimes involving moral turpitude, the respondent in the
instant case would not be deportable.
We think that the proviso relates only to offenses involving moral
turpitude for the following reasons:
(1) The use of the words "such offense' relates to the opening clause
of section 4 which deals with excludability because of conviction, etc.,
of an offense classifiable under 18 U.S.C. 1(3) and such a conviction,
in order to be a ground of excludability in the first instance, must be
for a crime involving moral turpitude.
(2) Debates on the floor of the House reflect that section 4 of
Public Law 770 was intended to deal with grounds of exclusion relating
to section 212(a)(9) of the Immigration and Nationality Act.
Congressman Walter stated that it is the only vehicle available to bring
about a modification of section 212(a)(9); Congressional Record, August
20, 1954 (unbound) p. 14506. That section of the Immigration and
Nationality Act deals only with crimes involving moral turpitude.
Congressman Walter went on to say that he wanted to make it perfectly
clear that the amendment would apply not only to the beneficiaries of
that bill but to any alien who may be excludable under section 212(a)(
9). He amplified his statement by saying that section 212(a)(9) already
drew a distinction between the youthful offender guilty of only one
crime and the alien whose transgression occurred after he reached the
age of 18 years. In analyzing section 212(a)(9), the one crime referred
to is a crime involving moral turpitude and there the law relates
clearly to "one such crime' which would indicate that any added crimes
short of crimes involving moral turpitude, would not be considered in
the case of an alien who committed one crime involving moral turpitude
while under the age of 18 years. To hold otherwise would require the
exclusion of an alien under the age of 18 years who was convicted of a
crime involving moral turpitude classificable as a petty offense under
18 U.S.C. 1(3) if he was also convicted of a crime such as, for example,
simple assault which does not involve moral turpitude, if simple assault
were classifiable under 18 U.S.C. 1(3).
(3) In the Senate, the late Senator McCarran stated that the purpose
of section 4 of what became Public Law 770 was to exempt from certain
exclusion clauses an alien who is excludable solely because of the
commission of a misdemeanor, etc., Congressional Record, August 20, 1954
(unbound) p. 14609. Since he refers to excludability solely because of
that offense, it is clear to us that the proviso relating to "only one
such offense' must relate to an offense involving moral turpitude
because the original offense must be one involving moral turpitude;
otherwise, the alien would not be excludable.
(4) Section 1 of Title 18 of the United States Code, which is
referred to in section 4 of Public Law 770, contains 3 gradations of
offense without relation to the question of moral turpitude. It is the
least serious of the 3 which is referred to in section 4 of Public Law
770. In view of that fact, it might also be argued that it would not be
necessary for the proviso to use the words "such offense' unless it was
contemplated that moral turpitude would inhere, because the use of the
term "any offense' (under section 1(3)) would otherwise adequately cover
the situation.
In view of the foregoing, we conclude that the words "Provided, That
the alien has committed only one such offense' does not render
inadmissible an alien whose additional offenses do not involve moral
turpitude. Lest we be misunderstood, we wish to make clear that if the
alien is excludable under section 212(a)(10) which relates to two or
more offenses irrespective of moral turpitude, for which the aggregate
sentences to confinement actually imposed were five years or more,
section 4 of Public Law 770 does not relate. In the instant case the
aggregate sentences to confinement actually imposed for all the offenses
committed by the respondent do not aggregate five years or more.
Therefore, section 212(a)(10) plays no part in this case for that reason
and for the additional reason that it was not a ground for exclusion at
the time the respondent made his last entry.
For all the reasons set forth above the proceedings must be
terminated.
Order: It is ordered that the proceedings be and the same are hereby
terminated.
Philippine Independence Act -- Effective date.
The effective date of the Philippine Independence Act for immigration purposes is May 1, 1934, the date on which a concurrent resolution accepting the act was adopted by the Senate and House of Representatives of the Philippine legislative.
CHARGE:
Warrant: Act of 1924 -- No immigration visa.
Discussion: The special inquiry officer, in a decision dated June
25, 1954, directed that the proceedings in this case be terminated and
that respondent's record of arrival be corrected to show admission for
permanent residence. That official then certified the case to this
Board for review and final decision.
This record relates to a 39-year-old male, a native and citizen of
the Philippine Islands. He last entered the United States on May 9,
1934, at San Francisco, California. The record shows that he was not
then in possession of an immigration visa. It appears that he has
remained in the United States at all times since May 9, 1934.
The records show that upon arrival on May 9, 1934, respondent was
held for action by a board of special inquiry and, on May 18, 1934,
excluded from admission to this country on the grounds that he was an
immigrant without a visa; that he was likely to become a public charge;
and that his passage was paid for by another. He appealed from that
decision and at some later date, not shown, was apparently paroled into
the country awaiting decision by the Commissioner on Appeal. On
February 7, 1935, an order was entered by the Assistant to the Secretary
of Labor affirming the order of exclusion solely on the ground that he
was an immigrant not in possession of a visa. On September 18, 1935, a
formal order to deport was issued by the Deputy Commissioner.
Thereafter, the Service was unable to locate the alien until October 15,
1940, when he registered as an alien under the Alien Registration Act of
1940, but he again disappeared until January of 1942. He was then taken
into custody, but on February 17, 1942, was again ordered placed on
parole by the Special Assistant to the Attorney General. On October 17,
1946, a motion to set aside the order of exclusion and deportation was
made, requesting that the alien be permitted to apply for suspension of
deportation. The Service files do not show that the parole was ever set
aside, but they do show that on September 9, 1947, a warrant of arrest
in deportation proceedings was issued and on October 14, 1947, the alien
released from custody on bond.
The special inquiry officer's termination of the proceedings is based
on the conclusion that the respondent was not required to present an
immigration visa at the time of his arrival on May 9, 1934. That
conclusion, in turn, is based on the finding that the Philippine
Independence Act did not become effective until May 14, 1935. Thus, the
initial issue presented by this case requires determination of the date
on which the Philippine Independence Act actually became effective.
The special inquiry officer's finding that the Philippine
Independence Act did not become effective until May 14, 1935, appears to
be based on a pronouncement to that effect by the Court of Appeals for
the 9th Circuit in the case of Del Guercio v. Gabot, 161 F.(2d) 559
(C.C.A. 9, 1947), which statement it reiterated in the case of Mangaoang
v. Boyd, 205 F.(2d) 553 (C.C.A. 9, 1953). However, that same court, in
the case of Cabebe v. Acheson, 183 F.(2d) 795 (C.A. 9, 1950), has also
set the effective date of the act as November 15, 1935. Thus, it is
clear that the court is not certain as to just when the act did become
effective. We, however, take the position that its effective date for
immigration purposes is May 1, 1934.
Section 17 of the Philippine Independence Act of March 24, 1934,
provided that it would be effective when:
"* * * accepted by concurrent resolution of the Philippine
legislature or by a convention called for the purpose of passing
upon that question as may be provided by the Philippine
legislature.' Emphasis supplied.
A concurrent resolution accepting the act was adopted by the Senate
and House of Representatives of the Philippine legislature on May 1,
1934 (Hackworth, Digest of International Law, Volume 1, page 496; and
22 U.S.C. 1281, Historical Note). Therefore, we hold that it became
effective on that date, because the primary condition for its
effectiveness, as laid down by Congress, was then met. The fact that
Congress provided for an alternative condition for its becoming
effective obviously became immaterial when the first method was chosen.
We see in the words of section 17 no language reasonably requiring an
interpretation that the conditions spelled out therein were in the
conjunctive. That is, we find no room in the construction of this
section for any doubt that when the Philippine legislature by joint
resolution approved the act it became effective without more.
The dates seized upon by the Court of Appeals for the 9th Circuit
relate to the approval of the Philippine Constitution by the Philippine
people (May 14, 1935) and the date of the Inauguration of the
Commonwealth of the Philippines, that is, the date that the first
president began serving (November 15, 1935). We, however, find that
these dates are in no way determinative of the effective date of the
Philippine Independence Act of 1934.
The act did authorize the Philippine legislature to provide for the
election of delegates to a constitutional convention to formulate and
draft a constitution "for the Government of the Commonwealth of the
Philippine Islands.' It provides (section 3) that the constitution to be
drafted and approved by the constitutional convention should be
submitted to the President of the United States and, if certified by him
to conform to the act, to the people of the Philippine Islands for their
ratification (section 4). It also provided that such ratification
should be deemed an expression of the will of the people of the
Philippine Islands in favor of independence; and that when obtained,
and proclaimed by the President of the United States, "the existing
Philippine Government shall terminate and the new government shall enter
upon its rights.' In this connection, the constitution of the
Philippines was adopted by a Philippine Constitutional Convention on
February 8, 1935. On March 23, 1935, the President of the United States
notified the Governor General of the Philippine Islands that the
proposed constitution had been submitted to him and that he certified
that "the same conforms substantially with the provisions of the Act of
Congress approved March 24, 1934.' Thereafter, the constitution was
submitted to the people of the Philippines and approved by them on May
14, 1935. Thereafter, on November 15, 1935, the Commonwealth of the
Philippines was inaugurated. (Cf. Hackworth, Digest of International
Law, Volume 1, pages 493-502; Annals of the American Academy of
Political and Social Science, Volume 226, Chapter on the Philippine
Islands; also, this information was verified by the Philippine Desk of
the Department of State and Mr. Quirino of the Philippine Embassy in
Washington, D.C.)
Furthermore, we find additional support for our position that the
dates of approval of the Philippine constitution by the people of the
Philippine Islands and the date of the inauguration of the Philippine
Commonwealth are not determinative of the effective date of the
Philippine Independence Act of 1934. First, on November 5, 1935, the
Minister of the Union of South Africa presented to the Secretary of
State an inquiry from the South African Department of Customs and Excise
relative to the classification of the Philippine Islands for customs and
statistical purposes. The Secretary of State replied that until the
President of the United States shall by proclamation withdraw and
surrender all right of possession, supervision, jurisdiction, control,
or sovereignty in the Philippines as provided in section 10(a) of the
Independence Act "sovereignty over the Philippine Islands rests with the
United States.' (Secretary Hull to the Minister of the Union of South
Africa, November 15, 1935; M.S. Department of State, File 811-b.
01/261.) In addition, the Supreme Court has stated that the Philippine
constitution did not alter our relationship with the Philippine Islands
in any way (Cincinnati Soap Company v. United States, 301 U.S. 308,
313-314, 319-320 (1937)).
Also, on the question of deportability, the special inquiry officer
felt that when the respondent entered the United States on May 9, 1934,
he probably could not be considered as "arriving from some foreign port
or place,' in accordance with the case of Barber v. Gonzales, 347 U.S.
637, 98 L.Ed. 675 (1954). In that case, the Supreme Court stated:
"That the Philippines became foreign for immigration purposes with the
1934 Philippine Independence Act.' In this connection, the facts are
that the act was passed by Congress on March 24, 1934; that the
respondent left the Philippines on April 18, 1934; that the act became
effective on May 1, 1934; and that the respondent arrived in the United
States on May 9, 1934.
In view of the foregoing, we hold that the respondent was required to
present a visa at the time of his arrival. The act was passed prior to
his departure from the Philippines. It was effective at the time of his
arrival in the United States. By its terms, it made the 1924 act
applicable to the respondent. The latter act contained the visa
requirement. Nor does the fact that applicable regulations were not
promulgated until June 8, 1934 (G.O. No. 209, 55775/253; Rule 31 1937
edition, Immigration Laws ) call for a contrary conclusion. The law
itself contained the visa requirement and the regulations were not
needed to implement it in this respect. Such a situation is clearly
distinguishable from the one in which the law is drafted in the terms of
broad purpose and regulations are needed to specifically spell out the
conditions under which the law shall be applicable. (Cf. "resident
neutral alien' requesting relief from military service; Matter of K ,
A-9623678, 4, I. & N. Dec. 348).
On the basis of the foregoing, we conclude that respondent is
deportable on the charge contained in the warrant of arrest, and that
the special inquiry officer's order terminating the proceedings was
improper.
Discussion as to eligibility for suspension of deportation: The
record shows that the respondent has resided in the United States at all
times since 1934. It also shows that he was legally married to a
native-born citizen of the United States on January 26, 1945, and that
there is one child of that union. It further shows that the wife has
divorced the alien and is no longer dependent upon him for support, but
he claims to be paying $10 weekly toward the support of the child.
Furthermore, the record shows that prior to his marriage, respondent
lived out of wedlock for several years with another woman, as a result
of which relationship there were three children born. In this
connection, the respondent offers various excuses for not having married
this woman; he states that this woman has now disappeared and he does
not know her whereabouts or that of two of the children; but that he
has under his care the oldest of the three children and is providing her
with a home and education. Respondent is employed as an agricultural
worker earning $50 to $70 per week, and his assets consist of a diamond
ring valued at $750. It is clear on the record that the respondent has
resided in the United States in excess of seven years and that he was so
residing on July 1, 1948.
A check of appropriate local and federal records has failed to reveal
an arrest or criminal record relating to the respondent. He registered
under the Selective Training and Service Act of 1940, and is not
presently required to register under the Selective Service Act of 1948.
Inquiry has disclosed that the alien has no connection with subversive
groups. Witnesses have been produced to establish that the respondent
has been a person of good moral character for the preceding five years.
The special inquiry officer has pointed out that investigations
conducted by officers of the Service leave grave doubts as to whether
good moral character is established, but these reports appear to be
solely concerned with the question of whether or not the respondent is
supporting his children.
The respondent is a quota immigrant and as such chargeable to a
country whose quota is heavily oversubscribed. Therefore, he would not
be able to readily secure an immigrant visa if granted the privilege of
voluntary departure.
On the basis of the foregoing, we feel that suspension of deportation
is merited in these premises. We will now enter an appropriate order.
Order: It is ordered that the outstanding order of the special
inquiry officer dated June 25, 1954, be and the same is hereby
withdrawn.
It is furthered ordered that the deportation of the alien be
suspended under the provisions of section 19(c) of the Immigration Act
of 1917, as amended.
It is further ordered that if the Congress approves the suspension of
the alien's deportation, the proceedings be cancelled and the alien, if
a quota immigrant at the time of entry and not then charged to the
appropriate quota, be so charged as provided by law.
Recommendation against deportation -- Section 241(b) of Immigration and Nationality Act -- Prior notice to Service mandatory.
A timely recommendation against deportation made by the court when imposing sentence was ineffective because of failure to comply with the mandatory provisions of section 241(b) of the Immigration and Nationality Act for prior notice to the interested State, the Service, and the prosecution authorities.
CHARGE:
Warrant: Act of 1952 -- Crime within five years -- Larceny.
Discussion: This case is before us on appeal from the decision of a
special inquiry officer on July 21, 1954, directing the respondent's
deportation.
The respondent is a 19-year-old male, native and citizen of Greece,
who last entered the United States on or about May 1, 1953, at which
time he was admitted as a returning legal resident. He was admitted for
permanent residence on August 23, 1951. On July 28, 195o, following his
conviction of "Larceny over $50,' he was sentenced to imprisonment for a
period of not less than eight months nor more than five years and the
record of the proceedings on that date bears the notation "The Court
recommends that defendant be not deported.'
We have carefully considered counsel's contentions in his brief and
during the oral argument. Clearly, the respondent is deportable under
section 241(a)(4) of the Immigration and Nationality Act because of the
conviction mentioned above unless the provisions of section 241(b) of
that act are applicable. The pertinent part of section 241(b) is as
follows:
The provisions of subsection (a)(4) respecting the deportation
of an alien convicted of a crime or crimes shall not apply * * *
(2) if the court sentencing such alien for such crime shall make,
at the time of first imposing judgment or passing sentence, or
within thirty days thereafter, a recommendation to the Attorney
General that such alien not be deported, due notice having been
given prior to making such recommendation to representatives of
the interested State, the Service, and prosecution authorities,
who shall be granted an opportunity to make representations in the
matter.
Counsel contends that the conviction records are silent as to whether
notice was or was not given as required by section 241(b); that it is
now impossible for the judge, who made the recommendation, to state
whether notice was given because of the time which has since elapsed and
the large number of cases handled by him; and that it should be
presumed that the judge complied with the provisions of the statute
rather than that he did not. In our view, there is no occasion for
indulging in any presumption in this case. It appears from statements
of the special inquiry officer that the Service file does not contain
any notice from the court, prior to the making of the recommendation
against deportation. Counsel has indicated that evidence cannot be
submitted that there was due notice. /1/ We find, therefore, that
notice was not given to the Service prior to the making of the
recommendation by the court.
Counsel also urges that since the court was in possession of all the
facts relating to the case, its recommendation against deportation
should be honored. In this respect, the respondent's case is no
different from other cases in which deportation was ordered despite a
court's recommendation against deportation. Thus, deportation is not
precluded where the recommendation was made more than 30 days after
sentence was imposed /2/ or where the evidence, exclusive of the record
of conviction, was sufficient to sustain the deportation order. /3/ It
is true that the court could have recommended against deportation even
if the Service had been given due notice and had made adverse
representations. Nevertheless, it is clear from the statute that
Congress intended that due notice should be given to the State, the
Service and to prosecution authorities and that they were to have the
opportunity of making representations before the court made its decision
as to whether to recommend that the alien be not deported. It is our
considered opinion that since the action of the court did not comply
with the mandatory provisions of section 241(b) of the Immigration and
Nationality Act, the recommendation against deportation is ineffective.
There are certain appealing factors in this case. The respondent was
not quite 18 years of age when the offense was committed. He was
brought to this country by his uncle when he was only 16 years old and
his parents reside abroad. His testimony indicates that there may have
been extenuating circumstances in connection with the larceny offense.
However, the respondent is statutorily ineligible for and form of
discretionary relief and we have no alternative but to dismiss the
appeal.
Order: It is ordered that the appeal be and the same is hereby
dismissed.
(1) There is also no evidence that the recommendation of the court
was transmitted to the Attorney General or to the Service.
(2) United States ex rel. Klonis v. Davis, 13 F.(2d) 630 (C.C.A. 2,
1926); United States ex rel. Arcara v. Flynn, 11 F.(2d) 899 (W.D. N.
Y., 1926).
(3) United States ex rel. Di Tomasso v. Martineau, 97 F.(2d) 503 (C.
C.A. 2, 1938); Matter of A L , 3, I. & N. Dec. 468, decided February
15, 1949.
Expatriation -- Section 401(g) of Nationality Act of 1940, as amended.
An individual who deserted the Armed Forces of the United States in August 1950 and was thereafter convicted by a general court martial for desertion "in time of peace' (see Joint Resolution of Congress of July 25, 1947, terminating the state of war for certain purposes), was not expatriated under section 401(g) of the Nationality Act of 1940, as amended, since that subsection specifies conviction for desertion in time of war.
EXCLUDABLE:
Section 212(a)(22), Act of 1952 -- Departed from and remained outside
the United States during time of war or national emergency to evade
military service.
Discussion: The case is before us on appeal from the excluding
decision of the special inquiry officer of January 4, 1954. Counsel
submitted a brief in which he contends the subject is entitled to entry
into the United States for permanent residence as a citizen of the
United States.
The appellant was born at Los Angeles, California, on February 17,
1930, of Mexican parents. When about a year old, he was taken to reside
in Mexico. In 1937, he came to the United States, being admitted as a
United States citizen at Laredo, Texas. While here, he served in the
United States Marine Corps Reserve and was honorably discharged. He was
called thereafter to active duty by the Marine Corps in June 1950, was
duly enrolled, and was sent to Camp Pendleton, California, for training
and service. He deserted about August 11, 1950, and departed to Mexico
about 3 weeks later. In December 1950, he enrolled as a cadet in the
Colegio Militar at Mexico City, Mexico. He left that institution in
January 1951 and came to the border at Juarez, Mexico. He obtained a
transit visa as an alien born in Mexico, presenting a Mexican form 5-C
which he secured when enrolling at the Colegio Militar. He completed a
transit through the United States to Tijuana, Mexico, entering at El
Paso and leaving at San Ysidro. A few hours after arriving at Tijuana,
he reentered the United States on January 18, 1951, and was admitted on
his claim of being a native-born citizen and the presentation of a birth
certificate.
While in the United States and sometime after January 1951, the
subject was apprehended by the Naval Shore Patrol. He was tried by a
general court martial about December 31, 1952, on the charge of
desertion in time of peace. He was sentenced on January 2, 1953, to
dishonorable discharge, forfeiture of all pay and allowances,
confinement at hard labor for one year, and reduced in grade from
private first class to private. About a week or so after release from
confinement, he departed to Tijuana, Mexico, about October 10, 1953. He
has remained in Mexico since then.
The grounds of exclusion found by the special inquiry officer are
applicable to an alien. These grounds need not be discussed if it be
found that the record does not establish expatriation and the subject's
citizenship remains in question. In any case, the question of
citizenship is our primary concern here.
The special inquiry officer concluded that the subject was an alien
because the citizenship he acquired at birth by virtue of birth in the
United States (14th Amendment, U.S. Constitution and R.S. 1992) had been
forfeited under the expatriating provisions of section 401(g) of the
Nationality Act of 1940, as amended, by virture of his desertion in time
of war and the conviction by court martial for desertion on or about
August 11, 1950.
The pertinent portion of section 401(g), supra, as amended by the Act
of January 20, 1944, provides for expatriation of a citizen "Deserting
the military or naval forces of the United States in time of war,
provided he is convicted thereof by a court martial and as a result of
such conviction is dismissed or dishonorably discharged from the service
of such military or naval forces * * *.' Emphasis supplied.
Counsel indicates the state of war was terminated before the
desertion, insofar as section 401(g), supra, is concerned, by virtue of
section 3 of the Joint Resolution of Congress of July 25, 1947 (Chap.
327, 61 Stat. 451), but his quotation thereof omits an important part
thereof. Section 3, supra, reads, "In the interpretation of the
following statutory provisions, the date when this joint resolution
becomes effective shall be deemed to be the date of the termination of
any state of war heretofore declared by Congress * * *.' A search of the
several pages of the statutory provisions which follow this preliminary
statement in section 3, supra, fails to reveal that the section 401(g),
supra, as amended, is specified therein. So far as we can ascertain,
the last state of war was terminated on April 28, 1952, when
Presidential Proclamation No. 2974 of April 28, 1952, declared the war
between the United States and Japan then terminated.
But this does not settle the question before us, because there
remains the fact that the subject was not convicted by court martial for
desertion in time of war but was convicted for desertion in time of
peace. We hold that the phrase in section 401(g), supra, "provided he
is convicted thereof' means convicted of the charge of desertion in time
of war. The conviction, as shown in exhibit II, in this case was this
charge: "Violation of Articles for the Government of the Navy, Article
8, Paragraph 21.' /1/ This paragraph 21 deals with desertion in peace
time. It is clear that the conviction here was on the charge of
desertion in peace time. Accordingly, it is our view that expatriation
under section 401(g), supra, has not been established.
As a matter of interest, but separate and apart from the foregoing
conclusion, it should be noted that the Joint Resolution of Congress of
July 25, 1947, did specify among the statute enumerated in section 3 (as
to the interpretation of which war was to be deemed terminated as of
July 25, 1947) the following: Revised Statutes 1624 Art. 4, par. 6 (34
U.S.C. 1200, Art. 4). See 61 Stat. 453. This is Art. 4, par. 6 of the
Articles for the Government of the Navy, which relates to the offense of
desertion in war time. Accordingly, it would appear that it was not
possible for the subject to have been charged or convicted for desertion
on August 11, 1950, as one who deserted in war time because of the
provisions of the above Joint Resolution of July 25, 1947.
The special inquiry officer commented that had the subject not lost
citizenship under section 401(g), supra, he would have lost citizenship
under section 349(a)(10) of the Immigration and Nationality Act on the
ground he departed to Mexico about October 10, 1953, for the purpose of
escaping training and service in our armed forces during a period the
President declared to be one of emergency. It is not clear from the
record on what evidence such a conclusion could be based. In addition
we find we are not sufficiently informed as to what may have occurred
with respect to possible expatriation by virtue of what happened when
the subject enrolled as a cadet in December 1950 in the Colegio Militar
at Mexico City, Mexico.
Accordingly, the hearing will be reopened to have the question of the
citizenship of the subject further developed.
Order: It is ordered that the hearing in this case be reopened for
the purpose stated in the premises.
(1) See 34 U.S.C. 1200, and Art. 8, Twenty-first paragraph thereof,
R.S. 1624, Article 8, par. 21. Since the effective date of the Act of
May 5, 1950, which is May 31, 1951, desertion is treated under section
85 of the Uniform Code of Military Justice, 50 U.S.C. 679, and its
provisions replace the provisions in Art. 8, par. 21, supra, as to
desertion in peace time and Art. 4, par. 6 of R.S. 1624, as to desertion
in war time.
Evidence -- Alienage -- Effect of silence -- Examination by interrogatories -- Burden of proof, deportation proceedings -- Subpoenas.
(1) Government evidence in the form of respondent's marriage certificate, his record of arrival, and his child's birth certificate showing his birthplace to be Dundee, Scotland, outweighs his self-serving statements between 1927 and 1948 made in connection with his army enlistments and his registration as a voter to the effect that he was born in the United States.
(2) Respondent's refusal to be sworn as a witness and his failure to testify in his own behalf coupled with the evidence presented by the Government are sufficient to establish alienage.
(3) A hearing will not be reopened for the purpose of examining by means of interrogatories persons who made statements in exhibits which are no longer in evidence or which are not considered by the special inquiry officer or the Board in reaching a decision. In addition, there is no error in in the refusal of the special inquiry officer to permit the taking of interrogatories for the purpose of establishing that a baptismal record may not have been made contemporaneously.
(4) Under section 23 of the Immigration Act of 1924 and under section 291 of the Immigration and Nationality Act, the burden of proof in deportation proceedings is upon the alien to show the time, place, and manner of his entry into the United States, and the latter provision further provides that if the burden of proof is not sustained the alien shall be presumed to be in the United States in violation of law.
(5) There is no error in the special inquiry officer's denial of a request for a subpoena where the only purpose stated by counsel was to "discover' information which he believed would support his case, the request was not in any sense specific, and there was failure to comply with the provisions of 8 C.F.R. 287.4(a).
CHARGES:
Warrant: Act of 1924 -- No immigration visa.
Lodged: Act of 1952 -- After entry, member of Communist Party of United States.
Act of 1952 -- Failed to furnish notification of address.
Discussion: This case is before us on appeal from the decision of a
special inquiry officer on July 6, 1954, directing that the respondent
be deported.
The respondent is a 51-year-old male. The special inquiry officer
found, in part, that the respondent was an alien; that he was born in
Calcutta, India; that he last entered the United States on an unknown
date subsequent to October 1937 and prior to the end of 1938; that he
had not established that such entry was lawful; and that he had been a
member of the Communist Party of the United States from 1938 until 1946.
We will first consider counsel's contention that the Government has
not established that the respondent is an alien. Counsel offered in
evidence four honorable discharge certificates from the United States
Army, three being dated June 23 of the years 1930, 1933, and 1936, and
the fourth being dated February 2, 1937. Each of these discharges
contains the statement that A D M was born in Mankato, Minnesota.
Counsel also presented exhibits D and E which show that on June 10,
1941, and on February 23, 194o, the respondent had stated that he was
born at Mankato, Minnesota, and similar statements were made by him in
1946 and 1948 when he registered as a voter.
The Government offered in evidence photostatic copies of the
"declarations' executed by the respondent at the time of each of the
four enlistments mentioned above which show that he stated that he had
been born at Mankato, Minnesota. Attached to exhibit R-10 is a clinical
record showing that A M , having the Army Serial number of the
respondent, was admitted to the hospital at Schofield Barracks, T.H., on
December 13, 1927, and that his birthplace was shown as "India.'
Counsel requested that the hearing be reopened in order that a
subpoena might be issued for the production of the Army records relating
to the respondent's first enlistment, and he assumes that it was
necessary for the respondent at that time to produce some evidence that
he was born in the United States. If that were the case, it would seem
that counsel should produce a copy of the evidence then submitted or
state specifically what evidence was furnished. United States
citizenship was not a requirement for enlistment in the United States
Army /1/ and the regulations did not contain any specific requirement
that proof be submitted to establish United States citizenship.
We are aware that it was not the practice of the War Department to
require proof of United States citizenship in the case of a man applying
for enlistment who claimed to be a native-born citizen and we are
convinced that all of the pertinent information contained in the Army
file of the respondent has been introduced in evidence. The honorable
discharge certificates were offered in evidence by counsel on June 3,
1953, and if there had been evidence in the Army record establishing the
respondent's birth in this country, we believe counsel would have
obtained it heretofore. Insofar as the request for reopening is
predicated on supposed additional information in the Army records, it
will be denied.
From our review of the record, we observe that there is no evidence
or testimony corroborating the respondent's claim that he was born in
the United States and we also note that the evidence relied on consists
solely of statements made by the respondent between 1927 and 1948. It
is true that he was fairly consistent in asserting that he was born at
Mankato, Minnesota, on various occasions during this period. Even as to
that, there is the one conflicting statement in the clinical record of
December 13, 1927, indicating that he was born in India. The record
does not show whether he has claimed United States citizenship
subsequent to 1948. The respondent refused to be sworn as a witness
when called by the Government and he also failed to testify in his own
behalf. Hence, counsel's assertion that the respondent was born in the
United States is not even supported by any testimony of the respondent
himself during the present proceeding. The record is also devoid of any
testimony by the respondent as to whether he claims to have always been
aware that he was born in the United States; if not, when and under
what circumstances and by whom he was informed thereof; and where he
claims to have resided in the United States following his birth.
As against the respondent's statements beginning in 1927 that he was
born in the United States, the Government has presented evidence that
prior thereto he had claimed that he was born in Scotland. Witness A R
identified the respondent as her first husband and testified that he had
informed her that he was born in Dundee, Scotland. She identified a
certified copy of the record of her marriage on June 7, 1922, to the
respondent; verification of A D M 's arrival in the United States on
June 8, 1922, accompanied by A , 19 years of age; and certified copy of
the birth registration of their child, J M M on March 27, 1923. Each of
these documents shows A D M 's birthplace as Dundee, Scotland. The
Government also introduced a document verifying the arrival of A D M as
a seaman at Boston, Massachusetts, on February 20, 1920, from Calcutta,
India, which shows his citizenship as "British.' We believe that this
evidence, indicating that the respondent was not born in the United
States, outweighs his self-serving statements, which were made at the
time of his Army enlistments and in connection with his registration as
a voter to the effect that he was born in the United States.
At a continued hearing on June 3, 1953, counsel offered in evidence a
letter dated May 1, 1953, from La Martiniere College at Calcutta, India,
showing that A D M was in attendance there from January 8, 1914, until
December 31, 1919, and giving his date of birth as October 25, 1903.
Counsel stated that this letter was being offered merely to establish
the date of birth. Subsequently, on September 30, 1953, the Government
presented a letter from the same school containing the entire record of
A D M which, in addition to other information, shows his place of birth
as "Calcutta.'
During a further hearing on June 24, 1954, the Government offered in
evidence exhibits R-17, R-18, and R-19. The special inquiry officer
granted counsel's request for permission to prepare interrogatories for
the purpose of questioning the persons who executed these three exhibits
but later withdrew the grant thereof as to exhibits R-18 and R-19 after
the respondent had refused to answer the specific question of whether he
had been born in India. The officer represention the Service agreed to
the withdrawal from the record of exhibit R-17 and it was then marked
only for identification. It was not considered by the special inquiry
officer and his decision shows that he also gave no weight to exhibit
R-18. We have, therefore, eliminated these two documents from our
consideration of the case.
Counsel contends that the hearing should be reopened in order that he
may have an opportunity of examining, by means of interrogatories, the
persons who made the statements contained in exhibits R-17, R-18, and
R-19. Since R-17 (for identification) is no longer in evidence and
since exhibit R-18 has not been considered by the special inquiry
officer or us in disposing of the case, we will deny the request as to
those two documents on that basis.
Exhibit R-19 is a printed form entitled "Certificate of BAPTISM
solemnized at St. Andrew's Church, Calcutta, * * *.' It shows that A D M
was born on October 25, 1903, and was baptized on November 8, 1903. His
parents are shown as A E and G M which is in agreement with the
information as to the bridegroom's parents in exhibit 2. At the end of
the document appears a signed certiication dated April 19, 1954, to the
effect that the foregoing is a true extract from the Register of
Baptisms kept at St. Andrew's Church, Calcutta.
Counsel's request for the taking of interrogatories from the person
who signed exhibit R-19 is based on the premise that the baptismal
record may not have been made contemporaneously. We disagree with this
supposition because we are convinced that ecclesiastical authorities do
necord baptisms as they occur and that it is not the practice to show
the date the entry was made in the Register of Baptisms since this would
ordinarily be the date of baptism or a day or two thereafter. In
addition, the information shown in exhibit R-19 could only have been
obtained contemporaneously with the baptism. Under the circumstances,
we find no error in the refusal of the special inquiry officer to permit
the taking of interrogatories from the chaplain who executed exhibit
R-19, particularly since the respondent was asked whether he denied
having been born in India and refused to answer.
Insofar as our reliance on exhibit R-19 is concerned, the facts are
analogous to those in United States ex rel. Impastato v. O'Rourke, 211
F.(2d) 609 (C.C.A. 8, 1954), cert. den. 348 U.S. 827, in whicn the
Government had produced affidavits and copies of records procured
through the State Department from sources in Italy. The alien contended
that the hearing was unfair because the documentary evidence obtained in
Italy was hearsay and was not properly certified or authenticated and
because he had no opportunity to cross-examine adverse witnesses. The
Court of Appeals rejected these contentions and also said at page 611
that rules of evidence applicable in courts of law need not be followed
in deportation hearings. On the authority of the cited case, we must
also reject counsel's exceptions to the admissibility of exhibits R-15
and R-19.
In United States ex rel. Bilokumsky v. Tod, 263 U.S. 149 (1923), the
Court stated, "Silence is often evidence of the most persuasive
character.' The Court in that case also stated that alienage is not an
element of the crime of sedition and that Bilokumsky's testifying
concerning his citizenship status could not have had a tendency to
incriminate him. Similarly, alienage is not an element of section 2 of
the Smith Act (54 Stat. 671). In accordance with the principle
enunciated by the Court in United States ex rel. Bilokumsky v. Tod,
supra, we believe that we are warranted in drawing an inference that the
respondent is an alien from his silence in this proceeding. However,
even without such inference, we believe the Government has met the
burden of establishing alienage in this case.
In connection with the charge stated in the Immigration warrant of
arrest, two government witnesses testified that they had seen the
respondent in Spain about August, September, or October 1937
participating in the civil war under the name of Captain or Major A J .
Exhibit 7 includes a certification as to the non-existence of a record
of the respondent's admission to the United States after June 8, 1922.
Under section 23 of the Immigration Act of 1924 and under section 291 of
the Immigration and Nationality Act, the burden of proof in deportation
proceedings is upon the alien to show the time, place and manner of his
entry into the United States and the latter provision further provides
that if the burden of proof is not sustained, the alien shall be
presumed to be in the United States in violation of law. The respondent
has not testified in contradiction of the evidence that he was absent
from the United States and he has furnished no information concerning
the circumstances of his reentry. Since it is clear that such reentry
occurred about 1937 or 1938 and the records of the Service fail to show
that he was lawfully admitted, we conclude that he was not in possession
of an unexpired immigration visa at that time and that the charge stated
in the warrant of arrest is sustained.
The special inquiry officer has adequately reviewed the testimony of
the Government witnesses concerning the respondent's membership in the
Communist Party. Upon our consideration of the record, we find that
there is reasonable, substantial and probative evidence that the
respondent was a member of the Communist Party of the United States from
approximately 1938 until at least 1946. We conclude, therefore, that
the first lodged charge is sustained.
The remaining charge which was lodged was that the respondent had
failed to furnish notification of his address or other information in
compliance with section 265 of the Immigration and Nationality Act.
Hence, it relates to information which the respondent was required to
submit during January 1953. Counsel stated in his written exceptions
that a letter containing the necessary information had been forwarded to
the Service but the original letter is not part of the record and
counsel did not state the date of the letter nor did he submit a copy
thereof. The certificate of non-existence of a record shows only that
there is no registration record of the respondent prior to October 14,
1952. Under the circumstances, we will pretermit the question of
whether the charge under section 241(a)(5) of the Immigration and
Nationality Act is sustained and deportation will not be ordered on that
ground.
Counsel's contentions that there was a lack of due process, that the
judicial and prosecutive functions of the Service are merged in the same
department and that there was a substitution of special inquiry officers
are rejected on the basis of our decisions in Matter of C , A-5487776,
4, I. & N. Dec. 596, 603, decided November 198 1952; Matter of K ,
A-5204481, 5, I. & N. Dec. 175 (March 18, 1953); Matter of R , E-79791,
5, I. & N. Dec. 589 (December 29, 1953). In connection with counsel's
argument that the special inquiry officer should have granted the
request for a subpoena upon the officer in charge of the Service at
Pittsburgh, we note that the only purpose stated by counsel was to
"discover' information which he believed would support his case, that
the request was not in any sense specific and that there was a failure
to comply with the provisions of 8 C.F.R. 287.4(a). Consequently, we
perceive no error in the special inquiry officer's denial of the request
for a subpoena. We find no merit in the remaining contentions of
counsel and these do not require specific discussion. No application
for discretionary relief has been made. Accordingly, the following
order will be entered.
Order: It is ordered that the special inquiry officer's order of
July 6, 1954, be amended to read as follows:
ORDER: It is ordered that the alien be deported from the
United States in the manner provided by law on the charge stated
in the warrant of arrest and on the following lodged charge:
The Immigration and Nationality Act in that he has been, after
entry, a member of the following class set forth in section 241(
a)(6) of said Act: An alien who was a member of the Communist
Party of the United States.
It is further ordered that the appeal be and the same is hereby
dismissed.
(1) Par. 24, AR 600-750, June 3, 1931, as amended by C3, June 18,
1935 (10 C.F.R. 71.1(a)), provided in part, "Any male person being a
citizen of the United States or an alien who has legally declared his
intention to become a citizen, * * * may be accepted for enlistment; *
* *.'
Savings clause -- Preserves validity of charge lodged under 1917 act prior to December 24, 1952 -- Suspension of deportation -- Application filed under 1917 act is not a valid application under section 244(a) of the Immigration and Nationality Act.
(1) A charge under the Immigration Act of 1917 of "admits crime involving moral turpitude prior to entry' lodged at a deportation hearing on March 27, 1952, is saved by the savings clause, section 405( a) of the Immigration and Nationality Act, and where sustained renders the alien deportable under one of the provisions mentioned in section 19(d) of the 1917 act.
(2) An application for suspension of deportation filed under section 19(c) of the Immigration Act of 1917 cannot be adjudicated under section 244(a) of the Immigration and Nationality Act. Relief under the latter act may be applied for only during a hearing in deportation proceedings under the 1952 act in accordance with regulations issued thereunder.
CHARGES:
Warrant: Act of 1924 -- No immigration visa.
Lodged: Act of 1917 -- Admits crime involving moral turpitude prior
to entry: Perjury.
Discussion: Pursuant to certification under 8 C.F.R. 6.1(c) this
case is before us for review of an order entered by the special inquiry
officer February 26, 1954, granting the respondent suspension of
deportation under section 244(a)(1) of the Immigration and Nationality
Act of 1952. Notice of certification has been served upon counsel. He
has waived oral argument before this Board and requests that the case be
considered on the basis of his brief which he filed when the case was
before the special inquiry officer.
The record relates to a native and citizen of Italy, male, married,
44 years of age, who was lawfully admitted for permanent residence at
the port of New Orleans, Louisiana, on April 27, 1911, when one year of
age. He has resided continuously in the United States since 1911 with
the exception of a one-year absence (1943-1944) when he served overseas
as a civilian employee of the Lockheed Corporation servicing United
States Army bombers under army jurisdiction. He last entered the United
States at the port of New York on March 2, 1944, and was admitted as a
citizen upon the presentation of a United States passport. A warrant
for his arrest charging violation of the Immigration Act of 1924 in that
he last entered without an immigration visa was issued November 22,
1949. During the reopened hearing of March 27, 1952, the respondent was
charged under the act of 1917 with admitting the commission of a crime
involving moral turpitude prior to entry, to wit: Perjury. He perjured
himself falsely claiming birth in the United States in connection with
an application for a passport. He testified that arrangements for the
passport were made by the Lockheed Corporation and he acquiesced in
order that he could more effectively participate in the war effort.
The special inquiry officer in his opinion of February 26, 1954,
concludes that respondent is eligible for suspension of deportation
under section 244(a)(1) of the Immigration and Nationality Act of 1952,
inasmuch as he has found him not deportable under the 1917 act for the
reason that this act was repealed by section 403(a)(13) of the 1952 act
and the new act does not contain a similar charge of deportation. The
Assistant Commissioner, in his memorandum certifying the case to this
Board, seeks a determination of the following issues: (1) the
deportability of the respondent on the criminal charge lodged under
section 19 of the 1917 act, (2) consideration of whether the application
for suspension of deportation filed under the provisions of the act of
1917, as amended, is a valid application for relief under section
244(a)(1) of the Immigration and Nationality Act of 1952, and (3)
assuming that a valid application for relief under section 244(a)( 1),
(supra), is before us, has respondent established his eligibility for
such relief in view of the criminal charge.
This Board does not agree with the conclusion reached by the special
inquiry officer that respondent is not deportable on the criminal charge
lodged during the hearing. This charge was lodged at the hearing of
March 27, 1952, when the 1917 act was in full force and effect. While
it is true that the 1952 act does not contain a similar charge and does
repeal the 1917 act, nevertheless the savings clause of the 1952 act
(section 405(a)) provides, among other things, that nothing contained in
the 1952 act "shall be construed to affect the validity of any * * *
warrant of arrest * * * proceeding which shall be valid at the time this
Act shall take effect; * * * but as to all such * * * proceedings * * *
the statutes or parts of statutes repealed by this Act are, unless
otherwise specifically provided therein, hereby continued in force and
effect.' Since the criminal charge here under consideration is saved by
section 405(a), (supra), and is sustained by the evidence of record, we
find respondent deportable under one of the provisions mentioned in
section 19(d) of the 1917 act. The fact that respondent is not
deportable under the 1952 act for the offense he has admitted subsequent
to his last entry avails him nothing in this instance.
The respondent, at the hearing of April 6, 1950, filed formal
application for suspension of deportation under section 19(c) of the
Immigration Act of 1917. The special inquiry officer finds that
respondent is not now a member of a class of aliens whose deportation
could not have been suspended by reason of section 19(d) of the 1917 act
and proceeds to adjudicate under section 244(a)(1) of the 1952 act, an
application for suspension of deportation filed under the 1917 act prior
to its repeal.
The Service seeks a ruling on the question of whether an application
filed under the 1917 act may be considered as a valid application under
the 1952 act. The regulations dealing with applications for suspension
of deportation under the 1952 act (8 C.F.R. 244.2) provides that they
shall be submitted "in accordance with and subject to the provisions of
8 C.F.R. 242.54(d).' Section 242.54(d), (supra), in turn provides for
the submission of said application for relief "during the hearing'
which, of course, means a hearing in deportation proceedings under the
1952 act. Under the circumstances, an application filed under section
19(c) of the 1917 act cannot be carried over as a "valid application'
under the 1952 act. Cf., Matter of M , E-086054, 5, I. & N. Dec. 472
(B.I.A., October 9, 1953). Furthermore, with regard to the third ruling
requested by the Service and based upon the assumption that a valid
application for relief under section 244(a)(1), (supra), is before us,
the respondent could not establish eligibility thereunder because he is
"a member of a class of aliens whose deportation could not have been
suspended by reason of section 19(d)' of the 1917 act.
The respondent seeks discretionary relief which would permit his
continued residence in the United States. The respondent has resided in
the United States for 43 years. He married a United States citizen in
1939 and is the father of two minor citizen children. He served
honorably in the United States Marine Corps from October 1936 to October
1940. During World War II he was employed as an inspector of aircraft
and in September 1943 was sent to Belfast, Ireland, by the Lockheed
Corporation as a technical expert under the jurisdiction of the armed
services. His deportability under the immigration laws is the end
result of his desire to serve this country's war effort abroad.
The respondent owns and operates a food market valued at $10,000.
His equity in this venture amounts to $3,800. His wife and children are
dependent upon him for support. The respondent's good moral character
is affirmatively established by the evidence of record. Investigation
reveals no criminal record and there is no evidence that he has ever
been a member of any subversive organization. The only offense
committed by respondent is the one which renders him deportable on the
lodged charge.
The respondent's application for relief under the 7th Proviso to
section 3 of the Immigration Act of 1917 is preserved by section 405(a)
of the Immigration and Nationality Act of 1952, inasmuch as it was filed
prior to the effective date of the 1952 act. Although respondent is a
nonquota immigrant under section 101(a)(27) of that act, the exercise of
this proviso in advance in connection with voluntary departure would
avail the respondent nothing because he would be subject to exclusion
under section 212(a)(19) of the 1952 act and we cannot waive a ground of
inadmissibility which arises for the first time under the 1952 act with
7th proviso relief. Respondent, having lost his lawful residence by his
unlawful entry in 1944, is not eligible for relief under section 212(c)
of the 1952 act which is the counterpart of the 7th Proviso to section 3
of the 1917 act.
The respondent, on the occasion of his last entry, however, could
have been admitted lawfully as an alien under waivers then provided by
law because there is a record of his lawful entry for permanent
residence at the port of New Orleans, Louisiana, on April 27, 1911. We
are here concerned solely with a documentary charge and a criminal
charge. The criminal charge could have been waived under the provisions
of the 7th proviso to section 3 of the Immigration Act of 1917, as
amended. The requirement that respondent have an immigration visa at
the time of his last entry on March 2, 1944, could have been waived, in
the discretion of the Attorney General, under section 13(b) of the
Immigration Act of 1924. This discretion has been carried over into
section 211(b) of the Immigration and Nationality Act of 1952.
It has long been the administrative practice to exercise the
discretion permitted by the foregoing provisions of law, nunc pro tunc,
where complete justice to an alien dictates such extraordinary action.
The record before us presents many sympathetic and mitigating factors.
We agree with counsel that the offense which precipitated respondent's
difficulty under the immigration laws, motivated as it was by
respondent's zeal to serve in the defense of this country, is not such a
heinous crime as to warrant respondent's banishment. Respondent's
deportation would amount to just that unless we take the nunc pro tunc
action referred to above. Under the circumstances, we will enter an
appropriate order, nunc pro tunc, waiving the grounds of inadmissibility
at the time of respondent's last entry on March 2, 1944, which now serve
as the basis for the two charges upon which respondent has been found
deportable. Such action will serve to terminate the proceedings before
us.
Order: It is ordered that the alien's admission on March 2, 1944, at
the port of New York, be and the same is hereby authorized, nunc pro
tunc, as a returning resident under the provisions of section 211(b) of
the Immigration and Nationality Act of 1952.
It is further ordered that pursuant to the discretion contained in
the 7th proviso to section 3 of the Immigration Act of 1917, as amended,
the alien be considered as having been lawfully admitted to the United
States for permanent residence at the port of New York on March 2, 1944,
notwithstanding his inadmissibility at that time as one who admits the
commission of the crime of perjury committed in the Southern District of
California before Edmund L. Smith, Clerk, United States District Court,
when he falsely executed an application for a United States citizen's
passport, claiming to be a citizen of the United States, born therein;
subject to revocation in the discretion of the Attorney General, after
hearing, if the alien subsequently commits any offense.
It is further ordered that the proceedings under the warrant of
arrest be and the same are hereby terminated.
Permission to return to unrelinquished domicile -- Section 212(c), Immigration and Nationality Act -- May not be exercised nunc pro tunc where alien neither excludable nor deportable prior to December 24, 1952 -- Narcotics violation -- Section 241(a)(11) of the act.
An alien who entered the United States prior to December 24, 1952, the effective date of the Immigration and Nationality Act, and who is found deportable under that act by reason of conviction for violation of narcotic laws in 1927, may not be granted nunc pro tunc section 212( c) relief with respect to such entry when he was neither excludable nor deportable prior to December 24, 1952.
CHARGE:
Warrant: Act of 1952 -- Conviction of violation of narcotic laws.
Discussion: This case is before the Board on appeal from the
decision of a special inquiry officer in which he found the respondent
ineligible for suspension of deportation and ordered deportation.
The record relates to a 71-year-old married male alien, a native and
citizen of Mexico, who was admitted to the United States for permanent
residence at El Paso, Texas, on June 12, 1911. He testified that he was
absent from the United States on four occasions since that entry, that
is, for a short period in September 1946, from December 2, to December
7, 1948, from December 10, 1948, to January 4, 1949, and from August 27,
1952, to September 8, 1952, at which time he asserted he made his last
entry into this country. It appears that he was readmitted to the
United States on presentation of his resident alien's border-crossing
identification card.
Respondent identified as relating to him a certified copy of a
two-count indictment filed in the United States District Court, Southern
District of California, Southern Division, Los Angeles, California, on
January 5, 1927. Count one of the indictment charges that the
respondent on or about December 30, 1926, violated the Act of February
24, 1919, amending the Act of December 17, 1914, in that he, and another
named defendant, knowingly, willfully, unlawfully and feloniously
purchased, sold, dispensed and distributed approximately one ounce of
heroin and approximately one ounce of cocaine which were not in the
original package. The second count charged that the same defendants on
or about December 30, 1926, violated the Act of May 26, 1922, amending
the Act of January 17, 1914, and the Act of February 9, 1909, in that
they knowingly, willfully, unlawfully, feloniously and fraudulently
received, concealed, bought, sold and facilitated the transportation and
concealment after importation of about one ounce of heroin and about one
ounce of cocaine which the defendants knew had been imported into the
United States contrary to law. The respondent stated in a preliminary
statement made to an officer of this Service that he pleaded not guilty
but was tried by a judge without a jury. In his application for
suspension of deportation dated March 23, 1954, he stated he entered a
plea of guilty. An endorsement on the indictment shows that pleas of
guilty were entered by both defendants. We are satisfied that the
record establishes that the respondent pleaded guilty.
Respondent also identified certified copy of an order entered in the
same court in which the indictment was presented showing that the court.
now pronounces sentence upon defendants herein for the crime of
which they stand convicted, namely, violation of the Harrison
Narcotic Act of February 24th, 1919, amending the Act of December
17th, 1914, and the Jones Miller Act of May 26th, 1922, amending
the Act of January 17th, 1914, and amending the Act of February
9th, 1909, and is the judgment of the Court that each of said
defendants G G and J J S be imprisoned in the Los Angeles County
Jail for the term and period of ninety days on the first count of
the Indictment, and be imprisoned for the term and period of two
years in a Federal Penitentiary to be later designated; and it is
further ordered that the execution of the penitentiary sentence as
to each defendant be suspended on the condition that said
defendants observe the discipline of the County Jail, observe the
laws of the National, State, and local Government relative to
narcotics and remain within the jurisdiction of the Court.
Counsel, in his brief, argues in the alternative. First, he asserts
that the respondent was not convicted of count two of the indictment but
that it should be deemed to have been dismissed. This reasoning is
based upon the fact that the sentence of the court specifically referred
to a 90-day period of imprisonment for the first count but when talking
of the suspended sentence of two years in the penitentiary the court
made no reference to either the first or second count to which it was to
apply. He further asserts that the court refers, in its sentence, to
the word "offense' and "crime' and that these words are in the singular
rather than in the plural as should have been the case if the respondent
had been sentenced on both counts. He then asserts that since this
showed an intention that the respondent be deemed to have been convicted
solely on the first count, it must be concluded that there has been an
acquittal as to the second count.
We are not able to agree with the foregoing argument of counsel. In
the sentence of the court, a portion of which has been quoted above, it
is clearly seen that the court pronounced sentence "for the crime of
which the (respondent) stands convicted namely * * *,' specifying
violations of the Harrison Narcotic Act and the Jones Miller Act.
Furthermore, it is noted that there was a guilty plea not to one count
but in general. We, therefore, do not concur with the argument of
counsel that the respondent was acquitted of the second count, namely,
the violation of the Jones Miller Act of 1909, as amended.
He then argues that the respondent should not be deemed to have been
convicted properly on the first count because the indictment
insufficiently charged the defendant with a violation of the Harrison
Act because of lack of specificity. He, therefore, asserts that the
sentence or judgment based on the indictment is void and that the
respondent has never been convicted. In reply to this assertion of
counsel, it is sufficient to state that in deportation proceedings we
are bound by the record of conviction and that we may not retry or
relitigate the criminal offense.
In view of the foregoing, we conclude that the record adequately
establishes that the respondent has been convicted of violation of the
Harrison Narcotic Act and the Jones Miller Act and that he is deportable
under section 241(a)(11) of the Immigration and Nationality Act.
The respondent applied for suspension of deportation and a special
inquiry officer found him ineligible under section 244(a)(5) of the
Immigration and Nationality Act on the ground that since the respondent
has visited Mexico on three occasions during the past ten years it
cannot be found that he has established physical presence in the United
States during the ten years required (Matter of M , A-2669541, Int.
Dec. No. 442 (5, I. & N. Dec. 261) and Matter of Z A N , T-303081, Int.
Dec. No. 462 (5, I. & N. Dec. 298)).
As previously stated, respondent's counsel's brief argues in the
alternative. His first point relating to nondeportability has been
disposed of. In his second point he argues that if the Board finds the
respondent deportable it should be found that he is eligible for
suspension of deportation under section 244(a)(1) or 244(a)(2) or that
the respondent should be granted relief by a nun pro tunc exercise of
section 212(c) of the Immigration and Nationality Act. Before going
into counsel's arguments specifically, there are certain fundamentals
necessary for a proper understanding of the applicable legal principles
in this case which must be set forth. Basically these principles
establish that the respondent was not excludable or deportable from the
United States until the effective date of the Immigration and
Nationality Act, that is, December 24, 1952. He was not subject to
deportation under the 1909 act because his conviction was not followed
by a sentence to imprisonment for a term of one year or more (Weedin v.
Moy Fat, 8 F.(2d) 488 (C.C.A. 9, 1925)) and that there must be some
actual "imprisonment' to bring the deportable provisions of the act of
1909 into operation and that this does not occur when the alien's
sentence is suspended (United States ex rel. Cassetta v. Commissioner of
Immigration, 56 F.(2d) 826 (C.C.A. 2, 1932); Matter of Y M K ,
A-3758282, 3, I. & N. Dec. 387, 389; Matter of S , A-1892436, 3, I. &
N. Dec. 460). Furthermore, the act of 1909 provides only for the arrest
and deportation of an alien, who after entry has been convicted and
sentenced. In the event such an alien reenters the United States he
would not be subject to deportation (Matter of H , 56196/392, 2, I. &
N. Dec. 406, 409). Similarly, the respondent was not deportable or
excludable under the Act of February 18, 1931, as amended, because that
act relates only to offenses committed on or after its effective date.
Inasmuch as the foregoing establishes lack of excludability or
deportability until December 24, 1952, section 212(c) of the Immigration
and Nationality Act may not be applied nunc pro tunc to any of the
respondent's past entries by virtue of any asserted inadmissibility or
deportability because of the narcotic convictions per se. One of
counsel's arguments is that the respondent's last entry took place after
the enactment of the Immigration and Nationality Act and that therefore
the respondent was excludable. It is true that the act had been enacted
but its effective date was December 24, 1952, and consequently the
respondent was not excludable in September 1952 as asserted by counsel.
Counsel also argues that we should find that the conviction of violation
of the Harrison Narcotic Act involves moral turpitude and, therefore,
the nunc pro tunc exercise of section 212(c) would cure respondent's
present deportability. Whether or not a violation of the Harrison
Narcotic Act involves moral turpitude need not be disposed of by us at
this time because, even if it does, and even if section 212(c) were
exercised retroactively to obviate excludability because of the
conviction or admission of a crime involving moral turpitude,
deportability would still remain by virtue of conviction of a law
relating to narcotics which is separate and apart from those parts of
the immigration statutes relating to crimes involving moral turpitude.
Section 212(c), therefore, may not be exercised retroactively in this
case.
We now turn to counsel's argument that the respondent is eligible for
suspension of deportation under section 244(a)(1) or (2). Section
244(a)(1) requires that the respondent be physically present in the
United States for a continuous period of not less than 7 years
immediately preceding the date of his application for suspension.
Section 244(a)(2) requires physical presence in the United States for
not less than 5 years immediately preceding respondent's application for
suspension. Counsel has asserted that it was the congressional intent
to continue the interpretations under section 19(c) of the act of 1917
for 5 years after the enactment of the Immigration and Nationality Act.
He asks us to find therefore that since the 1917 act required residence
as distinguished from physical presence that we interpret the present
act as covering the respondent's case. We will not belabor this point.
Irrespective of any other argument advanced by counsel concerning the
alleged applicability of subsections (a)(1) and (a)(2) of section 244,
we rely on our earlier decisions in which we have held that physical
presence means just what it says and that a person who has been out of
the United States during the period he is required to establish physical
presence cannot establish that required physical presence (Matter of M ,
supra, and Matter of Z A N , supra). The special inquiry officer
properly found that the respondent was not eligible under subsection
(a)(5) of section 244 (Matter of M , supra), nor is he eligible for
voluntary departure under section 244(e) because he is deportable under
section 241(a)(11) of the Immigration and Nationality Act.
The case presents many equities in favor of this respondent. He has
been in the United States for 43 of the 71 years of his life and has a
lawfully resident alien spouse whom he is supporting. However, we are
not at liberty to grant relief not authorized by Congress.
The appeal must be dismissed.
Order: It is ordered that the appeal be and the same is hereby
dismissed.
Crime involving moral turpitude -- Evidence -- Where conviction, not based upon specific statute, was result of inherent powers of court, its opinion will be relied upon in determining nature of crime -- Criminal contempt of court, Canada.
(1) Where conviction in Canada of gross contempt of court is not based upon a violation of any specific statute but was the result of the inherent powers of the court and no complaint or indictment was filed, the opinion of the court will be relied upon in determining whether the respondent was convicted of a crime involving moral turpitude.
(2) Criminal contempt of court in Canada is an offense which may or may not involve moral turpitude. In the instant case, the respondent and others did not obey an injunction requiring them to desist from congregating around a vessel so that others may not load it. The effect of this conduct was to publicly depreciate the authority of the court tending to bring the administration of justice into scorn. Under the facts in this case, the offense does not involve moral turpitude.
EXCLUDABLE:
Section 212(a)(9), Act of 1952 -- Convicted of crime.
Discussion: This case is before the Board on appeal from the
decision of a special inquiry officer in which he orders the applicant's
exclusion.
The applicant is a 33-year-old married male, an alien, native and
citizen of Canada, who arrived at the port of Blaine, Washington, on
August 23, 1954, and applied for determination of admissibility for
border-crossing purposes as a visitor for business and pleasure for
periods of up to two weeks at any one time. The applicant testified
that he is, and has been since March 1951, an elected official of Local
1-80, International Woodworkers of America, Duncan, British Colombia,
presently holding the office of president. He desires a determination
of admissibility in order that he may attend international conventions
of the union as well as other business matters for that organization and
so that he could enter for pleasure.
The applicant was convicted on September 16, 1952, in the Supreme
Court of British Columbia of gross contempt of court and was sentenced
to three months imprisonment and fined $3,000. The Court of Appeal for
British Colombia affirmed the judgment on October 7, 1952, and the
Supreme Court of Canada affirmed the judgment on April 28, 1953. In
affirming this judgment, the Supreme Court of Canada found that the
applicant was found guilty of criminal contempt of court.
The decision of the Supreme Court of Canada as well as other parts of
the record and research into Canadian law reflect that the conviction
was not based upon a violation of any specific statute but that it was
the result of the inherent powers of the court. No complaint or
indictment, as we know them, was filed. The applicant was brought into
court on a writ of attachment for contempt in failing to obey the order
of the court. Under ordinary circumstances, in determining whether a
crime involves moral turpitude we look to the statute which has been
violated and, where necessary, to certain portions of the record of
conviction, which includes the complaint or indictment. Absent a
statute and complaint or indictment in this case, it is appropriate to
examine the opinion of the Supreme Court of Canada in order to determine
whether the applicant was convicted of a crime involving moral
turpitude.
The Supreme Court stated the facts to be as follows: Plaintiff's
ship arrived in Nanaimo on July 7, 1951, to load lumber piled on the
dock. The International Woodworkers of America were on strike but they
were not the ones to load the ship, such loading to have been done by
longshoremen. The Woodworkers established the picket lines which the
longshoremen refused to cross. The plaintiff applied ex parte and
obtained an injunction restraining the applicant and others, from
watching or besetting the ship, from preventing or interfering with its
loading and from preventing access to and from the ship by any persons
seeking to embark or depart from it. The order was served on the
applicant on July 15, 1951, and a copy was posted on the bridgehead in
the presence of the applicant and others. On the following day, the
sheriff found approximately 180 men blocking the ship and displaying
posters setting forth the fact that the Woodworkers were on strike.
Later that day, several longshoremen arrived and when the applicant was
informed that they were longshoremen he advised them, pursuant to a
question asked of him if they were to load, that they were not. On July
18 and 19 the sheriff found pickets still patrolling the bridgehead.
July 20th was Sunday and no pickets were present but on July 21st
pickets were again at the bridgehead just as they were on July 22d. On
the latter date, the applicant and others served notice of a motion for
an order setting aside the injunction and on July 23rd the plaintiff
moved to commit those concerned for disobediance to the said order. The
motions were returnable on July 24 but on that day the parties to the
action settled their differences, it being agreed that the plaintiff
would discontinue his action and the motion to commit, and that the
motions would be spoken to on the 29th. On July 29th, the Chief Justice
of British Colombia was informed by counsel of the position taken but
the Chief Justice indicated that on the record it appeared that there
might have been a contempt of which the court should take notice.
Thereafter, the applicant was convicted as aforesaid.
The opinion of the Supreme Court of Canada contains a lengthy review
of the subject of criminal and civil contempt. It held that the Court
of Chancery has for centuries enforced its orders by contempt
proceedings, "but it is well settled that such orders, when made in aid
of execution of process for the benefit of a party, are to be regarded
as purely civil in nature. It is equally well settled that conduct
which renders appropriate contempt proceedings in aid of execution may
have a criminal aspect as well.' Thus, clandestine removal from the
proper custody of a ward of the court was held to be criminal contempt.
Other cases were cited in which distinctions between civil and criminal
contempt were discussed and the general tenor of these cases was that
the conduct complained of may transcend civil matters and impose upon
the order of the court in a public fashion, thus tending to injure the
public or the administration of justice in some manner.
The Supreme Court of Canada stated that in its opinion the statement
in Oswald, 3rd edition, p. 36, correctly distinguishes between civil and
criminal contempts (pp. 10 and 11 of the court's opinion). Oswald
stated:
And, generally, the distinction between contempts criminal and
not criminal seems to be that contempts which tend to bring the
administration of justice into scorn, or which tend to interfere
with the due course of justice, are criminal in their nature; but
that contempt in disregarding orders or judgments of a Civil
Court, or in not doing something ordered to be done in a cause, is
not criminal in its nature. In other words, where contempt
involves a public injury or offence, it is criminal in its nature,
and the proper remedy is committal -- but where the contempt
involves a private injury only it is not criminal in its nature *
* *.
In discussing the case the Supreme Court of Canada stated that so far
as the immediate parties to the action were concerned all matters
between them had been adjusted, the plaintiff was no longer interested
in enforcement of the injunction and had agreed to drop the proceedings
for enforcement by way of committal. However, the Supreme Court of
Canada then went on to say:
It is idle to suggest that on the evidence the presence of
these large numbers of men blocking the entrance to the bridge was
intended merely for the purpose of communicating information.
That had been very efficiently done for a considerable time by the
six pickets with their signs or cards, and the notices at the
bridgehead. The congregation of the large numbers of men at the
times that the longshoremen were to arrive had no other object or
defect than to present force.
The context in which these incidents occurred, the large
numbers of men involved and the public nature of the defiance of
the order of the court transfer the conduct here in question from
the realm of a mere civil contempt, such as an ordinary breach of
injunction with respect to private rights in a patent or
trade-mark, for example, into the realm of a public depreciation
of the authority of the court tending to bring the administration
of justice into scorn. It is to be observed that the nuisance
created by the incidents referred to brought the appellants within
the scope of section 501 of the Criminal Code; Reners v. The
King, 1926, S.C.R., 499. Section 165 as well as section 573 were
also infringed. There is no doubt that the appellants and those
associated with them were acting in concert. Their conduct was
thus entirely criminal in character in so far as these specific
offences are concerned. Over and above these offences, however,
the character of the conduct involved a public injury amounting to
criminal contempt.
Section 501 of the Criminal Code referred to in the above quotation
relates to intimidation by violence, by threats, by following, by hiding
property, by following in a disorderly manner, or by watching or
besetting a house or place of business, etc. Section 165 relates to
disobeying a lawful order of court, with certain exceptions. Section
573 refers to conspiracy to commit an indictable offense. It will be
noted, however, that the applicant was not convicted under either of
these 3 sections.
We believe that we are bound by the opinion of the Supreme Court of
Canada in the instant case and in determining whether the offense
involved moral turpitude we will look to it for a determination of the
facts and the Canadian law bearing in mind, however, that the standards
applicable to the conduct in question are the standards applied in the
United States in order to determine whether moral turpitude inheres.
An evaluation of the foregoing leads to the conclusion that criminal
contempt in Canada is an offense which may or may not involve moral
turpitude. In examining the instant case we find that the applicant and
others did not obey an injunction requiring them, in effect, from
desisting from congregating around the vessel so that others may not
load it. That is the conduct which resulted in the contempt action.
The effect of that conduct was to publicly depreciate the authority of
the court tending to bring the administration of justice into scorn.
Moral turpitude, however, as has often been said, is a vague term and
has been defined as anything done contrary to justice, honesty,
principle, or good morals; an act of baseness, violence or depravity in
the private and social duties which a man shows to his fellowman or to
society in general, contrary to accepted and customary rules of right
and duty between man and man. It implies something immoral in itself.
Similarly, it has often been repeated that it is in the intent that
moral turpitude inheres.
While we do not condone the action of the applicant in violating the
injunction of the Supreme Court of British Columbia, we do not feel
that, under the facts in this case, the offense involved moral
turpitude. It has not been made to appear that there was a vile or base
intent or that the conduct itself was vile or base and so inherently
immoral as to contain the ingredient of moral turpitude. It appears
from argument of counsel, and this is supported inferentially by the
opinion of the Supreme Court of Canada, that the applicant believed the
original injunction was being dissolved. Of course, he could not take
it upon himself to disobey it, but in disobeying it, it cannot be found,
in this case that the elements of moral turpitude previously discussed
were present. The applicant's conduct did not show the hardness of
heart and callousness which so frequently are appendages to a crime
involving moral turpitude. As previously stated, the record does not
make it clear that a base or vile intent was present.
The appeal should be sustained.
Order: It is ordered that the appeal be and the same is hereby
sustained.
Filipinos -- Deportation -- Section 241(a)(12) of Immigration and Nationality Act -- Last entry before May 1, 1934.
A Filipino who last arrived in the United States in 1925, when he was a national of the United States, is not deportable under section 241(a)(12) of the Immigration and Nationality Act, since the entry referred to in that subsection must be made by one who was an alien at the time (citing Barber v. Gonzales, 347 U.S. 637 (1954)).
CHARGE:
Warrant: Act of 1952 -- Section 241(a)(12) -- Aliens who are or have
been supported by, or receive or have received, in whole or in part, the
proceeds of prostitution.
Discussion: The special inquiry officer found the subject deportable
on the charge stated above, authorized suspension of deportation under
section 244(a)(5) of the Immigration and Nationality Act, and certified
the case to the Assistant Commissioner for review. That official, in
turn, certified the case to this Board pursuant to 8 C.F.R. 6.1(c).
This record relates to a 50-year-old male, a native and citizen of
the Philippine Islands. He last entered the United States at Norfolk,
Virginia, on April 25, 1925. He has testified that he has remained in
the United States at all times since that date.
The respondent was convicted on March 31, 1941, on his plea of
guilty, by the Court of Special Sessions, New York City, of the crime of
living on the earnings of a prostitute, which crime was committed on
February 26, 1941, and for some time prior thereto in the City of New
York. He was sentenced to and served a term of one year. He has
testified, in connection with the foregoing, that he lived on the
earnings of a prostitute in New York City for about six months, during
which time he received 50 per cent of the earnings of a woman who
practiced prostitution in his room.
On the basis of the foregoing, the special inquiry officer found the
respondent to be an alien who has been supported by, or has received, in
whole or in part, the proceeds of prostitution. He then concluded that
the respondent was deportable on the charge above stated. In so
concluding, he found that entry as an alien was not an essential element
to deportability on the charge under consideration.
We, however, disagree with the conclusion of deportability reached by
the special inquiry officer. We do so on the basis of the decision of
the Supreme Court in the case of Barber v. Gonzales, 347 U.S. 637
(1954). In that case, a native and citizen of the Philippine Islands
came to the continental United States and lived here at all times
thereafter. He was sentenced to imprisonment in 1941 and 1950 for
crimes involving moral turpitude. His deportation was sought under
section 19(a) of the Immigration Act of 1917, which requires deportation
for such crimes if committed after "entry.' The Court held that the
statute under consideration made entry as an alien an essential element
of deportability and that Gonzales was not an alien when he entered the
United States in 1930, prior to the Philippine Independence Act of March
24, 1934, but a national of the United States. Accordingly, the Court
held that Gonzales could not be deported.
Here, deportation is sought under section 241(a)(12) which reads:
Any alien in the United States * * * shall, upon the order of
the Attorney General, be deported who -- by reason of any conduct,
behavior or activity at any time after entry became a member of
any of the classes specified in paragraph (12) of section 212(a);
* * *.' Emphasis supplied.
Section 212(a)(12) of that act provides:
"* * * aliens who are or have been supported by, or receive or
have received, in whole or in part, the proceeds of prostitution *
* *.'
The above words set up entry as an essential element to
deportability. According to the Gonzales case (supra), that entry must
have been as an alien. Since the respondent was not an alien, but a
national of the United States, at the time of his entry in 1925, we hold
that he is not deportable on the grounds urged by the special inquiry
officer. We so hold on the basis of the Gonzales case.
On the basis of the foregoing, there being no other grounds of
deportation urged against the respondent, we find that the proceedings
must be terminated.
Order: It is ordered that the order entered by the special inquiry
officer on January 13, 1954, be withdrawn and that the proceedings be
terminated.
Permission to return to unrelinquished domicile -- Section 212(c) of Immigration and Nationality Act -- May be exercised in behalf of deportable alien.
The fact that the status of a person lawfully admitted for permanent residence may have changed by reason of his subsequent deportability does not preclude the exercise of the discretionary authority contained in section 212(c) of the Immigration and Nationality Act, notwithstanding the definition contained in section 101(a)(20) of the act.
CHARGES:
Warrant: Act of 1952 -- Section 241(a)(1) -- Convicted prior to
entry, to wit: Petit Larceny.
Discussion: This case is before us on appeal from an order entered
by the special inquiry officer on April 26, 1954, denying an application
for the relief provided by section 212(c) of the Immigration and
Nationality Act, but granting voluntary departure with the provision
that if the alien fails to depart as required, he is to be deported on
the charge contained in the warrant of arrest.
These are the facts. The respondent is a 58-year-old married male, a
native and citizen of Spain. He was lawfully admitted to the United
States for permanent residence on October 11, 1917. Thereafter, he was
temporarily absent from the United States three times, effecting
reentries on June 12, 1923, January 30, 1950, and October 6, 1952. The
respondent has been convicted of the crime of petit larceny on four
different occasions -- May 3, 1935, August 1, 1935, October 24, 1935,
and January 23, 1936, the amounts involved being fifty cents, twenty
cents, twenty cents, and twenty-five cents, respectively. The
respondent was married in Cuba to a citizen of Spain on October 1, 1952,
and has a child born since then in Cuba. The spouse and the child
reside in Cuba. The respondent testified that he sends approximately
$100 per month for their support. He is employed as a pantryman,
earning about $60 per week. In addition to the four convictions noted
above which form the basis for the alien's deportability, he was also
convicted on February 17, 1933, and on September 30, 1937, on the charge
of unlawfully operating a coin box receptacle. In March 1945 he was
arrested on a charge of gambling and sentenced to pay a fine of $250 or
serve 90 days in jail. He served the 90-day sentence. A check of local
and Federal records reveals no arrests or convictions other than as
above stated. Inquiry has failed to disclose any subversive activities
on the part of the respondent.
The issues to be decided by us are (1) do we have the authority to
accord the relief requested; and (2) if so, should we exercise it
favorably in the respondent's behalf.
Section 212(c) of the Immigration and Nationality Act (1952) provides
as follows:
(c) 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 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).
The act of 1917 contained a similar provision in the 7th Proviso to
section 3. It was there provided:
That aliens returning after a temporary absence to an
unreliquinshed United States domicile of seven consecutive years
may be admitted in the discretion of the Attorney General, and
under such conditions as he may prescribe.
By comparing the provisions in these two acts, it is patent that the
1952 act limited the areas in which the relief in issue may be granted
in two respects -- (1) lawful admission for permanent residence became a
specific requirement; and (2) the relief could no longer be given
unless the alien left voluntarily and not under an order of deportation.
Since the respondent in this case did enter the United States
lawfully for permanent residence in 1917 and his temporary absences were
voluntary, he appears at least at first blush to be eligible for section
212(c) relief to the same extent as he would have been eligible for the
7th Proviso relief under section 3 of the 1917 act.
It is beyond the realm of dispute that we possessed the power to
exercise 7th Proviso relief in favor of this alien. What hinders us
from invoking section 212(c) relief in his behalf? There is one hurdle
and we now address ourselves to that problem. The term "lawfully
admitted for permanent residence' employed in section 212(c) is a
defined term. The definition is set forth in section 101(a)(20) as
follows:
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.
The Immigration and Naturalization Service holds that once an alien
is rendered deportable, his status has changed from an alien lawfully
admitted for permanent residence to an alien illegally in the United
States and he may not be granted relief under section 212(c). Under
this interpretation, the relief announced in section 212(c) may not be
exercised in any deportation proceeding. It likewise may not be invoked
in exclusion proceedings in which it is found that a charge is involved
under which the alien was deportable prior to his departure, whether
deportation proceedings were instituted or not. And carried to its
logical conclusion, it could likewise mean that we should not exercise
that relief in any exclusion proceeding, as by leaving the United States
an alien who thereby becomes inadmissible, no longer has a lawful status
to which he may return.
It is axiomatic that a statute should receive a sensible
construction, such as will effectuate the legislative intention, and if
possible, so as to avoid an unjust or an absurd conclusion (Lau Ow Bew
v. United States, 144 U.S. 47, 59 (1892); Ozawa v. United States, 260
U.S. 178, 194 (1922); United States v. Kirby, 7 Wall. 482, 478 (1869)).
Yet the Service position would prohibit entirely the exercise of
section 212(c) relief nunc pro tunc and would limit its advance and
simultaneous application to charges which form grounds for exclusion and
which at the same time are not or were not bases for deportation.
Although not urged by the Service, logically the Service view could bar
the exercise of section 212(c) relief in all cases. Does the
legislative history of the act demand this result? Does the language of
the statute require it?
We should bear in mind that 7th Proviso relief has been accorded to
aliens in deportation proceedings for many years (In the Matter of L ,
1, I. & N. Dec. 1, decided by the Board August 29, 1940, approved by the
Attorney General). The fact that such authority was being exercised in
these proceedings was well known to the legislators. The Senate
Judiciary Committee's comprehensive study which preceded the 1952 act,
Senate Report No. 1515, 81st Congress, 2d session, reviewed prevailing
practices under the 7th Proviso and made certain recommendations. They
noted that the 7th Proviso had been administratively exercised in behalf
of an alien who originally entered the United States on a passport
fraudulently obtained, passport to which the alien was not entitled, as
a deserter, with a fraudulently obtained visa, with a forged visa or
without a visa -- and expressed disapproval of these practices. They
observed that the 7th Proviso had been favorably exercised in behalf of
an alien who had been deported from the United States, and recommended
that this be changed in the new law to forbid the exercise of relief in
such cases. They recorded that an alien who had proceeded abroad had
been permitted to add the period of his residence abroad to the period
of his residence in the United States in order to accumulate seven years
residence in the United States, and expressed their dissatisfaction with
this device. Their recommendations are trenchantly stated on page 384
of the Report:
The subcommittee recommends 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. They must have proceeded abroad
voluntarily and not under an order of deportation to be eligible
for the relief. Furthermore, it is the opinion of the
subcommittee that the provision should not be applicable in the
case of aliens who are excludable under the law as subversives.
It is likewise worthy of note that in Chapter VI of this Report
dealing with "Adjustment of Status,' the following is stated:
Legality of status is a matter of degree. Most aliens in this
country are here lawfully for all purposes. A few are eligible
for reentry documents, but do not have status sufficient for
naturalization purposes; a large number are eligible neither for
naturalization nor reentry documents, but still are not
deportable; and many are subject to deportation, yet eligible to
have that status changed without deportation. (Emphasis
supplied.)
The Report pointed to various devices whereby there might be an
adjustment of status without deportation. As an example of one of the
administrative procedures whereby this is accomplished, they noted on
page 592 that "under the 7th Proviso to section 3 of the Immigration Act
of February 5, 1917, aliens returning after a temporary absence to an
unrelinquished United States domicile for seven consecutive years may be
admitted in the discretion of the Attorney General and under such
conditions as he may prescribe.' On pages 609 to 611 the subcommittee
made recommendations for continuation of certain practices for
adjustment of status and for discontinuance of others. And although no
affirmative statement is made that relief such as is set forth in the
7th Proviso should be continued in deportation proceedings, neither is
there anything to indicate that the Congress wished it discontinued.
In Senate Report No. 1137, 82d Congress, 2d sess., the Committee on
the Judiciary recorded its views on the proposed revision of the
immigration and nationality laws. The Senators commented on the
provisions of the 7th Proviso to section 3 of the 1917 act and expressed
their opinion regarding changes which were to be made under the new law.
They expressly noted that under the 1917 act the Attorney General had
been exercising 7th Proviso relief even though the alien had never been
lawfully admitted to the United States and pointed out that the
comparable discretionary authority vested in the Attorney General in
section 212(c) 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.
In view of the detailed study given to the 7th Proviso problem, the
specificity with which the practices disapproved were enumerated, the
notice taken of the use of this relief in deportation proceedings, and
the item by item listing of recommendations as to change, it is
unthinkable that there would be no expression of disapproval and no
recommendation as to change, if the use of 7th Proviso type of relief
were to be barred under the new act in all deportation proceedings. Yet
there is nothing to indicate that Congress wished to cut off this unique
relief in deportation proceedings. It is our conclusion, therefore,
that the legislative history of the act does not require the
interpretation urged by the Service. On the contrary, in our opinion,
it repudiates the suggested construction.
What about the language in the statute? The term "such status not
having changed' employed in the definition of "lawfully admitted for
permanent residence' in section 101(a)(20) must still be considered.
But in this regard we should recall the admonition of the Supreme Court
in Atlantic Cleaners and Dyers, Inc., et al v. United States, 286 U.S.
427, 433:
Where the subject matter to which the words refer is not the
same in the several places where they are used, or the conditions
are different, or the scope of the legislative power exercised in
one case is broader than that exercised in another, the meaning
well may vary to meet the purposes of law, to be arrived at by a
consideration of the language in which those purposes are
expressed, and of the circumstances under which the language was
employed * * *.
It is not unusual for the same word to be used with different
meanings in the same act, and there is no rule of statutory
construction which precludes the courts from giving to the word
the meaning which the legislature intended it should have in each
instance.
There is specific provision in section 247 whereby certain resident
aliens may have their status adjusted to nonimmigrant status. And it is
logical to assume that the Congress, having expressed a serious
disapproval of the practice whereby 7th Proviso relief was accorded to
aliens who had been admitted to the United States in a nonimmigrant
status, wished to make it clear that not only was this type of relief
not to be granted to aliens unless lawfully admitted as immigrants, but
to emphasize that it was also not to be granted to aliens who thereafter
changed their status from that of immigrants to nonimmigrants. It is
our conclusion that in order to give effect to the overall legislative
design, this is the meaning which must be given to the term "such status
not having changed.'
The respondent in the instant case has resided in the United States
for 37 of the 58 years of his life. His record since 1945 has been
without blemish. He is gainfully employed and contributes to the
support of his family. He is favorably regarded by his employer and by
his neighbors. We feel that he merits the relief which he has
requested.
Order: It is ordered that the order of the special inquiry officer
be and the same hereby is withdrawn.
It is further ordered that pursuant to the discretion contained in
section 212(c) of the Immigration and Nationality Act, the alien be
considered as having been lawfully admitted to the United States for
permanent residence at New York, New York, on January 30, 1950, and at
Miami, Florida, on October 6, 1952, notwithstanding his inadmissibility
on those occasions as one who was convicted of a crime involving moral
turpitude, to wit: petit larceny on May 3, 1935, August 1, 1935,
October 24, 1935, and January 23, 1936, subject to revocation in the
discretion of the Attorney General, after hearing, if the alien
subsequently commits any offense.
It is further ordered that the proceedings be terminated.
Order: The decision and order of the Board of Immigration Appeals,
dated November 24, 1954, and certified to me for review, in accordance
with section 6.1(h)(1)(iii) of Title 8 of the Code of Federal
Regulations, on November 26, 1954, are hereby affirmed.
Jurisdiction of B.I.A. -- Certification, 3 C.F.R. 6.1(c) -- Authority of the Attorney General under section 103(a) of Immigration and Nationality Act has not been delegated.
(1) A proper basis for certification of a deportation case to the Board of Immigration Appeals exists where there is a question concerning the correctness of the decision. The regulations (8 C.F.R. 6.1(c)) do not contemplate certification of cases where the decision is not challenged and the only issue involved is some matter preliminary or ancillary to but not part of the decision.
(2) Section 103(a) of the Immigration and Nationality Act confers
unlimited authority on the Attorney General with respect to all
questions of law to the extent that his rulings are binding on other
departments of the government. The Attorney General's authority
thereunder to resolve divergent legal opinions among different
governmental departments has not been delegated to special inquiry
officers.
Discussion: Counsel has filed a petition in the above-entitled
proceeding, requesting certification of the case to this Board and to
the Attorney General.
The respondent is a 41-year-old male, native and last a citizen of
Poland, whose only entry into the United States occurred on August 29,
1950, when he was admitted as a visitor for a temporary period. His
last extension expired on November 8, 1951. In a written decision dated
July 8, 1954, the special inquiry officer concluded that the alien was
deportable solely on the lodged charge which was that the respondent had
failed to comply with the conditions of his status as a visitor. He
granted voluntary departure and pre-examination with a further provision
that the respondent be deported if he failed to depart voluntarily.
Since no appeal was taken, this order has become final. On October 20,
1954, the field office of the Service granted the respondent until
January 28, 1955, within which to effect his voluntary departure.
This respondent was an unmarried person when he applied for a
nonimmigrant visa to an American consular officer in Israel on July 18,
1950, but he falsely stated at that time that he was married and that
his wife was residing in Tel Aviv, and he presented a letter to the
consular officer, purporting to be from his wife, to the effect that she
consented to his visiting the United States. Counsel's petition
indicates that an American consular officer in Canada has under
consideration (presumably because of the provisions of section 212(a)(
19) of the Immigration and Nationality Act) the question of whether an
immigrant visa may be issued to the respondent in view of his false
statement concerning his marital status in 1950. The special inquiry
officer, in his decision of July 8, 1954, concluded "that the
misrepresentation as to his marital status was not material and did not
invalidate his visa.' Counsel, through his request for certification,
seeks to make the quoted conclusion of the special inquiry officer a
ruling by the Attorney General on a question of law and thus binding on
the American consular officer.
We have carefully considered counsel's arguments in his petition and
the cases cited in support thereof. We fail to perceive the
applicability of United States ex rel. Trinler v. Carusi, 166 F.(2d)
457 (C.C.A. 3, 1948) and United States ex rel. Katnic v. Rimer, 25 F.
Supp. 925 (S.D.N.Y., 1938). In addition, we note that the principal
question decided in the Trinler case, (supra), was subsequently decided
to the contrary by the Supreme Court in Heikkila v. Barber, 345 U.S.
229, 235 (1953).
Counsel does not ask this Board or the Attorney General to review and
approve the special inquiry officer's conclusion quoted above, but he
desires that, without any further consideration of whether the
conclusion is correct or incorrect, it be elevated to the status of a
ruling by the Attorney General on a question of law within the purview
of section 103(a) of the Immigration and Nationality Act. We note that
the conclusion relied upon by counsel does not even rise to the point of
being included in the formal conclusions of law of the of the special
inquiry officer. We believe it is clear that the proviso in section
103(a) of the Immigration and Nationality Act was intended to vest in
the Attorney General the final authority to rule on questions of law
where there was a divergence of opinion between the Attorney General,
the President or the Department of State and officers of that
Department. In the instant case, the Department of State had no
opportunity to present its views prior to the decision rendered by the
special inquiry officer. It would be entirely contrary to what we
consider to be the intent of this statutory provision if every legal
question decided by every special inquiry officer in the United States
were treated as being the ruling of the Attorney General on a question
of law. We are convinced that such a construction of section 103(a)
would be completely opposed to the intent of Congress and we must reject
the contention of counsel that legal conclusions of special inquiry
officers can be considered determinations by the Attorney General within
the purview of section 103(a) of the Immigration and Nationality Act.
Counsel has cited cases for the proposition that the Attorney General
or other cabinet officers may delegate certain of their official duties
to subordinates and that the actions of the subordinates, within their
delegated authority, have the same legal effect as if the cabinet
officer himself had performed the act. We agree that this is a correct
statement of the law and that this rule would comprehend the issuance of
immigration warrants of arrest, orders and warrants of deportation,
etc., all of which have been specifically delegated to the Attorney
General's subordinates.
In considering whether there has been any delegation of the Attorney
General's authority under section 103(a) of the Immigration and
Nationality Act, we note that 8 C.F.R. 242.61(a) requires that a written
decision of a special inquiry officer shall contain "conclusions of law
as to deportability.' This is a duty imposed upon such officers rather
than a delegation of any authority of the Attorney General. Legal
conclusions not directly connected with the issue of deportability are
not referred to in the regulation. A special inquiry officer's
conclusions of law as to deportability are subject to reversal by this
Board on appeal, and these officers are also restricted in this respect
by the provisions of 8 C.F.R. 6.1(g), making precedent decisions of this
Board binding in all proceedings involving the same issue. On the other
hand, the proviso in section 103(a) of the Immigration and Nationality
Act confers unlimited authority on the Attorney General "with respect to
all questions of law' to the extent that his rulings are binding on
other departments of the government. As we have indicated above, the
obvious intent of Congress that the Attorney General should resolve
divergent legal opinions among different governmental departments could
hardly be accomplished by delegating this authority to special inquiry
officers. Counsel has not pointed to any provision of the regulations
which could be considered as a specific delegation to special inquiry
officers of the Attorney General's authority under section 103(a) of the
Immigration and Nationality Act and we have found none. We hold that
this authority has not been delegated to special inquiry officers.
While we have considered it appropriate above to rule on the broader
aspects of the question, there are additional reasons why it would be
necessary to deny counsel's request. In the first place, we think that
the special inquiry officer's conclusions concerning immateriality of
the misrepresentation and the validity of the visa may properly be
considered as being only dicta. This is so because the matter for
determination by him was whether the proceeding should be terminated or
whether the warrant charge, the lodged charge, or both charges should be
sustained. There was no charge questioning the validity of the
nonimmigrant visa. The warrant contained the charge that the respondent
was excludable at the time of his entry because he was "an immigrant not
in possession of a valid immigration visa' and not exempt from the
presentation thereof, and the lodged charge was that the respondent,
after his admission as a visitor, failed to comply with the conditions
of his status. These two charges have been used for many years, and it
has long been the practice for the officer conducting the hearing to
determine which was applicable, sustaining that charge and dismissing
the other. We believe, therefore, that in this case it was only
necessary for the special inquiry officer to determine whether the
respondent was an immigrant or nonimmigrant at the time of entry and
that the question of the validity of the nonimmigrant visa was not
pertinent to the decision.
Secondly, our jurisdiction under 8 C.F.R. 6.1(c) on the basis of
certification relates only to cases arising under subparagraphs (1)
through (6) of 8 C.F.R. 6.1(b). Subparagraph (2) thereof refers to the
decisions of special inquiry officers in deportation cases. Hence, it
is our conclusion that a proper basis for certification exists where
there is a question concerning the correctness of the decision but that
the regulations do not contemplate certification of cases where the
decision is not challenged and the only issue involved is some matter
preliminary or ancillary to but not part of the decision. For the
foregoing reasons, we will deny counsel's request that we order
certification of the case to this Board.
Counsel has also requested certification of the matter to the
Attorney General. There is, of course, no provision in the regulations
for the Attorney General's review of a decision of a special inquiry
officer, and 8 C.F.R. 6.1(h) specifically provides, in part, "the Board,
shall refer to the Attorney General for review of its decision * * *'
certain classes of cases. In accordance with subparagraph (ii) of that
regulation, consideration has been given to counsel's request. Neither
the chairman nor a majority of the Board believes that our decision in
this case should be referred to the Attorney General for review.
Accordingly, this part of counsel's petition is also denied.
Order: It is ordered that the petition for certification of
respondent's case be and the same is hereby denied.
Single scheme of criminal misconduct -- Section 241(a)(4) of Immigration and Nationality Act.
Conviction on two counts of income tax evasion with each count
relating to a separate year is not conviction of crimes arising out of a
single scheme of criminal misconduct within the meaning of section
241(a)(4) of the Immigration and Nationality Act. Charges combined in
one indictment or information under separate counts constitute distinct
crimes; and the instant information makes no mention of any continuing
scheme of tax evasion. Separate and independent acts of income tax
evasion in two given years are neither continuing offenses nor a
continuing scheme of evasion. (Cf. 5, I. & N. Dec. 470 and 728, and
Interim Decision No. 614.)
Discussion: This case is before us on motion of counsel for
reconsideration of the Board's decision of May 28, 1954, holding
respondent deportable under section 241(a)(4) of the act of 1952 as an
alien convicted of two crimes after entry not arising out of a single
scheme of criminal misconduct. Respondent, a 44-year-old native and
citizen of Canada, last entered the United States in May 1947, as a
returning resident. His original admission for permanent residence
occured on December 4, 1918, at Eastport, Idaho.
On January 15, 1953, an information was filed in the United States
District Court for the Western District of Washington, charging
respondent with three counts of attempted income tax evasion under 26
U.S.C. 145(b). On July 31, 1953, respondent pleaded guilty in the
United States District Court for the Eastern District of Washington to
counts two and three of the information, which charged him with
understating his income by approximately $12,000 for the fiscal year
ending October 31, 1947 (count two), and by approximately $45,000 for
the fiscal year ending October 31, 1948 (count three).
On July 31, 1953, respondent was sentenced to one year and three
months' imprisonment on each of the two counts with the sentences to run
concurrently; he was also fined $2,500 on each of the two counts. On
September 12, 1953, respondent's sentence was modified and reduced to
one year and one day on each of counts two and three, with the fines
remaining the same. On November 6, 1953, the court vacated and reduced
the sentences, imposing 11 months on each of counts two and three to be
served concurrently, with the amount reduced by the amount of time
already served in McNeil Island Prison, beginning August 17, 1953.
On the basis of the deportation charge, there are only two issues in
the instant case. First of all, the question of whether a violation of
26 U.S.C. 145(b) is a crime involving moral turpitude is controlled by
Matter of W , E-137668, 5, I. & N. Dec. 759 B.I.A., 1954; 22 Law Week
2613). In that case, the Board held that while it has been judicially
determined that "evade' does not mean intent to defraud, the word
"willfully' connotes a purposeful intent, because it serves to
differentiate between conscious or deliberate acts and accidental or
unintentional infractions.
The remaining question is whether a conviction for two offenses of
income tax evasion arise out of a single scheme of criminal misconduct,
as the words are used in section 241(a)(4) of the Immigration and
Nationality Act of 1952. /1/ With regard to the words "single scheme of
criminal misconduct,' the legislative history of the 1952 act is silent
as to which specific persons the phrase was intended to include.
This exact problem has occurred in several recent cases under section
241(a)(4) of the act of 1952. If an alien commits three distinct acts
of robbery on separate persons at different times and also attempts to
commit a similar offense on a fourth person, these crimes do not arise
out of a single scheme of criminal misconduct, as the words are used in
section 241(a)(4) (Matter of A , 532/271, 5 I. & N. Dec. 470).
Furthermore, an alien convicted on two separate occasions for
obtaining money under false pretenses from two different groups of
persons is deportable under section 241(a)(4) when he commits a complete
distinct crime, is convinced for it, then repeats the offense, and is
again convicted. The Board determined that those crimes were not part
of a single scheme of criminal misconduct and stated:
The fact that one (offense) may follow the other closely, even
immediately, in point of time is of no moment. Equally immaterial
is the fact that they may be similar in character, or that each
distinct and separate crime is a part of an over-all plan of
criminal misconduct (Matter of D , E-077114, 5, I. & N. Dec. 728
(B.I.A., April 7, 1954)).
In addition, when an alien was convicted on two counts of forgery and
uttering checks contrary to 18 U.S.C. 495 (each count dealing with a
different check on a distinct occasion), the Board held that when an
alien accomplishes a specific criminal objective through a particular
act, he is convicted thereof, and these events are repeated, the alien
is deportable even though he had envisioned an overall plan of crime,
including these and other offenses. The crimes for which the alien was
convicted were not considered as arising out of a single scheme of
criminal misconduct (Matter of Z , A-7241069, Interim Decision No. 614
(B.I.A., June 4, 1954)). /2/
Turning to the facts in the present case, we note that respondent was
convicted on two counts of income tax evasion, with each count relating
to a single year. Counsel feels that the use of one indictment divided
into several counts may have some significance in the present
discussion. Criminal precedents in United States law make it clear that
charges combined in one indictment or information under separate counts
constitute distinct crimes. Coupling in a single indictment or
information is only a matter of convenience. /3/ Therefore, because
this view has a firm basis in American criminal law, it cannot be
dismissed lightly as a mere artificial or technical approach to the
question, as counsel suggests.
However, it is well established that the import of the crime can only
be obtained from the statute involved and the record of conviction
(United States ex rel. Zaffarano v. Corsi, 63 F.(2d) 757 (C.C.A. 2,
1933); United States ex rel. Meyer v. Day, 54 F.(2d) 336 (C.C.A. 2,
1931)).
Because the wording of 26 U.S.C. 145(b) /4/ is of little assistance,
we are limited to the record in the present case, consisting of the
information, plea, and sentence. But, the facts as reflected in the
information (dated January 15, 1953) make no mention of any continuing
scheme of tax evasion. The facts in the instant information are limited
to the method by which respondent willfully attempted to evade income
taxes (in the words of the statute) as disclosed by a false return filed
on a given date.
Since the combining of individual income tax violations in separate
counts of a single information is purely a procedural assist for the
courts and the parties, a separate and independent act of income tax
evasion in each given year was properly alleged as a separate offense in
distinct counts, which in the instant case were appropriately grouped in
one information.
In reality, each time respondent failed to record a financial
transaction on his books and pocketed the money without leaving a trace
in his accounts, he laid the foundation for a separate offense against
the United States. The fact that a series of these acts within a year
were lumped together is not accidental, for the statute particularized
the offense as of the date of the filing of the false return on the due
day at the end of respondent's fiscal year for tax purposes. The fact
still remains that respondent was involved in a series of illegal acts
and as a result was guilty of criminal misconduct for which he served
time in the federal penitentiary.
Practically speaking, respondent's actions were neither continuing
offenses /5/ nor a continuing scheme of evasion, for respondent was
under no compulsion to act as he did and was free to cease his
purposeful acts of attempted tax evasion at any time.
It is noted that counsel has attempted to explain respondent's acts
of income tax evasion in the following way: Respondent, as an
International Harvester Company representative, was reportedly directed
by the company to apportion his steadily increasing profits from
franchises in Colfax and LaCross, Washington, by reserving a portion of
each year's business profits for improvements, such as a new building in
one of the towns. However, respondent allegedly did not feel that
business improvements were warranted in such rural area. To avoid this
supposed company order, respondent began his practice of suppressing
sales by failing to turn over sales memoranda to his bookkeeper and
exchanging the checks received in payment for currency, which he then
deposited in personal bank accounts or used to acquire property for his
own use. However, respondent's intentions or motives for his criminal
activity are of no consequence here, in view of the reality of his
conviction (Tillinghast v. Edmead, 31 F.(2d) 81 (C.C.A. 1, 1929);
United States ex rel. Meyer v. Day, 54 F.(2d) 336 (C.C.A. 2, 1931); Cf.
United States ex rel. Zaffarano v. Corsi, 63 F.(2d) 757 (C.C.A. 2,
1933)).
Simply because an alien commits a crime and later repeats this
offense the conclusion does not follow that the offenses were part of a
single scheme, even though the crimes were similar. If each criminal
act was a complete and distinct offense for which the alien was
convicted, repetition of the particular crime would generally not
constitute a single scheme. Robbery involving separate persons at
different times, false pretenses involving distinct offenses, forgery
and uttering of different checks at different times, after conviction,
have been held as not arising out of a single scheme of criminal
misconduct (Matter of A , Matter of D , Matter of Z , supra).
On the other hand, we feel that a single scheme of criminal
misconduct is present, if in the preformance of one unified act of
criminal misconduct several criminal offenses (for example, breaking and
entering followed by larceny or an attempt to escape after an assault)
are committed.
In addition, as we pointed out in the Z case, the repetition of a
particular criminal act plus conviction for it is not considered as a
single scheme, even though the alien had an over-all plan of crime in
the back of his mind. Similarly, in the present case, the existence of
a long-range plan to evade income taxes does not change the definite
fact that the crime was committed when a return, required by statute,
was filed. Hence, a second offense was committed when the second return
was filed and the latter crime was completely separate and distinct from
the former.
Therefore, since the coupling of charges in various counts is purely
a procedural device and does not constitute a substantial determination
that the crimes are interdependent, we must conclude that the offenses
in the instant case do not involve a "single scheme of criminal
misconduct.' The charge under section 241(a)(4) is sustained.
It is noted in passing that respondent is not without recourse to
avert deportation, for he is free to apply for a pardon. If such a
petition for Executive clemency were granted, the ground of deportation
would be nullified under section 241(b)(1). Counsel's failure to make a
timely application to the United States District Court, Eastern District
of Washington, for a recommendation against deportation, forecloses this
form of relief under section 241(b)(2) (Matter of M G , E-069541, 5, I.
& N. Dec. 531 (B.I.A., November 18, 1953)).
For these reasons, the motion is denied.
Order: It is hereby ordered that the motion be denied.
(1) Section 241. (a) Any alien in the United States (including an
alien crewman) shall, upon the order of the Attorney General, be
deported who --
(4) * * * 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.
(2) See also, United States ex rel. Barile v. Murff, 116 F.Supp. 163
(D.C. Md., 1953).
(3) "The word "count' is used when in one finding by the grand jury
the essential parts of two or more separate indictments for crimes
apparently distinct are combined, the allegations for each being termed
a "count' and the whole an "indictment' * * *. The object is to charge
the defendant with the distinct offenses, under the idea that the court
may, as often as it will, allow them to be tried together, thus averting
for both parties the burden of two trials * * *. On the face of the
indictment, every separate count should charge the defendant as if he
had committed a distinct offense, because it is on the principle of
joinder of offenses that the joinder of counts is permissible' (Boren v.
State, 23 Tex.App. 28, 4 S.W. 463 (1887)).
(4) 26 U.S.C. 145(b) provides as follows: Failure to collect and pay
over tax, or attempt to defeat or evade tax. Any person required under
this chapter to collect, account for, and pay over any tax imposed by
this chapter, who willfully fails to collect or truthfully account for
and pay over such tax, and any person who willfully attempts in any
manner to evade or defeat any tax imposed by this chapter or the payment
thereof, shall, in addition to other penalties provided by law, be
guilty of a felony and, upon conviction thereof, be fined not more than
$10,000, or imprisoned for not more than five years, or both, together
with the costs of prosecution (53 Stat .62, as amended October 21,
1942).
(5) United States v. Johnson, 123 F.(2d) 111 (C.C.A. 7, 1941), rev.
on other grounds 319 U.S. 503 (1943). This case does not support
counsel's single scheme theory, because the continuing offense issue
arose primarily because Johnson and co-defendants were also charged with
conspiracy under 18 U.S.C. 88. In addition the court held that the date
of commission of an offense under 26 U.S.C. 145(b) is the date required
for filing of a return. The court held that each count for violation of
26 U.S.C. 145(b) in each of four years was a separate offense for each
year, citing United States v. Sullivan, 98 F.(2d) 79 (C.C.A. 2, 1938)
(See also, Norwitt v. United States, 195 F.(2d) 127 (C.A. 9, 1952)).
Expatriation -- Section 349(a)(10) of Immigration and Nationality Act -- Prospective only.
Expatriation under paragraphs (1) through (10) of section 349(a) of the Immigration and Nationality Act can only result through acts committed on or after December 24, 1952, as these provisions are prospective only. With respect to section 349(a)(10) of the act, the phrase "any compulsory service laws' relates only to compulsory service laws which were in effect on December 24, 1952, and to similar laws which may be enacted thereafter.
EXCLUDED:
Act of 1952 -- No immigrant visa or other entry document.
Discussion: This case is before this Board pursuant to the Acting
Assistant Commissioner's order of September 15, 1954, certifying the
matter to us under the provisions of 8 C.F.R. 6.1(c).
The applicant is a 37-year-old male, native of the United States, who
applied for admission to this country on January 22, 1953. After
hearings before a special inquiry officer, he was excluded on March 24,
1953, as an alien who was not in possession of an immigrant visa or
other valid entry document. No appeal was taken.
The special inquiry officer made findings that the applicant was born
in Del Rio, Texas, on January 1, 1917; that he resided continuously in
Mexico "from the time he was a small child to date,' that is, until
March 24, 1953; and that he remained out of the United States during a
period of national emergency for the purpose of avoiding or evading
training and service in the armed forces of the United States. He
concluded that the applicant became expatriated under section 349(a)(10)
of the Immigration and Nationality Act.
The pertinent portion of section 349(a) of the Immigration and
Nationality Act is as follows:
Sec. 349. (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 --
(10) departing from or remaining outside of the jurisdiction of
the United States in time of war or during a period declared by
the President to be a period of national emergency for the purpose
of evading or avoiding training and service in the military, air,
or naval forces of the United States. For the purposes of this
paragraph failure to comply with any provision of any compulsory
service laws of the United States shall raise the presumption that
the departure from or absence from the United States was for the
purpose of evading or avoiding training and service in the
military, air, or naval forces of the United States.
It is obvious, from the special inquiry officer's discussion of the
case, that he was relying on the presumption contained in the last
sentence quoted above, and he indicated that he was of the opinion that
the sentence mentioned made the whole paragraph retroactive. We do not
find anything in the language of that sentence which would warrant such
a conclusion. The statement in section 349(a), to the effect that a
person shall lose his nationality by doing the acts mentioned in
paragraphs (1) through (10), is preceded by the phrase "from and after
the effective date of this Act.' Hence, it is clear that expatriation
under paragraphs (1) through (10) can only occur on or after December
24, 1952, and that these provisions are prospective only.
With respect to the question of whether the presumption in the last
sentence of section 349(a)(10) is prospective or retrospective, the
future tense appearing in "shall raise' weights against giving
retrospective effect to the presumption. In addition, that sentence
provides, in part, "For the purposes of this paragraph * * *,' and it
follows that the presumption contained in that sentence applies only to
cases within paragraph (10) of section 349(a). We have concluded above
that expatriation under that paragraph can only occur on or after
December 24, 1952. Similarly, the presumption mentioned is limited to a
"failure to comply' occurring on or after December 24, 1952. In
reaching this conclusion, we have not overlooked the statement "any
compulsory service laws,' appearing in section 349(a)(10). We hold that
this relates only to compulsory service laws which were in effect on
December 24, 1952, and to similar laws which may be enacted hereafter.
On the effective date of the Immigration and Nationality Act, the
applicant was over 35 years of age and he was not liable for training
and service in the armed forces of the United States. In view of our
conclusions stated above, it is clear that he did not become expatriated
under section 349(a)(10) of the Immigration and Nationality Act. The
remaining question in this case is whether expatriation occurred under
section 401(j) of the Nationality Act of 1940, as amended.
The applicant was not specifically questioned concerning his reasons
for remaining outside this country. He testified that his parents took
him to Mexico when he was a very small child and that it was not until
recently that he learned that he had been born in the United States.
The record does not show that the applicant was aware of the obligation
of United States citizens residing abroad to register for military
service, and there is nothing to indicate that he desired to return to
this country and refrained from doing so because he wished to avoid
military service. We think that his case presents a stronger factual
situation in his favor than in Matter of G M , A-6605457, 2, I. & N.
Dec. 861 (May 15, 1947), and Matter of M , A-6690283, 2, I. & N. Dec.
910 (August 8, 1947), in which we held that expatriation had not
occurred under section 401(j) of the Nationality Act of 1940. After
careful review of the entire record, we find nothing therein which would
support the special inquiry officer's finding of fact that the
applicant's purpose in remaining outside the United States was to evade
or avoid training and service in the armed forces of this country.
Accordingly, the evidence does not establish that the respondent became
expatriated and he must be considered a citizen of the United States.
In view of the foregoing, we will authorize his admission as a citizen.
Order: It is ordered that the special inquiry officer's order of
March 24, 1953, be and the same is hereby withdrawn.
It is further ordered that the applicant be admitted as a citizen of
the United States.
Evidence -- Conviction under California statute as narcotic drug addict not sufficient in and of itself to support a deportation charge under section 241(a)(11) of the Immigration and Nationality Act -- Definition of "addict.'
(1) Congress has defined "addict' as a person who habitually uses any habit-forming narcotic drugs so as to endanger the public morals, health, safety, or welfare, or who is or has been so far addicted to the use of such habit-forming narcotic drugs as to have lost the power of self-control with reference to his addiction (42 U.S.C. 201(k)).
(2) Conviction under section 11721 of the Health and Safety Code of California as a "narcotic drug addict' is not in and of itself sufficient evidence to support a deportation charge under section 241( a)(11) of the Immigration and Nationality Act where no specification of guilt to any particular charge in the complaint was made. Under the California statute a narcotic drug addict may be either "a person who unlawfully uses, or is addicted to the unlawful use of, narcotics' and the burden of establishing that conviction was for a particular charge is upon the Service. Where positive evidence is introduced by the respondent that he is not a narcotic drug addict and the Government's case is based solely on the conviction, the Service has failed to sustain its burden of proof.
CHARGE:
Warrant: Act of 1952 -- Narcotic drug addict after entry.
Discussion: Appeal is taken from the order of the special inquiry
officer requiring respondent's deportation on the ground stated above.
The issue presented is whether the record establishes that the
respondent is a narcotic drug addict.
Respondent is a 42-year-old married male, a native and citizen of
China, who has made his home in the United States since 1924, when he
was admitted as the alien son of a native-born citizen of the United
States. The special inquiry officer found that the respondent's
conviction on November 18, 1953, on a plea of guilty, for violation of
section 11721 of the Health and Safety Code of the State of California
was sufficient to support the charge in the warrant of arrest. Counsel
contends that the conviction should not be held binding upon the
respondent since it resulted from his plea of guilty to a charge he did
not fully understand because he spoke no English and no interpreter was
made available to him although he had requested that he be provided with
one. It is further argued that on the evidence of record, the
Government has not sustained its burden of establishing that respondent
is an addict. In support of this contention, counsel relies upon
respondent's testimony that he has used narcotics to relieve a painful
eye condition, but that he is not an addict, and the corroboration
furnished this testimony by the certification of the United States
Public Health Service after respondent had been examined. We believe
that the Service has failed to sustain the burden of proof upon it and
will terminate the proceedings.
Section 241(a)(11) of the Immigration and Nationality Act, insofar as
is pertinent to this discussion, provides for the deportation of any
alien who
is, or hereafter at any time after entry has been, a narcotic
drug addict, * * *.
The term "narcotic drug addict' is not defined in the Immigration and
Nationality Act. However, in connection with legislation concerning the
care and treatment of "narcotic addicts,' Congress has furnished the
following definition:
The term "addict' means any person who habitually uses any
habit-forming narcotic drugs so as to endanger the public morals,
health, safety, or welfare, or who is or has been so far addicted
to the use of such habit-forming narcotic drugs as to have lost
the power of self-control with reference to his addiction (42 U.
S.C.A. 201(k)).
The definition appears to be in accord with the judicial decisions
which recognize that one may be a user of drugs without being an addict
(Matter of B , A-6815221, 3, I. & N. Dec. 620, 621).
Respondent's conviction on November 18, 1953, was under section 11721
of the Health and Safety Code of the State of California which after
September 9, 1953, read as follows:
Section 11721. Punishment of addicts. No person shall
unlawfully use or be addicted to the unlawful use of narcotics.
Any person convicted of violating any provision of this section is
guilty of a misdemeanor and shall be placed on probation for not
more than five years and the court shall sentence the person
convicted to not less than 90 days nor more than one year in the
county jail as a condition of probation.
The term "addict' is defined in the Health and Safety Code of the
State of California as follows:
Section 11009. "Addict.' "Addict,' as used in this division,
means a person who unlawfully uses, or is addicted to the unlawful
use of, narcotics.
It may thus be seen that the California definition of the word
"addict' does not necessarily mean a person who habitually uses narcotic
drugs, but includes a person who unlawfully used the drug on one
occasion (People v. Hopkins, 226 P.(2d) 74, D.C. of Appeals, First
District, California). We shall use the term "addict' in the sense
defined by Congress.
To establish respondent's deportability on the charge in the warrant
of arrest, it is not necessary to show that he has been convicted of
being an addict. The law requires only that the alien at some time
after entry shall have been an addict. The conviction in the state
court in California is of course not res judicata of the issue before us
for the reason, if none other, that the parties to that action are
neither the same as the parties in this action nor are they privies to
the original parties. Thus, even if the subject matter or facts in both
actions were substantially similar, res judicata would not apply (Strong
v. Aetna Casulty and Surety Co., 52 F.Supp. 787 (1943) N.D. Texas;
Deitrick v. Fenderson, 27 F.Supp. 469 (1939); Soap Corp. of America v.
Reynolds, 178 F.(2d) 503 (C.A. 5, 1949)). The conviction thus becomes
merely one of the factors to be considered in determining whether
respondent has been an addict. We find the conviction to be of
ambiguous import on this issue. The conviction does not establish
whether the respondent was convicted of being an unlawful user of
narcotics or whether he was convicted of being a person addicted to the
unlawful use of narcotics. The complaint in the respondent's case
charged him with committing a violation of section 11721 of the Health
and Safety Code in that he
was then and there willfully and unlawfully a narcotic
addict, in that he was a person who unlawfully used and was
addicted to the unlawful use of narcotics, to wit: Opium and
derivatives thereof.
The statement in the complaint terming the respondent to be a
narcotic addict, if not superfluous, must be considered in the light of
the California statutory definition of the term "addict.' By that
definition, this can mean that respondent was either an unlawful user of
the drug, or a person addicted to the unlawful use of the drug. The
complaint goes on to charge the respondent with being an unlawful user
and a person addicted to the unlawful use of narcotics. He is in effect
charged with the commission of an act and the assumption of a status in
violation of law. This is in the language of the statute except that
the two charges are in the conjunctive while the statute sets them forth
in the disjunctive. It does not appear that the two charges set forth
in the statute (unlawful use and addiction to unlawful use) set up two
separate and distinct offenses in the sense that they are as distinct
and independent of each other as if they had been enacted in separate
sections so that an individual who either committed the proscribed act
or possessed the proscribed status could be convicted and punished by
more than one sentence. The charges appear of the type that, although
either may constitute a distinct offense when committed by the same
person at the same time, charge but one crime when combined and can be
punished only as one offense (Bealmear v. So. California Edison Co., 139
P.(2d) 20, S. Ct. of California; People v. Craig, 110 P.(2d) 403, S.
Ct. of California); such charges may be made in the conjunctive
although set forth in the disjunctive in the statute and proof of the
commission of either act would suffice to obtain a conviction (People v.
McCennegen, 234 P. 91, S. Ct. of California; Bealmear v. So. California
Edison Co. (supra); People v. Kinsley, 5 P.(2d) 938, D.C. of Appeals,
Fourth District, California; 27 Am.Jur. 104). The fact that the
statute requires the court to sentence the person convicted for
violating any provision of the section to not less than 90 days in jail
and the fact that respondent, who was charged with both committing the
unlawful act and possessing the unlawful status, was sentenced to only
90 days in jail, is further indication that the statute defines one
offense which may be committed by either one of the specified charges.
It thus may be seen that the conviction could have been obtained in
the instant case by proof of the commission of any one of the two
charges set forth in the count. A general plea of guilty was entered.
Since no specification of guilt to any particular charge was made, we
cannot determine that the respondent was not convicted solely on the
ground that he was a person who unlawfully used narcotics on one
occasion (see Stromberg v. California, 283 U.S. 357, 367-370 (1931), 75
L.Ed. 1117; Terminiello v. Chicago, 337 U.S. 1, 5 (1949), 93 L.Ed.
1131). The burden of establishing that conviction for a particular
charge was upon the Service. Because the burden is upon the Service, we
are not justified in drawing an inference most unfavorable to the alien.
In fact, we should draw the inference most favorable to him. We must
assume that he was convicted of being a person who had unlawfully used
narcotics.
We come now to the evidence presented by the respondent to establish
that he is not an addict. The respondent testified that he has used
narcotics on occasions to alleviate a painful eye condition.
Certification issued by the United States Public Health Service on March
10, 1954, after respondent was given a physical examination and his
history taken, reveals that the respondent was found afflicted with
blindness, unilateral in his right eye, that it was of a permanent
nature; that there is ample evidence that the subject has had pain in
his right eye and may still experience pain and irritation in that area;
that the eye should probably be removed surgically; that there is
evidence of past intravenous injections on both forearms but not as
extensive as would be expected in a confirmed drug addict who had
indulged his habit for 18 years; that there was no history of
withdrawal symptoms in the past 14 weeks during which opium and
equipment for administration of opium had not been available to the
respondent; and that in the opinion of the United States Public Health
Service physician, the respondent was not a narcotic drug addict.
The positive evidence introduced by the respondent and the ambiguous
nature of the evidence relied upon by the Service causes us to conclude
that the Service has failed to establish by substantial, reasonable, and
probative evidence that the respondent has been a narcotic drug addict.
The proceedings will be terminated.
Order: It is ordered that the proceedings be and the same are hereby
terminated.
Denaturalization -- Jurisdiction of Board to disregard judgment void on its face.
The Board of Immigration Appeals may disregard the decree of a United States District Court cancelling naturalization if the judgment is void on its face. Hence, where such a decree was entered on October 28, 1935, only 28 days after the filing of the complaint, and was based upon the defendant's waiver of notice or summons and consent to entry of such judgment, the judgment is void on its face because the court did not acquire jurisdiction in the absence of the notice or summons to the defendant required by section 15 of the Act of June 29, 1906.
EXCLUDABLE:
Act of 1952 -- Section 212(a)(20) -- No immigrant visa and passport.
Discussion: Appellant, 24 years old, married, male, was born on
November 21, 1929, in Italy. He has been a legal resident of Canada
since July 1, 1952, when he was admitted to Canada at Halifax, Nova
Scotia, as a landed immigrant. He seeks admission to the United States
for permanent residence as a citizen of the United States. He has in
his possession an Italian passport which expired on August 10, 1952.
Appellant claims United States citizenship through his father, M C ,
who was naturalized a United States citizen at Chicago, Illinois, on
January 31, 1928. The special inquiry officer found that appellant's
father, M C , was denaturalized by a United States District Court at
Chicago, Illinois, on October 28, 1935; that cancellation of
citizenship for fraud results in loss of citizenship ab initio; and the
appellant, therefore, never inherited United States citizenship from his
father. The special inquiry officer excluded appellant as an alien, and
appellant appeals from that decision.
Appellant testified that his father first came to the United States
about 1904, that he made several trips to Italy and was married in that
country in 1908. He became the father of four children, born in Italy,
the youngest of which is appellant, born in 1929. The special inquiry
officer states that after he was naturalized in Chicago in 1928, M
returned to Italy in the early part of 1929, and remained there until
September 1929. He then returned to the United States bringing with him
his oldest son, N , who is now a resident of San Francisco, California.
M remained here until sometime in 1933, when he returned to Italy where
he resided until February 1951 when he reentered the United States with
a quota immigrant visa. He stayed less than a year and returned to
Italy in November, 1951.
The record shows that on October 1, 1935, a petition to cancel
certificate of citizenship was filed in the United States District Court
for the Northern District of Illinois by the United States Attorney,
reciting that M C was naturalized a citizen of the United States and
that his last place of residence in the United States was Chicago,
Illinois, within the jurisdiction of the court. The petition continues
to recite that the United States Consul stationed at Naples, Italy, has
furnished the Department of Justice with an authenticated certificate
dated April 23, 1935, stating that the defendant, M C , on or about
(blank) of November 1928 established permanent residence in Italy, which
was within five years after January 31, 1928, the date on which he
became a United States citizen. The petition states that M C has
continued to reside in Italy, that he obtained his certificate of
naturalization by perpetrating a fraud upon the court, in that within
five years after the issuance of the certificate of naturalization he
went to Italy and took up permanent residence therein, thereby
demonstrating that at the time he become a citizen he did not intend to
remain permanently in the United States.
Attached to the petition is an affidavit by the American Consul at
Naples, Italy, before whom M C signed a consent and waiver in connection
with the cancellation proceedings reciting that M had abandoned his
United States citizenship and established permanent residence in Italy.
The consent and waiver states that M C within five years after he
received a decree of citizenship, and on or about the (blank) day of
(blank) 1931 left the United States and became a permanent resident of
(blank). The consent and waiver recites further that the signer
consents to entry of a decree by the appropriate district court of the
United States setting aside and cancelling the decree of naturalization
and declaring it null and void. The copy of the form in this record is
alleged to have been signed by M C . It is undated, and contains no
other information.
Appellant testified that after his father returned to Italy in 1933
he went to the United States consul, who advised him that if he did not
return to the United States within the time limit he would lose his
United States citizenship. He did not return to the United States, and
he surrendered his certificate of citizenship to the American Consul in
Naples, Italy, in 1935. Appellant stated that his father told him he
had lost his United States citizenship by failure to return to and take
up residence in the United States.
The complaint against M C was filed on October 1, 1935, in the United
States District Court for the appropriate district. The final decree
purporting to cancel the citizenship of the appellant's father, was
entered on October 28, 1935, less than 30 days after the date of filing
of the petition. The court stated that the defendant, "having filed
herein his waiver of notice or summons and consent to the entry of an
order cancelling his certificate of citizenship' it would be adjudged
and decreed that the petition and allegations would be taken as
confessed, and the order granting citizenship to M C was then vacated.
The special inquiry officer held that M C lost his United States
citizenship ab initio under section 15 of the Act of June 29, 1906, and
it is as if that citizenship had never been granted him at all. Counsel
alleges, however, that the cancellation of citizenship in this case was
void, because the United States District Court in Chicago, Illinois,
never acquired jurisdiction over the father of appellant in the
denaturalization proceedings. It is alleged by counsel that the
requirements of the statute with regard to notice and service were not
observed by the Government, and therefore the court, having never
achieved jurisdiction over M 's person, was without power to revoke his
citizenship.
Counsel cited Stenerman v. Brownell, 204 F.(2d) 336 (C.A. 9, 1953)
(cited in appellant's brief as Stenerman v. McGranery) in support of his
contention. The special inquiry officer rejected this authority, saying
that it is the view of the Immigration and Naturalization Service that
such an isolated holding is not binding upon it, and the special inquiry
officer preferred to follow the ruling as to loss of citizenship under
section 15 of the act of 1906 as set forth in a decision of this Board,
Matter of P , 1415-K-1181, 5, I. & N. Dec. 218 (May 7, 1953). The
special inquiry officer also cites Luria v. United States, 231 U.S. 9,
34 S.Ct. 10, 58 L.Ed. 101; Battaglino v. Marshall, 172 F.(2d) 979 (C.A.
2, 1949); Rosenberg v. United States, 60 F.(2d) 475 (C.C.A. 3, 1932).
In none of the cases cited by the special inquiry officer was there any
issue raised as to the jurisdiction of the court over the person of the
naturalized alien.
There is no question but that a court may hold that a decree of
another court of naturalization or denaturalization was ineffective when
the defect in the decree appears on the face of the judgment (Yamashita
v. Hinkle, 260 U.S. 199 (1922), 67 L.Ed. 209 (1922), and cases there
cited). However, the first question here is whether or not an
administrative agency such as this Board can declare a decree of a
United States District Court denaturalizing a naturalized citizen to be
a nullity. We find no case involving the exact issue, but a similar
question arose in United States ex rel. Lapides v. Watkins, 165 F.(2d)
1017 (C.C.A. 2, 1948), wherein the appellant contended that a board of
special inquiry could make no determination as to his citizenship, that
any question respecting his citizenship could only be resolved by
independent judicial proceedings. The appellant had been granted United
States citizenship in 1928 and remained in the United States until 1934
when he took his family to live in Palestine. After 13 years of
continous absence he returned to the United States in 1947. He presented
an uncancelled certificate of citizenship and an uncancelled
"certificate of identity' which had been issued to him by the United
States Consulate General in Palestine. He was excluded by a board of
special inquiry as an alien without the necessary documents, and the
exclusion was upheld by this Board. One of the principal contentions of
appellant before the Circuit Court of Appeals was that as a citizen he
was unlawfully detained, because neither the Commissioner of Immigration
and Naturalization nor a board of special inquiry had the power to
exclude a citizen, or the jurisdiction to determine whether or not he
was a citizen.
The court said that although a board of special inquiry has no
jurisdiction to exclude him if he were a citizen, and though his
certificate of citizenship could perhaps be canceled only in judicial
proceedings conforming to the statute, the facts upon which his status
depended were, in the first instance, for the administrative
determination of the Board of special inquiry. The court said:
It (the board of special inquiry) was empowered to determine
these facts like any others pertinent to a preliminary decision on
the question of its jurisdiction (citing cases). If the
appellant's status under the law was that of an alien, the Board
has the same jurisdiction to act in respect to him that it would
have had as to any other alien.
In a footnote the court said:
Of course the loss of the appellant's American citizenship has
been judicially established in the present proceedings in the
district court. But this does not meet the appellant's argument
which we understand to be that he is entitled to have the initial
determination as to his status by a judicial tribunal not to any
extent bound by the findings of the immigration authorities.
The court held that the relator had lost his citizenship, and that
the certificate of identity issued by the consul had no effect whatever
to extend his time abroad without loss of citizenship, but the
proceedings left his certificate of citizenship unaffected as such.
Important to the present problem, was the re-affirmation by the court
that the administrative agent may, and indeed must, as part of its
duties re-adjudicate an applicant's citizenship status, and that no
judicial proceedings were necessary to bring about his change of status.
The Supreme Court in Yamashita v. Hinkle, (supra), upheld the action
of an administrative officer in refusing to recognize a decree of
naturalization erroneously issued to a person ineligible for
citizenship.
On the strength of the cited authorities we conclude that we may, if
necessary, reject a decree of a United States District Court granting or
cancelling citizenship, if the judgment of the court is void on its
face.
What is the defect on the face of the decree of denaturalization here
involved alleged to be so apparent as to render the judgment void on its
face? The complaint against appellant's father was filed on October 1,
1935. The decree of the court purporting to cancel the citizenship of
that person was dated October 28, 1935, less than 30 days later.
Counsel contends that this fact alone is sufficient to render the
judgment void for failure to comply with the terms of the applicable
statutes.
Section 15 of the act of 1906 requires that in a proceeding to cancel
a certificate of citizenship on the ground of fraud or on the ground
that it was illegally procured, the holder of the certificate of
citizenship:
* * * 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 of his application for citizenship, * * *.
The statute clearly provided that in the event the naturalized alien
is absent from the United States, notice shall be given him in the
manner provided by the laws of the state. The laws in effect in
Illinois in 1935 provided for publication of notice once a week for
three successive weeks, the first publication to be at least 30 days
prior to the return day on which defendants are required to appear
(Chapter 107, Jones Illinois Statutes Annotated, section 295). Chapter
104, Jones Illinois Statutes Annotated, section 015 provides:
No default or proceeding shall be taken against any defendant
not served with summons, or a copy of the complaint and not
appearing unless the first publication be at least thirty days
prior to the time when such default or other proceeding is sought
to be taken.
M C , the naturalized alien, did not receive the 60 days personal
notice provided by the act of 1906, or the thirty days notice to an
absentee defendant provided by the Illinois Statute. Without proper
notice to the holder of the certificate the court never secured
jurisdiction over that person, and its judgment is void. In Klapprott
v. United States, 335 U.S. 601 (1949), 69 S.Ct. 384, 93 L.Ed. 266, the
court clearly considered that the provisions for notice and other
precedural requirements are extremely important. It may be assumed from
the court's decision that such provisions must be carefully observed and
fulfilled.
In Bindczyck v. Finucane, 342 U.S. 76, 72 S.Ct. 130, 96 L.Ed. 100
(1951), the court also held the Government to careful compliance with
the technicalities of the procedure provided by Congress for revoking
citizenship on the ground of fraud. In that case also the court found
that the exclusive denaturalization procedure provided by law had not
been observed, and therefore the decree setting aside a naturalization
order was ineffective. The court expressly referred to the fact
(footnote 12) that Congress had "absorbed' into the law the "existing
variations in State practice' with regard to notice and service upon
absentees. The Supreme Court specifically upheld United States ex rel.
Volpe v. Jordan, 161 F.(2d) 390 (C.C.A. 7, 1947), wherein it was said
that only Congress could prescribe the conditions and terms upon which a
certificate of naturalization might be revoked, that it had done so, and
that no rule in conflict with the prescribed procedure would be of any
effect.
These cases are consistent with the rule that substituted service by
publication is a statutory invention in derogation of the common law and
that there must, therefore, be strict compliance with the statute
authorizing such service (United States v. Sotis, 131 F.(2d) 783 (C.C.
A. 7, 1942); Galpin v. Page, 85 U.S. 350, 18 S.Ct. 350, 21 L.Ed. 959;
United States v. Kiriaze, 172 F.(2d) 1000 (C.A. 5, 1949); and United
States ex rel. Stabler v. Watkins, 168 F.(2d) 883 (C.C.A. 2, 1948)).
It is necessarily the position of the Immigration Service that the
form of consent and waiver by which M C purported to consent to the
entry of a decree cancelling his United States citizenship, gave the
court jurisdiction to enter a decree against him, even though Federal
and state statutory requirements as to notice and procedure had not been
met. The reported cases indicate that this is not a sound position.
Contrary to the special inquiry officer, we do feel ourselves bound
by the decision of Judge Stephens in the case of Stenerman v. Brownell
(supra). In that case the court states:
It is obvious that judgment canceling Stenerman's citizenship
cannot stand if the proceedings on their face show that no
jurisdiction of his person was acquired. The question is then
presented: Did the Court have the power to receive the document
signed by Stenerman as conclusive of the statements in it and
proceed in Stenerman's absence and without notice to him to make
the denaturalization order?
There is much in the books on the subject of judgment by
confession and it will be noted in but a brief study of the
subject that such judgments are generally related to the
acknowledgment of debt, and are limited to permissive statutes
strictly construed. There is no federal statute on the subject.
Of course, a party in court may confess a judgment or consent that
a judgment may be taken against him, but Stenerman never was in
court in the denaturalization proceedings.
Jurisdiction over the person against whom the judgment is to
run is never assumed by or through oral testimony or a statement
in writing of one who is not known by the court in a legal manner
to have the right to act for the person. There is no law
authorizing a court to accept a statement even though signed and
sworn to before an immigration officer, as conclusive proof of its
contents. No matter how real and genuine the statement may appear
to be, it may be entirely false or totally void because given
under pressure and hence not a free act. If a court could accept
such a statement as conclusive of its contents, no person would be
free from the possibility of discovering, at any time, that a
self-enforcing judgment had been pronounced against him without
notice and without his day in court. * * *'
Apparently, the procedure followed by the Government in the Stenerman
case was identical with that pursued in the present proceeding. The
only distinction is that Stenerman was in jail at the time the consent
to cancellation was obtained from him, and he had never left the United
States. The court therefore concluded in that case that his
naturalization had been in full force and effect up to the day he
appeared before the court, and that he had never lost his citizenship.
In United States ex rel. Volpe v. Jordan (supra), the Circuit Court
said:
Surely petitioner did not and could not have waived the
statutory provision which Congress had enacted providing the
specific and definite means by which his citizenship could be
revoked. Neither can any statements made or acts performed by
petitioner be utilized to legalize the order of April 3, 1920.
That order if void when entered is void today.
It is our conclusion that the consent and waiver signed by M C did
not confer jurisdiction on the court to vacate his decree of
citizenship, when the court's jurisdiction was defective for lack of
proper notice.
Appellant, as son of M C , may attack the decree of the United States
District Court cancelling his father's citizenship, even at this late
date, because "a void judgment is no judgment,' In re Gee Hop, 71 Fed.
274 (N.D. Calif., 1895), and "A judgment void upon its face may be
attacked at any time and in any proceeding, and the same may be
disregarded,' In re Yamashita, 30 Wash. 234 (S. Ct. Wash., 1902),
sustained in Yamashita v. Hinkle, (supra). In Sanders v. Clark, 76 F.
Supp. 489 (E.D. Pa., 1948), 85 F.Supp. 253 (E.D. Pa., 1949), the court
held that a son was not bound by a consent decree cancelling his
father's citizenship for presumptive fraud, and the son was held to be a
United States citizen. See also Anderson v. Anderson, 292 Ill. App.
421, 428, 11 N.E.(2d) 216, 219; Freeman on Judgments, (2d ed.) par.
98, and 31 Am. Juris., par. 612.
The special inquiry officer found that there is no evidence that
appellant has committed any act which would result in the loss to him of
his United States citizenship acquired at birth.
It is our conclusion that the United States District Court for the
Northern District of Illinois, Eastern Division, did not acquire
jurisdiction of M C in accordance with the provisions of the applicable
statutes, and that, therefore, the decree of that court vacating the
order of naturalization of January 31, 1928, entered on October 28,
1935, was void. It is our further conclusion that this Board has the
jurisdiction to make this finding, and that appellant may and has
successfully attacked that judgment, and that appellant is now and has
been since birth a United States citizen, and must be admitted to this
country as such.
Order: It is ordered that the appellant be admitted to the United
States as a United States citizen. /*/
(*) Footnote: Since the above decision was signed, it is supported
and enhanced by the opinion in Laranjo v. Brownell, 126 F.Supp. 370 (N.
D. Calif., 1954), wherein the court granted the plaintiff's motion for
summary judgment that she be declared a United States national under
sec. 360, 1952 act, 8 U.S.C. 1503. The decision was based in part upon
Stenerman v. Brownell, (supra), and found a decree of denaturalization
in 1931 by the United States District Court in Massachusetts to be a
nullity, for inadequate notice to plaintiff's father. The court found
further that the decree naturalizing plaintiff's father in 1886 can be
collaterally attacked today only by an affirmative plea of fraud going
to the jurisdiction of the naturalization court and not by any defense
of fraud based on the presumptions of the 1906 and 1907 acts.
Fine -- Section 273 of Immigration of Nationality Act -- Liability incurred even though alien never intended to enter United States -- Inspection, section 235(a) of the act -- Required of all aliens, including those who do not intend to leave ship.
(1) A transportation line is liable for fine under section 273 of the Immigration and Nationality Act for unlawfully bringing to the United States an alien not in possession of a visa, even though such alien is in transit from one foreign country to another and does not intend to leave the vessel on which he arrived while such vessel is in a United States port.
(2) Under section 235(a) of the Immigration and Nationality Act, all aliens, including those in transit who do not intend to leave the ship while stopping at ports in the United States, are required to present themselves for inspection by an immigration officer.
IN RE: M/S. Amagisan Maru which vessel arrived at Seattle,
Washington, on May 1, 1953, from Japan, via Vancouver, British Columbia,
Canada.
Discussion: This matter is before us by reason of an appeal from the
decision of the District Director of Immigration and Naturalization,
Seattle, Washington, bearing date July 30, 1953, wherein fine in the
amount of $1,000 was imposed upon Messrs. Burchard & Fisken, Inc.,
Exchange Building, Seattle, Washington, agents for the vessel as
aforesaid which vessel arrived at Seattle, Washington, from the foreign
ports or places indicated on May 1, 1953. Passenger involved N S .
The specific violation complained of is bringing to the United States
from the place outside thereof the alien N S who was not in possession
of an unexpired visa, such visa being required by the act or regulations
issued thereunder.
Section 273 of the Immigration and Nationality Act (8 U.S.C. 1323)
provides:
(a) It shall be unlawful for any person, including any
transportation company, or the owner, master, commanding officer,
agent, charterer, or consignee of any vessel * * * to bring to the
United States from any place outside thereof * * * any alien who
does not have an unexpired visa, if a visa was required under this
Act or regulations issued thereunder.
(b) If it appears to the satisfaction of the Attorney General
that any alien has been so brought, such person, or transportation
company, or the master, commanding officer, agent, owner,
charterer, or consignee of any such vessel * * * shall pay to the
collector of customs of the customs district in which the port of
arrival is located the sum of $1,000 for each alien so brought * *
*.
The evidence of record shows that N S is a citizen of Japan. He
applied for transportation from Japan to Venezuela and approximately a
week before the ship sailed he was informed that the ship would be
calling at a United States port but that he figured he did not have
sufficient time in which to secure a visa from the American consular
service.
It is contended by counsel that in the particular circumstances here
involved section 273 was not violated for two reasons: (a) Within the
true intent and the clear spirit of its prohibition, said vessel and
those responsible therefor did not bring to the United States the said
alien; (b) By the act as a whole, a valid unexpired United States visa
was not required of or for said alien because he was not an immigrant,
because he had never applied for entry into this country, because he
never intended to enter here and because he never did so in any legal
sense.
Section 238(d) of the Immigration and Nationality Act (8 U.S.C.
1228) provides:
The Attorney General shall have power to enter into contracts
including bonding agreements with transportation lines to
guarantee the passage through the United States in immediate and
continuous transit of aliens destined to foreign countries.
Notwithstanding any other provision of this Act, such aliens may
not have their classification changed under section 248.
8 C.F.R. 212.3(f), in effect at the time of the alien's arrival and
departure on May 1, 1953, provides in part, as follows:
Nonimmigrants and required to present passports, visas, or
border-crossing identification cards.
The provisions of section 212(a)(26) of the Immigration and
Nationality Act and of this chapter relating to the requirement of
passports, visas and border-crossing identification cards for
nonimmigrants, have been waived by the Secretary of State and the
Attorney General, acting jointly in pursuance of the authority
contained in section 212(d)(4) of the Immigration and Nationality
Act, in the cases of aliens * * * who are otherwise qualified for
admission as nonimmigrants under the applicable provisions of the
immigration laws and who fall within any of the following
categories:
(f) An alien not within the purview of paragraph (e) of this
subsection who is being transported in immediate and continuous
transit through the United States without stopover from one
foreign place to another in accordance with the terms of a
contract, including a bonding agreement, entered into by a
transportation line and the Attorney General under the provisions
of section 238(d) of the Immigration and Nationality Act, to
insure such immediate and continuous transit through, and
departure from, the United States en route to a specifically
designated foreign country; Provided, That such alien is in
possession of a travel document which is valid for his entry into
a foreign country for a period of not less than 60 days after date
of immediate and continuous transit through the United States:
And provided further, That at all times such alien is not aboard
an aircraft which is in flight through the United States he shall
be in the custody of an officer of the United States * * *.
The undisputed facts are that this alien passenger engaged direct
transportation from Japan to Venezuela on the vessel as aforesaid which
was then not scheduled to call at any United States port, until cargo
was later booked for discharge at Seattle, Washington, where the vessel
arrived and departed on the first of May 1953, with the alien aboard,
the alien never having any purpose of coming to or entering the United
States, and only having left the vessel temporarily in obedience to
official direction of the Immigration and Naturalization Service.
Emphasis supplied.
Section 235(a) of the Immigration and Nationality Act (8 U.S.C.
1225) provides in part as follows:
The inspection, other than the physical and mental examination,
of aliens (including alien crewmen) seeking admission or
readmission to, or the privilege of passing through the United
States shall be conducted by immigration officers, except as
otherwise provided in regard to special inquiry officers. 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 * * *.
Counsel, in behalf of the agents and the owners, asserts that "under
the particular circumstances involved no visa was required of the
alien.'
The attorney further avers that while the act and the regulations
contain provisions requiring a visa of aliens in specified special
categories, they do not contain provisions positively and affirmatively
requiring either a visa of all aliens in general or of aliens in the
particular class presently involved, to wit: An alien passenger
engaging transportation on a continuous, through voyage from one foreign
port to another foreign port aboard a vessel then not scheduled to call
at a United States port, such alien never intending to come to nor enter
in the United States and hence never applying for admission to do so.
8 C.F.R. 212.1 specifically provides:
Except as otherwise provided in the Immigration and Nationality
Act and this chapter, an alien (including an alien crewman) who
applies for admission to the United States as a nonimmigrant shall
present a valid unexpired nonimmigrant visa issued to him under
the nonimmigrant classification in which he seeks admission, and
an unexpired passport valid for at least the period set forth in
section 212(a)(26) of the Immigration and Nationality Act: * * *.
It will thus be seen that section 235(a) of the Immigration and
Nationality Act, (supra), requires all aliens arriving at ports of the
United States to be examined by an immigration officer and the
inspection of all aliens seeking the privilege of passing through the
United States in transit to other foreign territory shall be conducted
by an immigration officer.
Therefore, the inspection and examination of all aliens is thus
required not only to determine whether or not an alien is admissible to
the United States but also to ascertain, among other things, whether or
not such arriving alien, including alien crewmen, are excludable as
being afflicted with disease, or of coming from a place where diseases
are prevalent or epidemic; whether or not there may be a violation of
the law.
Obviously, the requisite inspection and examination could not be
conducted unless the alien, nonimmigrant, is presented for the necessary
inspection and examination.
It should be noted that the statute applies to all aliens who have
arrived in the United States and makes no distinction whether arrival is
by land, sea, or by air.
It is also necessary to point out that the owners of the vessel as
aforesaid, M S KK., are not signatories to any agreement or bonding
arrangement as mentioned in the provisions of 8 C.F.R. 212.3(f),
(supra).
This Board has reviewed the facts in this case most carefully and it
is our conclusion that a reading of the provisions of the statute and
the regulations, as hereinabove set forth, adequately establish a
violation of section 273 of the Immigration and Nationality Act (8 U.S.
C. 1323) in that the passenger brought was found to be a nonimmigrant
not in possession of the requisite visa. Moreover, the carrier knew at
the time the vessel left the foreign port that the ship was coming to
the United States as herein set forth. In these circumstances, the
appeal must necessarily be dismissed.
Order: It is ordered that the appeal from the decision of the
District Director of Immigration and Naturalization, Seattle,
Washington, bearing date July 30, 1953, be and the same is hereby
dismissed.
Hearing -- Not unfair merely because respondent was suffering from mental illness and not represented by a court appointed representative -- Crime involving moral turpitude -- Section 202, Title 18, U.S.C.
(1) Requirements of fair hearing have not been violated in deportation proceedings involving an alien of unsound mind, where notice of hearing has been served on the alien and his wife, arrangements were made to protect alien's interests by having a doctor in attendance at the hearing, and alien was represented by legal counsel who was given the privilege of introducing evidence and cross-examining witnesses.
(2) Conviction for violation of section 202, Title 18, U.S.C., which makes it a crime for a government employee to accept or solicit a bribe, is an offense involving moral turpitude.
CHARGES:
Warrant: Act of 1924 -- Remained longer -- Visitor.
Lodged: Section 241(a)(4), Act of 1952 -- Convicted of crime
involving moral turpitude committed within five years after entry and
confined for year or more -- Violation of section 202, Title 18, U.S.C.
(Government employee did unlawfully, willfully and knowingly ask, accept
and receive a bribe) -- Four counts.
Discussion: This is an appeal from the order of the special inquiry
officer finding respondent deportable on each of the counts set forth
above.
Respondent is a 46-year-old married male, a native of Rumania and
last a citizen or subject of Israel. He last entered the United States
as a visitor on March 4, 1955, and was granted extension of temporary
stay to November 21, 1954. He has remained in the United States without
authorization since that date. He is, therefore, clearly deportable on
the charge in the warrant of arrest. On June 12, 1952, he was sentenced
to imprisonment for a period of 18 months on each of four counts for
violation of section 202, Title 18, U.S.C., which makes it a crime for a
Government employee to accept or solicit a bribe. The acts in question
were committed about December 1951 and January 1952.
Counsel contends that the hearing given the respondent was unfair
because the respondent was suffering from a mental illness at the time
of the hearing and the respondent was not represented by a court
appointed representative. We do not find the contentions persuasive.
The appeal will be dismissed.
Warrant of arrest was issued on December 11, 1951, and served upon
the respondent on June 16, 1952. Hearing was held on November 18, 1952.
At the time, respondent was granted a continuance for two weeks to
secure counsel. Hearing was resumed on September 24, 1953. At this
hearing, attorney W appeared in his behalf. Counsel stated that he had
not had sufficient time to talk to the alien; he further stated the
alien was in a psychotic state and that the Service should not proceed
while the respondent was in such a state. The special inquiry officer
granted an indefinite continuance to enable a notice to be sent to the
wife of the respondent or someone in charge of looking after his affairs
and to enable the respondent to recover from his psychotic state, a
matter which it was represented to the special inquiry officer would
occur within about 30 days.
On March 22, 1954, hearing was resumed. Previous to the hearing,
notification was addressed to the respondent and his wife. At the
hearing respondent was represented by counsel K , who had entered the
case upon the request of the State Bar Association which sought aid for
the respondent as an indigent person. A continuance of two weeks was
requested to enable to new counsel to properly prepare for the case and
to receive information which he believed would be forthcoming within
that period. Continuance was denied. Counsel was informed that if he
obtained any pertinent information, he could present it after the
hearing was closed. Counsel objected to the continuance of the
proceedings on the ground that there was a question as to the sanity of
respondent; that the Federal Rules of Civil Procedure required the
capacity to sue or be sued to be determined by the law of domicile and
provided that the court shall appoint a guardian ad litem; and that
since the preliminary steps to protect the welfare of the respondent in
his then mental condition had not been complied with, to proceed further
would deprive respondent of due process of law. The objection was
overruled.
Dr. Charles Smith, Chief of Psychiatric Service at the Medical Center
for Federal Prisoners at Springfield, Missouri, was present representing
the warden or chief medical officer of the institution and appeared to
protect the alien's interests. The doctor testified that the respondent
had come to the institution with an administrative certification that he
was of unsound mind and that subsequent examinations by the medical
staff caused them to concur in that conclusion. The doctor testified
that respondent's mental condition rendered him incompetent to appear as
a witness and from having a full and complete understanding of his oath.
He was diagnosed as afflicted with paranoid state, chronic severe. The
doctor testified that he was first certified as a psychotic on July 16,
1953, and that the respondent's condition was of the type that tended to
become progressively worse.
With the consent of counsel, the respondent was permitted to attend
the hearing. Respondent was questioned by both the special inquiry
officer and counsel. On the whole, he appears to have answered
intelligently and rationally.
We believe that proceedings were in substantial compliance with
pertinent laws and regulations relating to the deportation process. At
the time of the service of the warrant, it had not been determined that
respondent was a mental case. Service was properly made upon him (8 C.
F.R. 242.14). Moreover, notice of hearing was given both to the
respondent and to his wife. Respondent secured counsel. Arrangements
were made by the warden to protect the respondent's interests by having
a doctor in attendance at the hearing. Counsel was given the privilege
of introducing evidence and cross-examining witnesses. At this late
date, no defense to the charges is offered. The proceedings were
proper.
We pass on to the question as to whether moral turpitude is involved
in respondent's conviction under 18 U.S.C.A. 202. The special inquiry
officer has set forth the facts concerning the criminal violation in
great detail. Section 202 of Title 18, U.S.C.A., provides as follows:
Whoever, being an officer or employee of, or person acting for
or on behalf of the United States, in any official capacity, under
or by virtue of the authority of any department or agency thereof,
or an officer or person acting for or on behalf of either House of
Congress, or of any committee of either House, or of both Houses
thereof, asks, accepts, or receives any money, or any check,
order, contract, promise, undertaking, obligation, gratuity, or
security for the payment of money, or for the delivery or
conveyance of anything of value, with intent to have his decision
or action on any question, matter, cause, or proceeding which may
at any time be pending, or which may by law be brought before him
in his official capacity, or in his place of trust or profit,
influenced thereby, shall be fined not more than three times the
amount of such money or value of such thing or imprisoned not more
than three years, or both; and shall forfeit his office or place
and be disqualified from holding any office of honor, trust, or
profit under the United States.
This section shall not apply to violations of section 213 of
this title.
The purpose of this section is to punish officers of the United
States for accepting bribes (United States v. Canella, 63 F.Supp. 377,
Calif., aff'd 157 F.Supp. 470). The gravamen of the offense is the
acceptance of a bribe by an official with the intent to have his
decision or action in a matter pending before him in his official
capacity influenced thereby (United States v. Henry, 52 F.Supp. 161,
Nevada).
We believe the offense of bribery is a base and vile act which
involves moral turpitude. The offense in question moreover is one
whereby the Government has been cheated out of services the community is
rightfully entitled to and it involves the obstruction of lawful
governmental functions by deceit, graft, trickery and dishonest means.
Such an offense clearly involves moral turpitude (See Matter of S ,
56152/593, 2, I. & N. Dec. 225). Since the record establishes the
respondent's conviction of crimes involving moral turpitude, we need not
consider the turpitudinous nature of his convictions for violation of
two counts of section 462(a) of Title 50 App. U.S.C.A. The appeal will
be dismissed.
Order: It is ordered that the appeal be and the same is hereby
dismissed.
Pardon -- Section 241(b) of Immigration and Nationality Act.
A pardon issued by a governor which specifies that its purpose is "to prevent deportation' is effective under section 241(b) of the Immigration and Nationality Act. The language "to prevent deportation' is merely descriptive and does not set up a condition which, if violated, causes the pardon to become null and void.
CHARGE:
Warrant: Act of 1952 -- Section 241(a)(4) -- Convicted twice after
entry -- Murder, second degree, and petit larceny.
Discussion: The special inquiry officer's decision ordering
deportation was appealed to this Board and oral argument was heard on
May 5, 1954. During the pendency of that appeal and after oral
argument, the respondent's representative filed a motion to reopen the
case and to have it reconsidered in the light of a pardon granted the
respondent, and that the proceedings thereafter be terminated. In view
of the fact that the case was then properly before us on appeal, we
shall so consider it rather than in motion proceedings.
The record relates to a 63-year-old male alien who was born in the
City of Fiume and believes he is now a citizen of Yugoslavia because the
place of his birth is now part of Yugoslavia. He alleged that his only
entry into the United States took place in August or September 1906 at
the port of New York, when he arrived as a member of the crew of the SS.
Carpathia. That entry could not be verified.
Respondent was indicted on November 30, 1909, for the crime of murder
in the first degree committed on October 18, 1909, and on November 30,
1909, he pleaded not guilty. On January 26, 1910, in the Supreme Court
at Albany, New York, on a plea of guilty to murder in the second degree
he was sentenced to a term of from 20 years to life for murder in the
second degree. He was also sentenced by the Court of Special Sessions
of the City of New York on December 6, 1938, to the workhouse for 60
days on the charge of petit larceny.
On July 26, 1954, the Governor of the State of New York granted a
pardon to the respondent for the crime of murder in the second degree
which was previously mentioned. This pardon contains, inter alia, the
following:
Therefore, know ye, that we have pardoned, remised and
released, and by these presents do pardon, remise and release, the
said L F of and from the offense whereof, in our said Court, he
stands convicted as aforesaid, and of and from all Sentences,
judgments and Executions thereon, to prevent deportation.
Emphasis supplied.
Section 241(b) of the Immigration and Nationality Act, so far as is
pertinent here, provides that the provisions of section 241(a)(4)
respecting the deportation of aliens convicted of crime shall not apply
to an alien who has been granted a full and unconditional pardon by the
Governor of any of the several States. The issue in the instant case,
therefore, is whether the pardon obtained by the alien is full and
unconditional. As we said in Matter of C , E-076976, 5, I. & N. Dec.
630, 633, B.I.A., January 19, 1954,
Since a pardon is an act of grace and mercy, inherent in the
pardoning power is the right to make the pardon absolute or
conditional, United States v. Wilson, 32 U.S. (7 Pet.) 150 (1833).
A conditional pardon is one to which a condition is annexed, the
performance of which is necessary to the validity of the pardon,
Fehl v. Martin, 155 Oregon 455, 64 P.(2d) 631 (1937). Conditional
pardons may be those involving conditions precedent or conditions
subsequent. If there is a condition precedent, such condition
must be performed before the pardon can take effect. If the
pardon contains a condition subsequent, such condition, if
violated, causes the pardon to become null and void (State ex rel.
Gordon v. Zangerle, 136 Ohio State 371, 26 N.E. (2) 190 (1940);
The Attorney General's Survey of Release Procedures, vol. 3, p.
205 (1939)). On the revocation of a pardon for a breach of one of
its conditions , the legal status of the person pardoned must be
regarded as being the same as it was before the pardon was granted
(State ex rel. Gordon v. Zangerle (supra)).
Applying the foregoing tests to the instant case we find at once that
there is no condition precedent attached to the pardon. Nothing must be
done before the pardon can take effect. It has taken effect.
Similarly, it appears that the words, "to prevent deportation' used in
the pardon are merely descriptive words, employed to show why the pardon
was granted. These words, being descriptive, do not set up a condition
which, if violated, causes the pardon to become null and void. They
merely describe that which motivated the exercise of executive clemency.
They do not create a pardon with a condition subsequent. We,
therefore, conclude that the pardon is full and unconditional. The
conviction of murder in the second degree is therefore not to be
considered in connection with deportability. That being so, the
respondent is not deportable on the present record because he has only
one conviction remaining against him and that is for a crime committed
more than five years after his entry.
Order: It is ordered that the proceedings be, and the same are
hereby terminated.
Narcotic violation -- Attempt to commit the crime of feloniously possessing a narcotic drug with intent to sell -- Section 241(a)(11) of Immigration and Nationality Act.
An alien's conviction for attempt to commit the crime of feloniously possessing a narcotic drug with intent to sell renders him deportable under section 241(a)(11) of the Immigration and Nationality Act.
CHARGES:
Warrant: Section 241(a)(11), Act of 1952 -- Narcotic violation -- Feloniously possessing a narcotic drug with intent to sell.
Lodged: Section 241(a)(11), Act of 1952 -- Narcotic violation --
Attempting to commit the crime of feloniously possessing a narcotic drug
with intent to sell.
Discussion: This is an appeal from the order of the special inquiry
officer requiring respondent's deportation on the lodged charge set
forth above.
Respondent is a 40-year-old single male, a native of Russia who
claims to be stateless. His only entry to the United States occurred in
1926 when he was lawfully admitted for permanent residence. The issue
before us is whether the respondent's conviction on April 10, 1953, on a
plea of guilty of the "crime of an attempt to commit the crime of
feloniously possessing a narcotic drug with intent to sell' renders the
respondent subject to deportation under that portion of section
241(a)(11) of the Immigration and Nationality Act which provides for the
deportation of an alien convicted of the violation of a law governing
the sale or possession for the purpose of selling of narcotics. The
matter has been thoroughly covered by the special inquiry officer in his
order. Therefore, we will not go into the matter in detail. We find
that the conviction of the crime of an attempt to commit the crime of
feloniously possessing a narcotic drug with intent to sell subjects the
alien convicted to deportation under section 241(a)(11), Immigration and
Nationality Act.
Counsel contends that if respondent were convicted merely of
possession, it would not be a ground of deportation; that in the
instant case respondent did not even have possession of the narcotics,
but merely attempted to gain possession; and that since he has done
less than an individual who actually had possession, he too should not
be deported. We do not find the contention persuasive. The possession
involved herein is not mere possession. It is possession with an intent
to dispose of the drug unlawfully. This is sufficient to bring an alien
within the provisions of section 241(a)(11), Immigration and Nationality
Act. It is clear to us that one who is in effect convicted of the crime
of attempting to sell narcotics is as deportable as one convicted of the
crime of selling narcotics. The appeal will be dismissed.
Order: It is ordered that the appeal be and the same is hereby
dismissed.
Deportability -- Section 241(a)(3) of Immigration and Nationality Act -- Confinement to institution must commence after December 23, 1952 -- Section 241(a)(8) of the act -- Demand for payment must be made within 5 years after entry.
(1) In order to sustain a deportation charge under section 241(a)(3) of the Immigration and Nationality Act, it is necessary to show that the alien became institutionalized at public expense after December 23, 1952. Therefore, an alien whose confinement in such institution within five years after entry began August 19, 1952, and still continues, is not deportable under section 241(a)(3).
(2) Deportability under section 241(a)(8) of the Immigration and Nationality Act, as a person who has become a public charge within five years after entry from causes not affirmatively shown to have arisen after entry, is not established unless demand for payment is made within the five-year period after entry or unless it is shown that demand was unnecessary because there was no one against whom payment could be enforced.
CHARGES:
Warrant: Act of 1952 -- Institutionalized at public expense because of mental disease, defect or deficiency within five years after entry.
Act of 1952 -- Public charge within five years after entry.
Discussion: This case is before the Board on an appeal from a
decision of a special inquiry office ordering the respondent's
deportation.
Because of the respondent's mental condition and confinement to
Camarillo State Hospital, warrant of arrest dated February 26, 1954, was
served on that hospital. At the hearing on March 19, 1954, a
psychiatrist on the staff of that institution testified that the
respondent was incompetent to testify in these proceedings. Testimony
in the hearing was given by the psychiatrist and by the respondent's
son, A L .
The record reflects that the respondent is a 76-year-old widowed
alien, native and citizen of Greece, who last entered the United States
at New York, New York, on August 28, 1947, at which time she was
admitted for permanent residence upon the presentation of a first
preference quota immigration visa.
The respondent was admitted to the Camarillo State Hospital on August
19, 1952, pursuant to a commitment of the Superior Court of Los Angeles
County on August 18, 1952. Her condition was diagnosed as "senile
psychosis, simple deterioration,' with recovery not expected. The
"Certification as to Alien Becoming a Public Charge' dated February 1,
1954, states that "Patient is without funds, therefore no demand has
been made on her. The only legally responsible relative listed is the
patient's son, A C L * * *. A demand was made on March 6, 1953, and to
date no payment has been received.' It is also certified therein that
that hospital is supported by the State of California.
Actually the respondent has two daughters as well as the
aforementioned son living in the United States but the son testified
that these daughters do not wish to help the respondent. Respondent's
son's income at the time of the hearing was only $31 per week and he has
been unable, although allegedly willing, to pay toward his mother's
hospitalization. The son testified that he would not be able to make
any payments unless he gets a good job and earns enough money to pay.
Subsequent to the hearing the attorney filed a brief dated April 19,
1954, in which he stated that the son was under the impression that the
$1,800 owed the hospital had to be paid in a lump sum. When he learned
he could pay monthly he started to make payments and paid $65 up to
April 7, 1954, as is evidenced by receipts attached to the brief. Also
attached was a letter dated April 7, 1954, from the Department of Mental
Hygiene, State of California, setting forth that pursuant to law, the
monthly charges effective January 1, 1954, would be $15 per month.
The first charge in the warrant of arrest is that the respondent is
deportable under section 241(a)(3) of the Immigration and Nationality
Act in that, within five years after entry, she became institutionalized
at public expense because of mental disease, defect or deficiency which
has not been shown not to have existed prior to her admission to the
United States. It is true that the respondent was confined to the
institution nine days less than five years following her admission to
the United States. However, she was confined to this institution prior
to the effective date of the Immigration and Nationality Act. That act
became effective on December 24, 1952. The confinement in the
institution preceded that date and continued until the present time.
The sole issue, therefore, revolves about the meaning of the words
"hereafter, within five years after entry, becomes institutionalized,'
particularly in view of the language of section 241(d) of the act which
provides:
Except as otherwise specifically provided in this section, the
provisions of this section shall be applicable to all aliens
belonging to any of the classes enumerated in subsection (a),
notwithstanding (1) that any such alien entered the United States
prior to the date of enactment of this Act, or (2) that the facts,
by reason of which any such alien belongs to any of the classes
enumerated in subsection (a) occurred prior to the date of
enactment of this Act.
From the foregoing it is manifest that the use of the word
"hereafter' in section 241(a)(3) places some limitation upon what would
otherwise be the effect of section 241(d). Furthermore, such
limitations are clearly contemplated in certain cases as is evidenced by
the opening clause of section 241(d) which recognizes exceptions to its
otherwise all-inclusive language. We, therefore, turn to an analysis of
the statutory language and to give effect to all pertinent words
therein.
First, the word "hereafter' does not require that the respondent's
entry into the United States follow the effective date of the act
because the words "within five years after entry' are set out as an
independent clause preceded and followed by commas and because such
interpretation is not indicated when it is considered that section 241(
d) has for its general purpose the directive that the date of entry
shall be immaterial.
Second, the words "becomes institutionalized' are not synonymous with
language indicating a state of being in an institution such as would be
the case if the statute provided "hereafter, within five years after
entry, is institutionalized.' It is the becoming rather than the being
institutionalized which appears to be the controlling factor.
Therefore, it would follow that the beginning of the confinement in the
institution is the thing which must be "hereafter,' that is, after
December 23, 1952. Any other meaning should not be ascribed in the
absence of a clear intent so to do by Congress.
Support for the conclusion being reached in this case is found in
House Report No. 1365, 82d Congress, 2d session, dealing with this act.
Therein it is stated that the principal classes of deportable aliens, as
contained in the act, are as follows: "(3) Aliens who, after enactment
of the bill and within 5 years of entry, become institutionalized * * *'
(p. 60). See also Senate Report No. 1137, 82d Congress, 2d session, p.
21.
From the foregoing it is manifest that the first charge in the
warrant of arrest is not sustained.
The remaining charge is that laid under section 241(a)(8) of the
Immigration and Nationality Act which provides for the deportation of an
alien who, in the opinion of the Attorney General, has within five years
after entry become a public charge from causes not affirmatively shown
to have arisen after entry. This charge is in all material respects
similar to a charge contained in section 19(a) of the Act of February 5,
1917, as amended, which provided for the deportation of an alien who
within five years after entry becomes a public charge from causes not
affirmatively shown to have arisen subsequent to landing. In connection
with that charge under the 1917 act this Board has held that an alien
cannot be said to become a public charge until a demand for payment has
been made (Matter of C , A-3907777, 2, I. & N. Dec. 538). In Matter of
M , 56073/871, 2, I. & N. Dec. 694, it was held that, among other
things, there must be affirmative evidence that no one who might be
responsible, is willing or able to pay the charges for the respondent
thereby eliminating the necessity for a demand for payment. See also
Matter of B , 56033/544, 3, I. & N. Dec. 323.
In the instant case, the certification by the Assistant
Superintendent of the Camarillo State Hospital states that the only
responsible relative listed was the patient's son and that a demand was
made upon him on March 6, 1953, for payment but that no payment has been
made. While it is true that that certification states that the only
responsible relative listed was the patient's son whereas in fact that
patient had two daughters in the United States, it would seem to be an
immaterial circumstance. Apparently, there was liability for payment
and the demand therefor was made March 6, 1953, which was subsequent to
a period ending five years after the respondent's entry into the United
States. There is no showing that any demand for payment was made within
the five-year period nor that arrangements for payment could not have
been made, had a demand been made, within that period. As is evidenced
by documents attached to the attorney's brief, charges have now been
fixed commencing January 1, 1954, at $15 per month payable in advance
and as of April 7, 1954, $65 have been paid. We do not believe that the
Government has established that a demand within the five-year period was
unnecessary because such demand is unnecessary only where it can be
shown that there is no one against whom payment can be enforced. This
was not shown by the record in the instant case. The second charge must
therefore fall.
Order: It is ordered that the proceedings be terminated.
Sentence, suspended -- Deportability under section 241(a)(4) of Immigration and Nationality Act.
An alien whose sentence to confinement for a period of not less than two nor more than five years, as a result of conviction of a crime involving moral turpitude within five years after entry, was wholly suspended is deportable under section 241(a)(4) of the Immigration and Nationality Act. Actual confinement is not necessary to sustain a charge under this section.
CHARGE:
Warrant: Act of 1952 -- Convicted of crime within five years after
entry and sentenced to a year or more: Burglary, 2d degree.
Discussion: The alien in this case was found subject to deportation
on the above charge by the special inquiry officer, though the
sentencing court had wholly suspended the sentence which was for
confinement for a period of not less than two, nor more than five, years
in the Indiana Reformatory. No appeal was taken. The case has been
certified to the Board under 8 C.F.R. 6.1(c) because of this
interpretation of section 241(a)(4) of the Immigration and Nationality
Act by the special inquiry officer.
The brief submitted by the alien's attorney contests this
interpretation because there was no actual confinement following
sentence. The previous law /1/ on this charge referred to one
"sentenced to imprisonment' and the prefinal drafts /2/ of what became
the present law /3/ referred to one "sentenced to confinement,' but the
final draft which became law refers to one either sentenced to
confinement or confined therefor.' (Italics supplied.)
The language is clear, the meaning plain, and the pertinent added
words must be deemed purposive to effect a change from former law. So
that the phrase "sentenced to confinement' would unmistakably and beyond
peradventure be considered as one of two alternatives set forth, the
word "either' precedes and the word "or' follows this phrase. The
conclusion is inescapable that a change in former law was to be affected
by the present statute. The two phrases "either sentenced to
confinement or confined therefor' cannot be construed as if they read
"sentenced to confinement and confined therefor.'
A study of the legislative history of the present law does not
disclose that Congress did not mean what it said or inadvertently said
what it did not mean. Congressional desire to modify this class of
deportable aliens "to facilitate the deportation of undesirable criminal
aliens' was expressed in Senate Report No. 1137 noted in footnote 2.
/4/ It is evident that the Congress was moving in the direction of
contraction of the sufferance of the criminal aliens in our midst from
that which the law and courts allowed beforetime.
Under present law, this alien is deportable as charged,
notwithstanding his sentence was wholly suspended by the sentencing
court. The decision of the special inquiry officer will be affirmed.
Order: It is ordered that the decision of the special inquiry
officer dated March 29, 1954, be affirmed.
(1) Section 19, Immigration Act of 1917.
(2) Senate Report No. 1137, Calendar No. 1072, to accompany S. 2550,
82d Cong., 2d sess., January 1952, p. 21. House Report No. 1365, to
accompany H.R. 5678, 82d Cong., 2d sess., February 1952, p. 60.
(3) House Report No. 2096, to accompany H.R. 5678, 82d Cong., 2d
sess. June 9, 1952, is a conference report and sets forth this provision
of law identically as it appears in section 241(a)(4), (supra), (see p.
45). This report contains a statement of the managers on the part of
the House (p. 127, et seq.). This provision is not mentioned in this
statement nor is there a comment on the change from the previous draft
versions.
(4) Aliens who, within 5 years of entry, are convicted of a crime
involving moral turpitude and sentenced to confinement for a year or
more; or who, at any time after entry, are convicted of two such
crimes, whether or not sentenced; or who, at any time after entry, are
convicted of any criminal offense and the Attorney General finds such
aliens to be undesirable residents. This class of deportable aliens has
been modified to facilitate the deportation of undesirable criminal
aliens. Thus, an alien who at any time after entry is convicted of two
crimes involving moral turpitude is deportable, regardless of whether
confined therefor, whereas under existing law the alien must have been
sentenced to a term of a year or more because of such convictions. The
Attorney General is also authorized to deport any alien convicted of any
other criminal offense if he determines that he alien is an undesirable
resident. This provision follows generally the policy expressed by the
Congress in the act of May 10, 1920 (41 Stat. 593-594; 8 U.S.C. 157),
wherein it is provided that aliens convicted of certain offenses shall
be deported if the Attorney General finds them to be undesirable
residents of the United States. Likewise, the provision is broad enough
to include aliens convicted of certain offenses presently made a ground
for deportation under section 19(b) of the act of February 5, 1917, but
which are not set forth specifically under the bill. The committee
feels that this ground for deportation is justified, since there are
many offenses which, while not involving moral turpitude, are of such a
character as to render an alien convicted of such offense undesirable as
a resident. There is no reason to believe that such discretion by the
chief law enforcement officer of this Government would be abused. The
Special Committee to Investigate Organized Crime in Interstate Commerce
in its third interim report recommended the adoption of similar
provisions (S. Rept. No. 307, 82d Cong., p. 15).
Ineligible to citizenship -- Section 315(a) of Immigration and Nationality Act.
A native and citizen of Germany who stated that he objected to service in the military or naval forces of the United States on two Selective Service questionnaires, Form DSS 304, on the basis of which he was found unacceptable by the armed forces, has not applied for and been granted relief from training and service within the meaning of section 315(a) of the Immigration and Nationality Act. The Selective Training and Service Act of 1940 contains no provision for application for exemption from training and service by alien enemies and a more affirmative step is required than merely giving an answer to one of the questions on a questionnaire relating to an alien's personal history, such as Form DSS 304. Therefore, such alien is not ineligible to citizenship within the provisions of section 315(a) of the act and is not ineligible for suspension of deportation under section 19(c) of the Immigration Act of 1917.
CHARGE:
Warrant: Act of 1924 -- Remained longer than regulations permitted.
Discussion: Hearing on the warant of arrest in the instant case was
first held in January 1941. In a decision of this Board, entered on
March 9, 1942, it was ordered that the respondent be deported. At a
reopened hearing in August 1946 the respondent applied for suspension of
deportation. On October 19, 1949, the hearing was again ordered
reopened. This case is before us now on appeal from an order of the
special inquiry officer dated October 14, 1953, denying suspension of
deportation but granting voluntary departure with the provision that if
the alien fails to so depart he is to be deported on the charge
contained in the warrant of arrest. Exception is taken to the denial of
greater discretionary relief.
The respondent is a 41-year-old married male, a native and citizen of
Germany. He last entered the United States at the port of Baltimore,
Maryland, on August 31, 1939, as a member of the crew of the Standard
Oil Tanker SS. Penelope and was admitted as a seaman. Under rules in
effect at the time of respondent's entry, seamen were admitted for a
period not to exceed 60 days. It is concluded that the respondent is
subject to deportation on the charge contained in the warrant of arrest.
The respondent testified that after his arrival in the United States,
the Standard Oil Co. agents told the members of the crew that they were
to be replaced by Americans because the company feared the outbreak of
war. The Standard Oil Company was unable to repatriate the respondent
to Germany due to the outbreak of World War II. He was taken into
custody by the United States Government and interned from April 1941
until July 1943 when he was released on parole from the Fort Lincoln
Internment Camp, Bismark, North Dakota.
The respondent registered at Baltimore, Maryland, on October 16,
1940, under the Selective Training and Service Act of 1940. On December
14, 1940, he completed a Selective Service questionnaire. According to
the communication to the Service dated March 9, 1945, from his local
draft board in Baltimore, Maryland, the respondent was classified IV-C
by reason of his refusal to serve in the land or naval forces of the
United States and he was found to be unacceptable for training and
service in the army by the Headquarters Third Corps Area, Baltimore,
Maryland, following his submission of Forms DSS 304 dated September 2,
1943, and February 21, 1944, wherein he refused to serve in the land or
naval forces of the United States. The record fails to show when he was
classified as IV-C. He had been classified as I-A on September 8, 1943.
In the Form DSS 304 submitted by him on September 2, 1943, the
respondent, in answer to question No. 41, stated: "I do object to
service in the land or naval forces of the United States because: 1. I
am only out on parole from nearby Fort Lincoln. 2. My deportation order
is still in effect. No objection otherwise.' In the February 21, 1944,
Form DSS 304 he stated: "I do object to service in the land or naval
forces of the United States.'
The respondent testified that in 1940, before the United States
entered the war, he went to his local draft board and said that he
desired to join the United States Armed Forces and was told "Well, we
don't take any aliens; especially we don't want any Germans.' He said
that he had always been anti-Nazi and anti-Communist and did not feel
that he should have been interned and for that reason indicated in the
Forms DSS 304 submitted by him in September 1943 and February 1944 that
he did object to service in the Armed Forces. Subsequently, however, he
did write a letter which was received by his local draft board on August
26, 1944. In this letter he stated: "As a professional seaman I desire
to enlist in the United States Navy or Merchant Marine.' He said that he
wrote the letter because he intended to get married and wanted to clear
his status and believed he could be used in the Merchant Marine or Navy
because he was a seaman.
According to counsel, the draft board apparently took no action in
respect to respondent's letter until June 1945 when it forwarded to the
respondent another Form DSS 304. The Selective Service Board's records
show that on June 22, 1945, the respondent did submit a Form DSS 304 in
which he stated that he did not object to service in the land or naval
forces of the United States. Subsequently, on September 17, 1945, the
respondent was reclassified IV-A (overage for military service).
Section 315(a) of the Immigration and Nationality Act provides as
follows:
Notwithstanding the provisions of section 405(b), any alien who
applies or has applied for exemption or discharge from training or
service in the Armed Forces or in the National Security Training
Corps of the United States on the ground that he is an alien, and
is or was relieved or discharged from such training or service on
such ground, shall be permanently ineligible to become a citizen
of the United States.
It is the position of the special inquiry officer that the
respondent's objection to service in the armed forces in the statement
contained under item 41 of the Forms DSS 304 and the finding of
unacceptability by the armed forces on that ground constituted an
application for relief from training and service on the ground of
alienage and the deferment of the respondent was a grant of relief from
training and service on the ground of alienage within the meaning and
intent of section 315 of the Immigration and Nationality Act. The
special inquiry officer, therefore, finds the respondent ineligible to
citizenship and thus ineligible for suspension of deportation under
section 19(c) of the Immigration Act of 1917 which contains a
requirement that an alien be not ineligible for naturalization.
The Selective Training and Service Act of 1940 contained a provision
for an "application' for exemption from training and service by a
citizen of a neutral nation but no form of application was provided for
alien enemies. The requirement of an "application' in the case of
citizens and subjects of neutral countries was stipulated in section 3(
a) of the Selective Training and Service Act of 1940 which provided that
such a person be relieved from service under the act if prior to his
induction "he has made application to be relieved from such liability in
the manner prescribed by and in accordance with rules and regulations
prescribed by the President but any person who makes such application
shall thereafter be debarred from becoming a citizen of the United
States * * *.'
In our opinion, the respondent's answers in the first two Forms DSS
304 that he objected to service did not constitute an application for
exemption from training or service. As was said by the court in
Petition of Zumsteg, 122 F.Supp. 670, 672 (S.D. N.Y., 1954):
The use of the words "application * * * in the manner
prescribed by and in accordance with rules and regulations
prescribed by the President' would appear to require that the
applicant take a more affirmative step than merely giving an
answer to one of the questions on a questionnaire relating to the
alien's personal history, such as Form DSS 304. This is
particularly so since neither the Act nor the Selective Service
regulations permitted an application to be made by an enemy alien,
and, so far as the Selective Service regulations were concerned,
an affirmative answer to question 41 of Form 304 would not
necessarily relieve the applicant from military service.
Since the respondent's answer to question 41 in Form DSS 304 did not
constitute an application for exemption, it has not been established
that he is ineligible to citizenship within the provisions of section
315 of the Immigration and Nationality Act. Thus, he is not ineligible
for suspension of deportation under section 19(c) of the Immigration Act
of 1917 and is also not ineligible for admission to the United States by
reason of his answer to question 41 in the Forms DSS 304.
The respondent married a native-born citizen of the United States on
September 16, 1944. They have no children. The respondent is employed
as a salesman for a frozen food firm and earns $85 a week. His wife is
unemployed and is completely dependent upon him for support. Family
assets amount to approximately $13,000.
Respondent, as the husband of a United States citizen, is eligible
for nonquota status and is thus in a position to obtain the ready
issuance of an immigrant visa. We do not feel that suspension of
deportation is warranted in the instant case. However, we will grant
the additional privilege of preexamination in conjunction with the
voluntary departure relief granted the respondent by the special inquiry
officer.
Order: It is ordered 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, in any event not less
than 90 days, and under such conditions as the officer in charge of the
district deems appropriate, conditioned upon consent of surety, if any.
It is further ordered that preexamination be and the same is hereby
authorized.
It is further ordered that if the alien does not depart from the
United States in accordance with the foregoing, the privilege of
voluntary departure shall be withdrawn without further notice or
proceedings, and the alien deported from the United States in the manner
provided by law on the charge stated in the warrant of arrest.
Marriage -- Between uncle and niece -- Void in Pennsylvania although valid in Italy where performed. Alien spouse not eligible for nonquota status under section 101(a)(27)(A) of Immigration and Nationality Act -- Child of such marriage eligible for nonquota status under section 101(a)(27)(A).
(1) Under the law of Pennsylvania, marriage between uncle and niece, regardless of where performed and consummated, is void and the parties thereto are liable to criminal prosecution for incest if they cohabit therein. Therefore, a visa petition filed by a United States citizen resident of that state, who intends to continue to reside therein, for the purpose of obtaining nonquota status for his wife under section 101(a)(27)(A) of the Immigration and Nationality Act, must be denied.
(2) The child of a marriage between uncle and niece valid in Italy
where the child resides is legitimate and is entitled to nonquota status
under section 101(a)(27)(A) of the Immigration and Nationality Act.
Although the father is a resident of Pennsylvania where such marriages
are void, under the law of that state children of marriages contracted
between parties within the prohibited degree of affinity have all the
rights and privileges of children born in wedlock.
Discussion: The matter comes forward for consideration and final
decision pursuant to certification by the Assistant Commissioner on the
authority contained in 8 C.F.R. 6.1(c).
On May 25, 1951, the Commissioner approved the visa petition for
nonquota status submitted by the citizen petitioner on behalf of his
alleged wife and son, subject to proof of the petitioner's claimed
relationship to the beneficiaries. The visa petition indicated that the
petitioner had married the beneficiary on February 10, 1934, at Lugo,
Italy, and that a son was born to the couple at Lugo, Italy, on February
3, 1935. On October 27, 1952, the Department of State requested advice
as to whether the Immigration and Naturalization Service wished to
reconsider the approval of the visa petition on the basis of a
communication dated September 30, 1952, from the American Consulate
General at Genoa, Italy, with regard to the matter. This communication
indicated that the petitioner and the alleged wife were uncle and niece
and that a special dispensation for the celebration of the marriage, in
spite of the existing impediment, was obtained from the church on
November 14, 1933, and that on the basis of such special dispensation
the marriage of the parties was legal in Italy. However, a question
arose because of the fact that the parties herein intended to reside in
the State of Pennsylvania where the petitioner resided inasmuch as the
statutes of the Commonwealth of Pennsylvania define incestuous
fornication between an uncle and a niece as a crime, and provide severe
penalties therefor. In a letter from the Governor's Office of the
Commonwealth of Pennsylvania dated November 14, 1951, the following
information was given:
The statutes of the Commonwealth of Pennsylvania define
incestuous fornication between an uncle and his niece as a crime,
and provide severe penalties therefor. They further declare all
marriages within such degree to be void to all intents and
purposes. These statutes have been construed by the Courts of
Pennsylvania and the Federal Courts as prohibiting residents of
this Commonwealth from going into a foreign country and entering
into such marriage contracts and have held that the marriage would
not be recognized in this State. The decisions are based upon the
proposition that such marriage contract is against good morals and
public policy and contrary to God's law. Furthermore, that if the
relationship entered into elsewhere, although lawful in the
foreign country, is stigmatized as incestuous by the laws of
Pennsylvania, no rule of comity requires the Court sitting in this
State to recognize the foreign marriage as valid and that
Pennsylvania will not tolerate the incestuous union of foreigners
settling within its limits.
The Attorney General further advises me that the cohabitation,
as man and wife, between parties to such marriage in Pennsylvania
could result in criminal prosecution. A conviction of such
offense has been sustained in at least one instance in the
Commonwealth.
From the foregoing advice of the Attorney General it appears
clear that the Commonwealth of Pennsylvania would not recognize a
marriage between uncle and niece, regardless of where the marriage
contract was entered into and of the residence of the parties at
the time of its consummation, and that the cohabitation of the
parties to such marriage in Pennsylvania could result in
conviction of the crime of incest.
The Immigration and Naturalization Service advised the Department of
State that in view of the decision of this Board in Matter of C ,
VP-446985, A-7283133, 4, I. & N. Dec. 632 (April 23, 1952), no action
would be taken to disturb approval of the visa petition under
consideration. Matter of C involved a marriage between an uncle and
niece of the Hebrew faith celebrated in Rhode Island which was lawful in
that state, but which was unlawful in the State of Pennsylvania where
the parties intended to reside. After noting that such a marriage was
considered voidable rather than void ab initio in Pennsylvania, the
Board concluded that absent any authority to the contrary, the
assumption is unwarranted that it was the intention of the legislature
of the State of Pennsylvania to criminally prosecute persons lawfully
married in Rhode Island because they cohabit in Pennsylvania where the
celebration of such marriage is unlawful, and under the circumstances it
would hardly seem reasonable that the State of Pennsylvania would
criminally prosecute the parties to such marriage prior to the
litigation of its validity. Subsequently, the Department of State
transmitted a letter dated March 10, 1953, from the Governor of
Pennsylvania. The letter from the Governor of Pennsylvania reads in
part as follows:
The Act of June 24, 1939, P.L. 872, Section 507, 18 P.S.
Section 4507, which codifies the previous Act of March 31, 1860,
P.L. 382, Section 39, defines marriage within the degrees of
consanguinity or affinity as incest, a felony, and provides for
the imposition of a fine not exceeding $2,000, or imprisonment not
exceeding 5 years, or both. Said Act declares such marriages to
be void. The Act further, in specifying the degrees of
consanguinity, provides that a woman may not marry her father's
brother or her mother's brother. The language of this Act is so
clear that no further discussion would seem to be necessary.
However, your attention is called to two decisions involving this
question.
In the case of United States ex rel. Devine et al. v. Rogers,
Commissioner of Immigration, et al., 109 Federal Reporter 886, the
District Court for the Eastern District of Pennsylvania, held that
a marriage of a United States citizen to his niece in Russia,
though lawful in Russia, will not be recognized as valid in
Pennsylvania, where a continuance of the marriage would expose the
parties to indictment in the criminal courts. In that case the
wife and her daughter were ordered to be deported. The court
concludes its opinion in the following language:
"In view of this exception to the general rule, it seems to me
to be impossible to recognize this marriage as valid in
Pennsylvania, since a continuance of the relationship here would
at once expose the parties to indictment in the criminal courts,
and to punishment by fine and imprisonment in the penitentiary.
In other words, this court would be declaring the relation lawful,
which the court of quarter sessions of Philadelphia county would
be obliged to declare it unlawful. Whatever may be the standard
of conduct in another country, the moral sense of this community
would undoubtedly be shocked at the spectacle of an uncle and
niece living together as husband and wife; and I am, of course,
bound to regard the standard that prevails here, and to see that
such an objectionable example is not presented to the public. A
review of the Pennsylvania legislation affecting the marriage of
uncle and niece will be found in Parker's Appeal, 44 Pa. 309. It
is accordingly ordered that Rosa and William Devine be remanded.'
In the case of Commonwealth v. Grove, 40 D. & C. 139 (1940), an
application for support filed by an aunt who had married her
nephew was denied by reason of the fact that under the
Pennsylvania law, said relation was void. In that case the court
stated:
"It is contended by counsel for prosecutrix that a marriage as
alleged by prosecutrix is not void, but voidable, and that
defendant, before he can defend on the question of an illegal
marriage, must have the marriage annulled by the proper
authorities. In our opinion, there is no merit to this
contention.'
The Attorney General calls attention to the fact that the
letter of Deputy Attorney General Elmer Bolla dated April 14,
1952, to which you refer, dealt with the Act of March 3, 1815, P.
L. 150, 6 Sm.L. 286, Section 5, 48 P.S. Section 163, which is a
civil act defining the status of incestuous marriage. Said Act
declares such marriages to be void and provides for their
dissolution by divorce. It provides further that when said
marriages have not been dissolved during the lifetime of the
parties, the unlawfulness of the same shall not be inquired into
after the death of either the husband or the wife.
The case of Parker's Appeal, 44 Pa. 309, cited in said letter,
refers specifically to the situation where the validity of the
marriage was challenged after the death of one of the parties.
The concluding statement of the court in said decision at page 312
is significant.
"We cannot, however, refrain from stating that such connections
are destructive of good morals, and should not only be frowned
upon by the community, but be very severely punished; and this
unquestionably was the view of the revisers of our Criminal Code.
By the 39th section of the Act of the 31st March 1860, if any
person shall intermarry within the degrees of consanguinity or
affinity, he or she shall, on conviction, be sentenced to pay a
fine not exceeding $500, and to undergo an imprisonment, by
separate or solitary confinement at labor, not exceeding three
years, and all such marriages shall be declared void. * * *'
The conclusion of the Office of the Governor and the Office of the
Attorney General of the State of Pennsylvania, although not having the
binding effect of a decision of a court, is entitled to respect,
particularly since the opinion is buttressed by legal citations. It
appears from the most recent information furnished to us by the highest
authorities of the State of Pennsylvania that the marriage between uncle
and niece, no matter where contracted, would be regarded as void in the
State of Pennsylvania and that the cohabitation of the parties to such
marriage in Pennsylvania could result in conviction of the crime of
incest. /1/ The situation presented differs from that existing in
Matter of C , 4, I. & N. Dec. 632, where the parties, an uncle and
niece, were married in Rhode Island where such marriages were
permissible, and thereafter resided in Pennsylvania and there was no
authority presented that it was the intention of the legislature of the
State of Pennsylvania to criminally prosecute the persons in such a
situation. In view of the additional evidence presented to us regarding
the law of the State of Pennsylvania respecting the instant marriage, it
must be concluded that the visa petition must be denied because the
marriage would be regarded as void in the state of intended residence
and the parties would be liable to criminal prosecution therein for
incest.
There remains for consideration the visa petition for nonquota status
on behalf of A G , the minor child of the petitioner, born February 3,
1935, in Italy. The marriage of the parents of this beneficiary was
legal in Italy and there is no doubt that he is considered as their
legitimate child under the laws of Italy, the law of his domicile. At
the time of the child's birth the petitioner appears to have been a
citizen and domiciliary of the United States. The father appears to
have been a resident of the State of Pennsylvania, and under the laws of
that state it appears that the children of marriages contracted between
parties within the prohibited degrees of affinity have all the rights
and privileges of children born in wedlock. /2/ Accordingly, there
appears to be no obstacle to the recognition of the legitimacy of the
child and the visa petition will be approved solely as to the child.
Order: It is ordered that the prior approval dated May 25, 1951, of
the visa petition on behalf of the wife, C G , be and the same is hereby
revoked and that the visa petition be denied.
It is further ordered that the approval dated May 25, 1951, of the
visa petition on behalf of the child, A G , be and the same is hereby
affirmed.
(1) In 37 Opinions of Attorney General 102 involving a marriage
between a citizen of the United States and a resident of the State of
Virginia to a niece in Poland, the Attorney General of the State of
Virginia expressed the opinion that if the marriage were lawful where
contracted, he might lawfully reside in Virginia with his wife since the
Virginia statute applied only to persons living within the State of
Virginia who went out of the state for the purpose of marrying and with
the intention of returning.
(2) Purdon's Pennsylvania Statutes Annotated (Perm. ed.), Title 48,
section 164.
Release on bond -- 8 C.F.R. 242.2 -- Appeal does not result in release of alien -- No authority for filing motion for enlargement pending action on appeal.
An alien denied release on bond who appeals to the Board of
Immigration Appeals must remain in detention pending final action on his
appeal by the Board. Furthermore, there is no authority in the
regulations relating to bond proceedings (8 C.F.R. 242.2) for the filing
of a motion for enlargement pending a determination of whether release
on bond is warranted.
Discussion: A motion directed to the District Director at Boston,
Massachusetts, and filed on September 24, 1954, by counsel in behalf of
the above-captioned respondent, seeks his release under bond pending the
completion of a hearing ordered by this Board on September 13, 1954. An
order entered by the district director on September 27, 1954, denied
said motion. From this action the respondent appeals.
We last considered the case pursuant to an appeal taken by respondent
under the provisions of 8 C.F.R. 242.2. Our order of September 13,
1954, remanded the case to the district director for a hearing inasmuch
as the meager record before us failed to disclose "the reasons for
revocation of said bond.' The record now before us shows that the
hearing referred to above has been accorded respondent and is now in the
process of being transcribed for submission to this Board. The
respondent during the meantime has remained in custody.
Counsel in this his latest action seeks respondent's release on bond
while this Board considers an appeal from the district director's order
of September 7, 1954, revoking his enlargement on a bond of $7,500
posted May 19, 1954. Counsel argues that under section 6.14 of Title 8
C.F.R., /1/ the order of the District Director at Boston, dated
September 7, 1954, could not properly be executed during the time
allowed for the filing of an appeal or while the appeal is pending
unless a waiver is filed.
We are of the opinion that counsel's argument is without merit. The
status quo of the respondent when we considered the appeal under section
242.2, (supra), was that of an alien whose enlargement on bond had been
revoked and who was then detained. In other words, respondent was in
the same position as any other alien who has been denied release on
bond. Section 6.14 of Title 8, C.F.R., when read in conjunction with
section 242.2 of the same title, can be construed only one way, viz.,
that the status quo of the alien remains the same until there is final
action on the appeal before us. There has been no final action by this
Board on the appeal now pending under section 242.2 of Title 8 C.F.R.
Our order of September 13, 1954, simply remanded the case for a further
hearing.
Clearly, it was not intended under section 6.14, (supra), that an
appeal from the denial of a motion would automatically result in a
release of an alien pending decision on an appeal in bond proceedings
under section 242.2. Furthermore, we find no authority in the
regulations relating to bond proceedings for the filing of a motion for
enlargement pending a determination of whether release on bond is
warranted. This appeal will be dismissed.
Order: It is directed that the appeal be and the same is hereby
dismissed.
(1) Section 6.14 of Title 8, C.F.R. Stay of Execution of Decision.
The decision in any proceeding under this chapter from which an appeal
to the Board may be taken shall not be executed during the time allowed
for the filing of an appeal unless a waiver of the right to appeal is
filed, nor shall such decision be executed while an appeal is pending or
while a case is before the Board by way of certification.
Crime involving moral turpitude -- Petty offense -- Effect of section 4 of the Act of September 3, 1954, P.L. 770, on deportability under section 241(a)(1) of Immigration and Nationality Act.
An alien presently in the United States who was convicted in 1906 for a misdemeanor classifiable as a petty offense is not now deportable under section 241(a)(1) of the Immigration and Nationality Act as one who has been convicted for crime prior to entry. If such alien were outside the United States and applying for admission, he would not be excludable by reason of such conviction because of the provisions of section 4 of the Act of September 3, 1954, P.L. 770. Therefore, he is not deportable in expulsion proceedings.
CHARGE:
Warrant: Act of 1952 -- Excludable at time of entry as one convicted
for crime, to wit: Petit larceny.
Discussion: This appeal relates to a 74-year-old male alien, native
and citizen of Canada, retired. The special inquiry officer has found
deportability on the charge in the warrant of arrest and has entered an
order for deportation. Exception is taken to the conclusion that under
section 241(a)(1) of the Immigration and Nationality Act of 1952, the
respondent is subject to deportation.
The history of the case shows that respondent first entered the
United States in May or June 1900 by train at Detroit, Michigan,
allegedly for permanent residence. This finding is supported by his
sworn statements and his testimony. He asserts, and his testimony and
sworn statements are undisputed, that he has resided in the United
States continuously to the present time except several temporary visits
to Canada after which he returned to this country in 1903, 1908 and 1912
or 1913. His absences were for periods of less than one year. He last
reentered on an uncertain date in the summer of 1912 or 1913. His
entries have not been verified. Documentary evidence shows he entered
the United States prior to October 1, 1906. Considering his residence
status, we find that under applicable regulations he, a Canadian
citizen, who entered the United States prior to October 1, 1906, may,
for reentry purposes, be deemed to have been lawfully admitted for
permanent residence in 1900 (8 C.F.R. 110.38 (prior); and 8 C.F.R.
4.2(b) (current)). His reentries in 1903, 1908, and 1912 or 1913, after
temporary visits to Canada, did not break the continuity of his lawful
domicile because the record indicates that during such absences he
intended to return to this country and resume former residence.
The sole ground for deportability is predicated on the conviction of
the alien in Criminal Court, Cook County, Chicago, Illinois on plea of
guilty to the charge that on July 6, 1906, he committed the crime of
petit larceny (theft of a suitcase of the value of $15). He was
sentenced on September 4, 1906, to 30 days in the House of Correction in
Chicago. At the time the special inquiry officer rendered his decision
on June 5, 1953, he appropriately found that the respondent was subject
to deportation as an alien who was excludable at the time of his
reentries in 1908 and 1912 or 1913, because he had been convicted prior
thereto of a crime involving moral turpitude, to wit: petit larceny.
We now have before us section 4 of Public Law 770, enacted by the 83d
Congress on September 3, 1954, for the relief of persons convicted of a
misdemeanor classifiable as a petty offense, which reads as follows:
Section 4. Any alien who is excludable because of the
conviction of a misdemeanor classifiable as a petty offense under
the provisions of section 1(3) of Title 18, U.S.C., by reason of
the punishment actually imposed or who is excludable as one who
admits the commission of such misdemeanor may hereafter be granted
a visa and admitted to the United States, if otherwise admissible;
provided that the alien has committed only one such offense.
Section 1, Title 18, U.S.C.A., classifies the offenses under that
title:
Offenses classified --
Notwithstanding any Act of Congress to the contrary:
(1) Any offense punishable by death or imprisonment for a term
exceeding one year is a felony.
(2) Any other offense is a misdemeanor.
(3) Any misdemeanor, the penalty for which does not exceed
imprisonment for a period of six months or a find of not more than
$500, or both, is a petty offense.
The question to be resolved in view of the statutes just quoted, is
whether the crime for which the respondent was convicted on plea of
guilty on September 4, 1906, is a misdemeanor classifiable as a petty
offense within 18 U.S.C.A. 1(3).
The legislative history of the crime of larceny in the State of
Illinois, /1/ the jurisdiction where respondent was convicted in 1906,
shows that since at least 1879, the crime of larceny has been divided
into two grades, the value of the stolen property being the standard by
which the punishment to be inflicted is determined. The statutory law,
as amended and in effect between 1879 and 1921, provided that the
convicted person be punished in the penitentiary for a term of one to
ten years if the value of the property exceeded $15; and that if the
value of the stolen property was less than $15, the convicted person
should be confined in the county jail not more than one year and fined
not exceeding $100. By amendment in 1921, larceny of property of the
value of not more than $15 was designated a misdemeanor; and larceny of
property of the value of more than $15 was designated a felony. /2/
(People v. Purcell, 269 Ill. 467, 109 N.E. 1007; and People v. Crane,
356 Ill. 276, 190 N.E. 355.)
Having determined from the statutory law of the State of Illinois
that the respondent was convicted of a misdemeanor, the maximum
punishment being imprisonment in the county jail not exceeding one year
and a fine not exceeding $100, the crime is easily and readily
classifiable as a petty offense under section 1(3) of Title 18, U.S.C.
A. Our conclusion is confirmed by the legislative history of the Act of
September 3, 1954 (Public Law 770), /3/ wherein it is specified that the
benefits of the statute are intended for those who can meet two
requirements or standards, namely, the crime must be an offense which if
committed in the United States would be a misdemeanor (not punishable by
imprisonment for more than one year); and, the offense must be one for
which the actual penalty imposed in the particular case was imprisonment
not to exceed six months or a fine not to exceed $500, or both.
Applying this test, we find that the respondent meets the requirements
and therefore comes within section 1(3), Title 18, U.S.C. A., in that
his conviction on September 4, 1906, was for a misdemeanor, classifiable
as a petty offense.
The respondent is now in the United States. If he were outside the
jurisdiction of this country and applying for admission, he would not be
excludable because of his conviction for petit larceny in Illinois in
1906, because of the provisions of section 4 of the Act of September 3,
1954 (Public Law 770) enacted for the relief of persons convicted of
petty offenses. Inasmuch as that statute would be beneficial to the
respondent should he be outside the United States seeking documentation
to enter, we believe that by the same reasoning he should be relieved
from deportation in expulsion proceedings. In the situation we find
that respondent is not now deportable by reason of his conviction for
petit larceny on September 4, 1906, a petty offense. The charge in the
warrant of arrest is not sustained. The appeal will be sustained and
the proceedings terminated.
Order: It is ordered that the appeal in this case be sustained and
that the proceedings under warrant of arrest dated March 18, 1953, be
terminated.
(1) Sec. 37.328, Illinois Criminal Code, reads: Larceny defined. *
* * Larceny is the felonious stealing, taking and carrying, leading,
riding or driving away the personal goods of another. Larceny shall
embrace every theft which deprives another of his money or other
personal property, or those means or muniments by which the right and
title to property, real or personal, may be ascertained. Private
stealing from the person of another, and from a house in the day time,
shall be deemed larceny. Larceny may also be committed by feloniously
taking and carrying away any bond, bill, note, receipt or any instrument
of writing of value to the owner.
(2) Sec. 37.330, as amended in 1921, reads: Punishment -- Value of
property. * * * Every person convicted of larceny if the property
exceeds the value of fifteen dollars, or if the property is stolen from
the person of another, shall be imprisoned in the penitentiary not less
than one, nor more than ten years; if the property stolen has not been
stolen from the person of another and is of the value of fifteen
dollars, or less, the person convicted shall be confined in the county
jail, or sentenced to labor in the work-house of the county, city or
town where the conviction is had, or on the streets or alleys of the
city, or on the public roads in the county, or to such labor under the
direction of the sheriff as the county board may provide for, not
exceeding one year, and fined not exceeding one hundred dollars. (This
section of law was further amended in 1951 to characterize the offenses
(larceny) involving stolen property valued at $50 or less as
misdemeanors; and offenses (larceny) involving the value of stolen
property of more than $50 as felonies.)
(3) Congressional Record -- Senate Debate on S. 2862 (August 20,
1954, p. 14609).
Deportability -- Section 241(a)(13) of Immigration and Nationality Act -- Valid ground of deportation exists thereunder even though acts occurred prior to effective date of the act.
An alien who, on September 17, 1952, encouraged aliens to enter the United States for the purpose of working for him selling pictures on a commission basis at a profit to him of $2 to $3 per picture sold, knowing that the aliens in question had only non-resident alien border-crossing identification cards not valid for the purpose of working in the United States, is deportable under section 241(a)(13) of the Immigration and Nationality Act. Since respondent had realized a profit on past sales by these aliens (part of the present scheme) and planned to secure further financial remuneration from their future selling activities, he is deportable as an alien who, prior to his own last entry, knowingly and for gain assisted aliens to enter this country in violation of the immigration laws. Even though the conduct which forms the basis for the deportation charge occurred prior to the effective date of the Immigration and Nationality Act, a charge under section 241(a)(13) of that act is proper.
CHARGES:
Warrant: Act of 1952 -- Section 241(a)(13) -- Prior to entry,
knowingly and for gain encouraged aliens to enter the United States in
violation of law.
Discussion: This case is before us on appeal from a decision of the
special inquiry officer dated September 10, 1953, directing deportation
on the charge stated above. Respondent, a 28-year-old native and
citizen of Mexico, last entered the United States on January 29, 1953,
at El Paso, Texas, upon presentation of a resident alien's
border-crossing identification card. His first entry occurred on
September 29, 1942, when he came to live permanently with his mother and
stepfather. He made another entry in 1944, after spending several
months in Mexico.
The instance upon which the warrant charge is founded occurred on
September 17, 1952, when respondent allegedly induced aliens A N M$0os
and J M H to enter the United States illegally to work for him selling
religious pictures on a commission basis. Respondent's reported purpose
was to make a profit of $2 or $3 per picture sold by each alien. The
aliens in question had local crossing cards, not valid for work here,
which fact was allegedly known to respondent.
On September 18, 1952, A N M stated that about two months before,
respondent had suggested that he come to the United States to work for
the latter; that the respondent supplied the car for the sales
activities, although A paid his own expenses in general; that the
religious pictures retailed for $8.95, $2.00 of which A was permitted to
keep, while turning over the remainder to respondent; that he had been
selling these religious pictures in El Paso, Texas, and Carlsbad, New
Mexico, for about two months prior to his apprehension by immigration
officers; and that respondent knew that A had only a non-resident
alien's border-crossing identification card, not good for work in this
country; and that A concealed his true purpose in coming to the United
States, when he made his various entries for selling purposes. J M H
made a similar statement on the same date, although he stated that he
had worked only about six weeks for respondent selling religious
pictures.
On September 18, 1952, respondent testified that he worked for the El
Paso Hotel Supply Company at $45 per week, but that he had been selling
religious pictures on the side for about 7 or 8 months. Respondent
admitted that the aliens in question had been working for him selling
religious pictures for two or three months on a commission basis; that
he arranged for the entry of these aliens, by supplying them with the
car; that after entry, he gave the aliens the pictures to be sold in
Carlsbad, New Mexico; that respondent expected the aliens to sell the
pictures as his agents and anticipated profits of $2 or $3 per picture
sold; and that he knew that the aliens in question had only
non-resident alien's border-crossing identification cards, not valid for
purposes of working in the United States.
At the warrant hearing, respondent stated that he had car trouble and
that one of the aliens had suggested a mechanic in Juarez to whom he
took the car for repairs. Respondent said that the following day the
aliens went to the garage voluntarily and brought the car back to him in
El Paso at his place of business. Respondent testified that upon
arrival at his place of employment, the aliens asked if they could use
the car for the day and he agreed, although he did not know the purpose
or destination they had in mind. Respondent also said that the aliens
approached him in El Paso about working for him in this country but
denied knowing the status of the aliens in regard to entry or the right
to work here.
While respondent originally admitted encouraging A and J in their
illegal entry, in an effort to make a profit on the sale of religious
pictures, respondent recently attempted to contradict this testimony.
Since the statements of the aliens involved coincide with respondent's
original version of this episode, we will accept the respondent's
admission of complicity in the enterprise, made September 18, 1952, as
reflecting more accurately the true facts in the case.
Section 241(a) provides as follows:
Any alien in the United States (including an alien crewman)
shall, upon the order of the Attorney General, be deported who --
* * *
(13) prior to, or at the time of any entry, or at any time
within five years after any entry, shall have, knowingly and for
gain, encouraged, induced, assisted, abetted, or aided any other
alien to enter or to try to enter the United States in violation
of law.
Under the identically phrased predecessor statute, the Board
determined that the word "gain' meant the act of securing monetary
advantage or the bringing into this country of aliens for venal or
mercenary reasons, resulting from commercial transactions (Matter of R D
, A-2786530, 2, I. & N. Dec. 758, 765 (Atty. Gen., 1947)).
In the present case, respondent obtained certain religious pictures
through an importer in Mexico for about $1.25 each. He encouraged the
two aliens in question to enter the United States illegally to sell
these pictures for him as his agents at a commission of $2 per picture.
Hence, since respondent had realized a profit on past sales by these
aliens (part of the present scheme) and planned to secure further
financial remuneration from their future sales activities, respondent
had, prior to his own last entry, knowingly assisted aliens to enter
this country, contrary to the immigration laws.
Counsel contends that because the conduct alleged as the basis of
deportation occurred on September 17, 1952, or prior to the effective
date of the Immigration and Nationality Act of 1952, that section 241(
a)(13) is not applicable to respondent as a ground of deportation
existing at the time the acts were committed. However, it is well
established that legislation affecting aliens, and especially in
deportation, is not invalid if retrospective in operation (United States
ex rel. Eichenlaub v. Shaughnessy, 338 U.S. 521 (1950); Mahler v. Eby,
264 U.S. 32 (1924); United States ex rel. Barile v. Murff, 116 F.Supp.
163 (D.C.Md., 1953); Galvan v. Press, 347 U.S. 522 (1954); De Luca v.
O'Rourke, 213 F.(2d) 759 (C.A. 8, 1954); Matter of C , E-076976, 5, I.
& N. Dec. 630 (B.I.A., 1954). Cf. Fong Yue Ting v. United States, 149
U.S. 698 (1893); United States ex rel. Kaloudis v. Shaughnessy, 180
F.(2d) 489 (C.A. 2, 1950)).
Furthermore, since the statutory predecessor of section 241(a)(13)
/1/ contains identical phraseology, respondent would be in no better
condition should the savings clause (section 405(a)) be relied upon, as
counsel suggested. Since respondent was represented by counsel at the
warrant hearing and was given full opportunity to present his side of
the case, there was no denial of due process, lack of fair hearings, or
denial of justice (United States ex rel. Bilokumsky v. Tod, 263 U.S.
149 (1923); Morgan v. United States, 304 U.S. 1; United States ex rel.
Matranga v. Mackey, 115 F.Supp. 45 (S.D. N.Y., 1953)).
Counsel also poses certain objections in regard to the conduct of the
hearing. Counsel asserts that the hearing transcript is not an exact
one. Since the case involves a language problem, we feel that
translations may understandably vary somewhat. But, unless this
variance is either marked, or prejudicial (and there is no basis for the
latter conclusion), it does not render the proceeding unfair.
Counsel attempts to challenge the knowledge of the Spanish language
of an immigration officer who interrogated respondent and the other
aliens upon their apprehension. However, the testimony of this
immigration officer served to substantiate his claim that his knowledge
of the Spanish language was "better than average.' In addition, the
doctrine of official regularity serves to overcome counsel's objection,
unless clear evidence is produced to the contrary. (Cf., Zacharias v.
McGrath, 105 F.Supp. 421 (D.C., D. of C., 1952).)
Therefore, it is concluded that the deportation charge under section
241(a)(13) of the act of 1952 is sustained. /2/ The appeal is
accordingly dismissed.
Order: It is hereby ordered that the appeal be dismissed.
(1) The predecessor statute was section 19(b)(1) of the act of 1917.
(2) It is noted in passing that in Barrios-Macias v. Minton, 114 F.
Supp. 470 (W.D. Tex., 1953), cited by counsel, the facts giving rise to
the legal conclusion that a smuggling operation existed are not set out.
Preference quota status -- Section 203(a)(4) of Immigration and Nationality Act -- Brothers of the half blood -- Effect of legitimation under section 230 of the Civil Code of California.
(1) Brothers of the half blood who have the same father and different mothers are brothers within the meaning of section 203(a)(4) of the Immigration and Nationality Act and are eligible for preference quota status thereunder, provided the petitioner and the beneficiary are both legitimate.
(2) Where the petitioner, who was born out of wedlock, is the half
brother of the beneficiary, but was legitimated under section 230 of the
California Civil Code, he is eligible to file a visa petition on behalf
of the beneficiary.
Discussion: The case comes forward on appeal from the order of the
District Director, Los Angeles, dated April 22, 1954, denying the visa
petition on the ground that the eligibility of the beneficiary for the
classification requested has not been established.
The petitioner seeks preference status under section 203(a)(4) of the
Immigration and Nationality Act on behalf of the beneficiary, an alleged
brother of the half blood. They have a common father and different
mothers. The beneficiary was born in Italy on November 9, 1921, the son
of P DeF and of E F , who were married on April 16, 1921. The
petitioner was born at Los Angeles, California, on May 23, 1928, the son
of P DeF and N G , who were married at Chicago, Illinois, on January 3,
1925. No steps have been taken by the petitioner to establish the
termination of his father's first marriage and it may be presumed that
such prior marriage was not terminated when the father married for the
second time.
There is no question as to the legitimacy of the beneficiary.
Counsel contends that the petitioner should also be regarded as
legitimate, citing the provisions of Chapter 89, Paragraph 17 of the
Illinois Revised Statutes, Inasmuch as the petitioner was born in the
State of California, the Illinois Statutes would appear to be
inapplicable. Counsel also relies upon section 230 of the Civil Code of
California which provides as follows:
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 such
child is thereupon deemed for all purposes legitimate from the
time of its birth.
Counsel in his brief sets forth that the petitioner and his parents
have resided in California since the birth of the former in May 1928.
The birth certificate of the petitioner submitted in connection with the
petition shows the father's name as P DeF . It is apparent that there
has been recognition and acknowledgment by the father of the son,
reception into the family, and the treating of the son as though he were
a legitimate child.
This statute has been construed as a statute of legitimation rather
than adoption and the provisions thereof are to be liberally construed.
The word "family' is not a technical word but a word of flexible meaning
and is to be broadly construed so as to include within its purview even
a case where the father is living out of wedlock with a woman not his
lawful wife. /1/ It, therefore, appears the petitioner is a legitimate
child under the provisions of section 230 of the California Civil Code
and that he is eligible to file a visa petition on behalf of the
beneficiary.
Order: It is ordered that the visa petition be approved for fourth
preference status.
(1) Matter of P , A7393010, 4, I. & N. Dec. 354, 358 (C.O., 1951);
Estate of Baird, 193 Calif. 225; In re McGew, 183 Calif. 177; Rankin
v. Rankin, 52 Calif.App.(2d) 231.
Discretionary authority, section 211(c) and (d) of Immigration and Nationality Act -- May be exercised by special inquiry officer at warrant hearing where alien not entitled to preference status under which visa was granted.
(1) An alien who was admitted to the United States for permanent residence as the minor son of a legally resident alien but whose status under such preference was aborted prior to the issuance of the immigrant visa by the death of his father may be granted the benefits of section 211(c) and (d) of the Immigration and Nationality Act nunc pro tunc in expulsion proceedings. In these circumstances, there is no respondent's status under the only question being with respect to the respondent's status under the preference.
(2) Under 8 C.F.R. 242.61(c), the special inquiry officer has authority to consider and act on applications for the benefits of section 211(c) and (d) of the act submitted during an expulsion hearing.
CHARGES:
Warrant: Immigration and Nationality Act -- Section 241(a)(1) --
Excludable at time of entry -- Quota immigrant without proper visa.
Discussion: This record relates to a 19-year-old single male, a
native and citizen of Italy, whose only entry into the United States
occurred at the port of New York on September 24, 1953, as a passenger
on the SS. Independence. He was then admitted as a preference quota
immigrant under the provisions of section 203(a)(3) of the Immigration
and Nationality Act as the minor child of an alien lawfully admitted for
permanent residence.
The record indicates that the visa was issued to the respondent by
the Consulate General, Naples, Italy, on July 17, 1953, as the minor
unmarried son of an alien lawfully admitted to the United States on the
basis of a petition approved March 2, 1953. The record further
establishes that the respondent's father, through whom the preference
was claimed, died in Italy on April 28, 1953. The respondent's
testimony during the hearing indicates that there was no fraud on his
part in obtaining an immigrant visa as the minor son of a resident
alien. However, inasmuch as his father was no longer alive at the time
of issuance of the immigrant visa, he was not entitled to the preferred
status under which the visa was granted. He is therefore subject to
deportation on the warrant charge.
During the hearing, counsel applied in respondent's behalf for relief
under section 211(c) of the Immigration and Nationality Act, to admit
the respondent for permanent residence nunc pro tunc the date of his
entry and terminate the proceedings. The special inquiry officer denied
application for such relief on the basis that granting of such relief is
beyond the scope of the authority of a special inquiry officer in
expulsion proceedings. The alternative application for voluntary
departure was granted.
Section 211(c) of the Immigration and Nationality Act provides as
follows:
The Attorney General may in his discretion, subject to
subsection (d), admit to the United States any otherwise
admissible immigrant not admissible under clause (2), (3), or (4)
of subsection (a), if 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 and outside foreign contiguous territory, or, in the case
of an immigrant coming from foreign contiguous territory, prior to
the application of the immigrant for admission.
Section 211(a), referred to in the subsection quoted above, provides
as follows:
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 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.
The respondent is within the class of aliens to whom relief under
section 211(c) may be granted as he is within the category described by
section 211(a)(4), inasmuch as he was not of the proper status under the
quota specified in the immigrant visa, his status as the minor son of a
legal resident alien having been aborted prior to issuance of the
immigrant visa, by the death of his father.
In determining whether the discretion contained in section 211(c) may
be exercised in respondent's behalf, the question remains whether the
provisions of subsection (d) of section 211 proscribe such relief.
Subsection (d) provides, in pertinent part, as follows:
No quota immigrant within clause (2) or (3) of subsection (a)
shall be admitted under subsection (c) if the entire number of
immigrant visas which may be issued to quota immigrants under the
same quota for the fiscal year, or the next fiscal year, has
already been issued.
Subsection (d) is inapplicable to the respondent, as he falls within
the class specified in section 211(a)(4), and not within clause (2) or
(3) of section 211(a). The alien has already been charged under the
applicable quota to the remaining 20 per centum of the quota for the
quota area pursuant to the provisions of section 203(a)(3). We,
therefore, conclude that the respondent is within the classes of persons
who may be granted relief pursuant to section 211(c).
The special inquiry officer denied the respondent's application for
relief under section 211(c) "since it is believed that it is beyond the
scope of the authority of the special inquiry officer in expulsion
proceedings to invoke the benefits of such section 211(c) in behalf of
an alien.'
Proper determination of the appeal in the matter necessarily includes
decision as to whether the special inquiry officer ruled correctly on
his authority to act upon an application for relief under section
211(c). Regulations governing the conduct of deportation proceedings
and the authority of special inquiry officers in such proceedings are
contained in Part 242 of Title 8, Code of Federal Regulations. Section
8 C.F.R. 242.61 applies to the preparation and entry of decision of a
special inquiry officer. Paragraph (c) of that section provides in
pertinent part:
The order of the special inquiry officer shall be * * * that
such other action be taken in the proceedings as may be required
for the appropriate disposition of the case.
Under the above-quoted regulation, a proper order in the case should
have included a ruling upon the respondent's request for relief under
section 211(c).
The special inquiry officer specifically found in the instant case
that there was no fraud on the part of the respondent in obtaining the
immigrant visa with which he entered the United States. The respondent
stated during the hearing that he did not know at the time of entry or
at time of obtaining his immigrant visa that because of the death of his
father, the visa petition was automatically revoked. He stated that his
first knowledge that he was not entitled to enter as the minor son of a
legal resident was brought to him when his brother N attempted to enter
the United States at a later date, and was returned to Italy because of
the death of his father prior to the issuance to him of an immigrant
visa. It is, therefore, concluded that the respondent's inadmissibility
was not known to and could not have been ascertained by the exercise of
reasonable diligence by him prior to departure from the last port
outside of the United States. In view of all the facts and
circumstances recited above, it is concluded that the discretion
contained in section 211(c) should be exercised in behalf of the
respondent, nunc pro tunc the date of his entry. It will be so ordered.
Order: It is ordered that the appeal be, and the same is hereby
sustained.
It is further ordered that pursuant to the discretion contained in
section 211(c) of the Immigration and Nationality Act, the proceedings
be terminated and the alien be considered as having been lawfully
admitted to the United States for permanent residence at New York, New
York, on September 24, 1953, notwithstanding his inadmissibility at that
time as an alien who was not of the proper status under the quota
specified in the immigrant visa.
Subversive: Communist Party of the United States -- Suspension of deportation, section 244(a)(5) of Immigration and Nationality Act.
An alien who admits membership in the Communist Party of the United States from 1926 to 1937 and who rose to the positions in that party of organizer and educational director and field organizer of the Unemployment Council is found to be ineligible for suspension of deportation under section 244(a)(5) of the Immigration and Nationality Act. In view of the high positions he held in the Communist Party and the inflammatory nature of a 1930 Communist Party leaflet he distributed and a speech made by him in 1931 and in the absence of exacting evidence to support his claimed termination of Party membership and alleged opposition to Communism, which evidence he declined to furnish, he has not established that he is no longer sympathetic to Communist principles.
CHARGES:
Warrant: Act of October 16, 1918, as amended -- Member of or affiliated with an organization advocating overthrow of United States Government.
Lodged: Act of 1918 -- Member of or affiliated with an organization that believes in, advises, advocates or teaches the overthrow by force or violence of the Government of the United States.
Act of 1918 -- Member of or affiliated with an organization which causes to be written, circulated, distributed, printed, published or displayed printed matter, advising, advocating and teaching the overthrow by force or violence of the Government of the United States.
Act of 1918 -- Has been a member after entry of the Communist Party
of the United States.
Discussion: Execution of an order dated March 16, 1932, directing
respondent's deportation to Russia on the first two lodged charges, was
not effected due to the inability of the Service to obtain a travel
document for deportation. By order dated February 21, 1951, we granted
a motion of the Commissioner to reopen the proceedings to bring the
record up to date.
On March 27, 1952, we dismissed the respondent's appeal from a
decision of the Assistant Commissioner directing that the respondent be
deported on the third lodged charge, in that after entry he was an alien
who was a member of the Communist Party of the United States. Because
of such finding of deportability, the Assistant Commissioner deemed it
unnecessary to discuss any of the other charges. When we last
considered this case on April 8, 1953, we granted the motion of the
respondent to reopen the proceedings to afford him an opportunity to
submit evidence showing that he is eligible for suspension of
deportation under section 244(a)(5) of the Immigration and Nationality
Act. This case is before us now on appeal from a decision of the
special inquiry officer denying suspension of deportation and directing
that the respondent be deported on the third lodged charge stated above.
The appeal is directed to the denial of the application for suspension
of deportation.
The respondent is a 47-year-old married male. He is a native of
Russia and is, or last was, a national of that country. He has resided
in the United States since his admission for permanent residence on
February 17, 1922. He admits membership in the Communist Party of the
United States from 1926 to 1937. Deportability on the third lodged
charge stated above is established by the record.
The respondent married a naturalized citizen of the United States in
New York in May 1942. They have no children.
When questioned in July 1930, by an officer of the Immigration
Service, the respondent stated under oath that he was born in New York
on December 29, 1904, and that he was and had been a member of the
Communist Party for two years. At a warrant hearing on March 6, 1931,
he was informed that no record could be found of his claimed birth in
New York. On August 31, 1931, at a continued hearing, he finally
admitted that he was born in Russia and that he was an alien, but denied
ever being a member of the Communist Party despite the fact that he was
confronted with the aforementioned statement made by him in July 1930.
According to the present testimony of the respondent, he was an
organizer and educational director for the Communist Party in New York.
He said that the top grade he reached in the hierarchy of Communism was
Field Organizer of the Unemployment Council in charge of a borough which
comprised several councils. He stated that his main work was with the
Unemployment Council but that he also attended conferences of a general
nature and was a delegate from his council to meetings of an educational
nature.
The respondent claims that although he was one of the foremost
members of the convention and elected a member of its presidium, he
walked out of a convention of the Communist Party in 1935 in New York
when his criticism of the dictatorial methods of the leadership of the
Communist Party "was answered with lies.'
He testified that he became inactive in the Communist Party in 1936
but remained a member until and last attended a Communist Party meeting
the latter part of 1937. He stated that he did not notify the Communist
Party of his intention to terminate his membership as failure to pay
dues, failure to attend meetings, and lack of activity was sufficient
evidence to the officers that he was no longer with them. He alleges
that he did state verbally to many friends and co-workers that he was no
longer in sympathy with the Communist Party.
The respondent said he has been trying to become a citizen since his
induction into the Army in 1942 and has on many occasions averred to the
immigration authorities his separation from the Communist Party. He was
honorably discharged from the army in 1945.
Respondent has been arrested on several occasions, the last time in
1931, apparently in connection with his activities in behalf of the
Communist Party. In July 1930, he was arrested by the police in
Providence, Rhode Island, and was convicted for distributing a leaflet
captioned: "WORKERS, DEMONSTRATE AGAINST IMPERIALIST (BOSSES) WAR.'
This leaflet reads in part as follows:
We must fight the bosses' war preparations, and stand ready to
defend the Soviet Union.
Don't wait until the slaughter begins, fight war now]
DEMONSTRATE AGAINST IMPERIALIST (BOSSES WAR) AUG. 1st] DEMAND
ALL FUNDS FOR UNEMPLOYMENT RELIEF-FORM COMMITTEE IN YOUR SHOP TO
DEFEND SOVIET UNION] TURN THE NEXT WAR INTO CIVIL WAR -- AGAINST
THE BOSSES] JOIN THE PARTY OF YOUR CLASS -- THE COMMUNIST PARTY.
Evidence introduced at the 1931 hearing also shows that the alien was
one of the speakers at a meeting sponsored by the Communist Party in
Haverhill, Massachusetts, on May 1, 1931. A then clerk of the Boston
office of the Immigration Service, who attended the meeting and took
notes, testified at the warrant hearing in 1931. According to this
witness, the respondent began his talk by denouncing the American
Legion, Veterans of Foreign Wars. and "Ham Fish of the so-called Fish
Committee.' The respondent pointed out the success of revolutions in
other countries and commended the workers of those countries for
instituting "those militant struggles which ended in the overthrow of
the bosses.' He said in part: "Nothing can halt the growth of the
Communist Party. Revolutions in Mexico, Brazil, show the strength of
Communism. The workers, now more powerful, has leadership recruited
from the ranks of the workers, and this leadership, in a militant
struggle will lead the workers to victory in the United States just as
the workers have been victorious in other countries where revolutions
have taken place to overthrow the capitalistic bosses. We say to the
bosses "you see what happened in Russia, you see what happened to Spain,
and what the militance of the workers has meant.' We tell the bosses
"look at Nicaragua, and beware'.'
The respondent was also reported as saying in his speech: "Look at
Russia * * * They have a government which this capitalistic government
could not compare with in a million years.' The respondent also stated
that the United States was making preparations to war upon the Soviet
Union, to launch an attack on Soviet Russia and advised his listeners
against taking the part of capitalism in such a war. He said "In one
World War, the workers fought for capitalism, but they are wise now, and
there will be a Soviet World, and we are not afraid to say so, if any
attempt is made to attack Soviet Russia.'
In view of the high positions the respondent held in the Communist
Party and the inflammatory nature of the 1930 Communist Party leaflet,
and the speech made by him in 1931, we feel that the respondent should
present exacting evidence to establish his claimed termination of
membership in and his opposition to the Communist Party. This he has
failed to do. The affidavits from three persons acquainted with him
attest only to his good moral character and physical presence in the
United States.
He claimed that he can present "hundreds of witnesses' as to his
severance from the Communist Party but declined an opportunity to submit
further evidence or affidavits. He asserted that his position is well
known to the authorities as he has been investigated for at least the
past eight or nine years. He has not joined any anti-Communist
societies although he claims he intends to do so when he becomes a
citizen.
The only witness presented by him was his wife. She testified that
she has been acquainted with him for 25 years, but that she did not know
he was a member of the Communist Party until after he severed his
connection with the Party in 1935 when he told her he was disillusioned.
In our opinion the evidence of record does not establish that the
respondent is no longer sympathetic to Communist principles.
Accordingly, we feel that suspension of deportation is not warranted.
The appeal will, therefore, be dismissed.
Order: It is ordered that the appeal be and the same is hereby
dismissed.
Inadmissibility -- Section 212(a)(19) of Immigration and Nationality Act -- Applications for extension of stay not "other documentation' within the meaning of that section.
The phrase "or other documentation' in section 212(a)(19) of the Immigration and Nationality Act refers to documents required at the time of an alien's application for admission to the United States, as for example, a reentry permit, border-crossing identification card or United States passport fraudulently obtained. Applications for extension of stay are not "documentation' within the meaning of that section.
EXCLUDED:
Act of 1952 -- Admits committing acts which constitute essential elements of a crime -- 18 U.S.C. 1001.
Act of 1952 -- Procured documentation by fraud or misrepresentation.
Discussion: This case is before us on appeal from the decision of a
special inquiry officer on August 16, 1954, excluding the appellant on
the grounds stated above.
The appellant is a 19-year-old male, native and citizen of Cuba, who
applied for admission for permanent residence on August 6, 1954, at
which time he was in possession of a valid passport and a nonquota
immigrant visa. The two grounds for exclusion stem from the fact that
the appellant, during a previous sojourn in the United States as a
visitor for pleasure from September 1953 to July 8, 1954, had been
employed for a major portion of that period but had stated in two
applications for extension of stay that he had not been employed.
We have carefully considered the representations of counsel in his
brief on appeal. He contends that the appellant cannot read or speak
English; that he did not know what statements appeared in the
applications for extension of stay but merely signed them; that one
application was prepared by an attorney and the other by a friend of the
family; and that the appellant was not aware that the applications
contained statements that he had not been employed in the United States.
It appears that the appellant's mother was then also in the United
States as a temporary visitor; that she and the appellant had their
applications prepared at the same time; that she paid the filing fees
for all of the applications as well as the fee of the attorney who
prepared the applications about November 4, 1953; and that the
appellant, who was then 18 years of age, relied upon his mother who
appeared as a witness on his behalf.
The special inquiry officer's first conclusion of law is that the
appellant is excludable under section 212(a)(9) of the Immigration and
Nationality Act because he admits having committed the essential
elements of a crime involving moral turpitude, and the crime is
indicated as that set forth in the last clause of 18 U.S.C. 1001,
namley, "* * * makes or uses any false writing or document knowing the
same to contain any false, fictitious or fraudulent statement or entry,
* * *.' The special inquiry officer did not believe the appellant's
claim that he did not know his applications for extension of temporary
stay contained the statement that he was not employed. We need not
express an opinion as to the factual question, that is, whether the
appellant did or did not know that this statement was contained in each
of his applications. One of the essential elements of the crime set
forth in the last clause of 18 U.S.C. 1001 is knowledge of the falsity
of the statement. Since the appellant has made no admission that he
knew that his applications contained this false statement, he is not
inadmissible under section 212(a)(9) of the Immigration and Nationality
Act.
With respect to the remaining ground of excludability, the special
inquiry officer relied on that portion of section 212(a)(19) which
reads, "Any alien who * * * has procured a visa or other documentation *
* * by fraud, or by willfully misrepresenting a material fact.' He held
that the two applications for extension of temporary stay became
"documentations' when approved by the appropriate immigration officer.
We do not agree with this interpretation and hold that the phrase "or
other documentation' in section 212(a)(19) refers to documents required
at the time of an alien's application for admission to the United
States, as for example, a reentry permit, border-crossing identification
card or a fraudulently obtained United States passport. The
applications for extension of stay are not "documentation' and the
appellant is, therefore, not excludable under section 212(a)(19).
Accordingly, the appeal will be sustained.
Order: It is ordered that the appeal be sustained and that the alien
be admitted for permanent residence.
Fine -- Section 256 of Immigration and Nationality Act -- Liability incurred where crewmen discharged though not paid off.
Where alien crewmen were transferred to vessels other than the one on
which they arrived in the United States without the permission required
by 8 C.F.R. 252.4 having been obtained, a fine under section 256 of the
Immigration and Nationality Act is incurred even though such crewmen may
not have been "paid off' and may still have continued in the employ and
under the pay of the same corporation.
Discussion: This matter is before us by reason of an appeal from the
decision of the District Director of Immigration and Naturalization, New
York, New York, bearing date July 23, 1953, wherein fine in the amount
of $5,000, $1,000 for each crewman concerned, was imposed upon the
Transportadora Grancolombiana, Ltd., agents for the aforementioned
vessel, which vessel arrived at New York on February 10, 1953, from
Kingston, Jamaica, British West Indies, for violation of section 256 of
the Immigration and Nationalitly Act (8 U.S.C. 1286).
The specific violation complained of is discharging the alien crewmen
as aforesaid without first having obtained the consent of the Attorney
General.
Notice of intention to fine under the Immigration and Nationality Act
was served upon and receipt thereof acknowledged on April 30, 1953, by
the Transportadora Grancolombiana, Ltd.
The evidence of record as contained in a report of an officer of the
Immigration and Naturalization Service, New York City, bearing date
March 19, 1953, is to the effect that in a report pertaining to changes
in crew filed by the master (Form I-489) bearing date February 14, 1953,
relating to the departure of the vessel as aforesaid on February 14,
1953, from New York, New York, for Maracaibo, South America, it is shown
that the alien crewmen above mentioned were discharged at the port of
New York. The list of arriving crewmen (Form I-480) shows the admission
of these crewmen under and pursuant to the provisions of section 252 of
the Immigration and Nationality Act (8 U.S.C. 1282) for a period of time
(not exceeding 29 days) during which the vessel on which they arrived
remained in port. The New York office of the Immigration and
Naturalization Service has no record of permission being granted to
discharge or pay off these crewmen.
Section 256 of the Immigration and Nationality Act, (supra),
provides, in part:
It shall be unlawful for any person, including the owner,
agent, * * * of any vessel * * * to pay off or discharge any alien
crewman, except an alien lawfully admitted for permanent
residence, employed on board a vessel * * * arriving in the United
States without first having obtained the consent of the Attorney
General. If it shall appear to the satisfaction of the Attorney
General that any alien crewman has been paid off or discharged in
the United States in violation of the provisions of this section,
such owner, agent, * * * or other person, shall pay to the
collector of customs of the customs district in which the
violation occurred the sum of $1,000 for each such violation. * *
* Such fine may, in the discretion of the Attorney General, be
mitigated to not less than $500 for each violation, upon such
terms as he shall think proper.
8 C.F.R. 252.4 pertaining to request for change of period of landing
provides in part:
An alien crewman permitted to land for the period set forth in
section 252(a)(1) of the Immigration and Nationality Act who is
maintaining his status but who desires to depart as a member of
the crew of a vessel * * * other than the one on which he arrived,
may, within the period for which permitted to land, apply in
person to an immigration officer to have his landing changed to
that authorized under section 252(a)(2) of the Immigration and
Nationality Act.
As hereinabove set forth no such permission was requested or granted.
Counsel, in oral argument before this Board, indicated that the
Transportadora Grancolombiana, Ltd., is a corporation privately owned
but originally was organized by the governments of Venezuela, Colombia,
and Ecuador and that shortly following the enactment of the provisions
of Public Law 414 (McCarran-Walter Act), the alleged infractions of the
statute occurred.
The principal contention is that none of these parties was discharged
or paid off.
In connection with the present appeal, the Assistant Director,
Insurance and Claims Department of the aforementioned owner or agent
stated that on February 14, the vessel here involved sailed from New
York for Buenaventura and other Colombian ports. Prior to departure the
New York office of the corporation received instructions from Caracas
and Bogota to carry out certain transfers of crewmen. These
instructions were directed to the corporation for execution inasmuch as
they could only be carried out conveniently in New York.
J S , a Venezuelan, and S R , a Colombian, were cadets participating
in the training program of Venezuela and had been serving their
prescribed tour of sea duty on board the ship preparatory to examination
for officers' licenses in the furtherance of maritime needs and prestige
of Venezuela. Upon arrival at New York these two cadets had
satisfactorily completed their training program and were ready for
examination. They were ordered by the Bogota and Caracas principals to
return to Caracas to sit for their examination. These men were merely
transferred to the M/V Cd. De Manizales which was then at the adjacent
pier and which vessel sailed from New York February 14, for La Guaira
and other Venezuelan ports. The transfer was effected on February 13,
1953, and reported on both Forms I-489 and I-480.
As to E M and G R , both Venezuelans and members of the crew, it
appears that they were due for annual vacations and the Caracas
principals of the corporation ordered their transfer to the same vessel
as the preceding two crewmen and their transfer was similarly effected.
As to A G , a Colombian, the Flota Mercante Grancolombiana, S.A., a
joint Venezuelan, Colombian, and Ecuadorian maritime venture had a large
building program under way, in which program was being built the M/V Cd.
De Valencia, which vessel was then on her maiden voyage. To command the
newly constructed vessel it was necessary that experienced personnel be
assigned and on February 13, orders were received from Caracas to
transfer G , a chief electrician from the M/V Cd. De Barquisimeto in
order that he might join the M/V Cd. De Valencia in Montreal. The
transfer was made promptly so that no loss of valuable time would occur.
The transfer was effected February 13 and G departed by train for
Montreal, Canada.
It is averred that all of these crewmen continued in the employ and
under the pay of the corporation. There was no intention, it is
asserted, of violating the statute.
While we may agree that there was no intention to permit these aliens
to land in the United States unlawfully or to afford them an opportunity
to remain in the United States illegally, the fact remains that
permission to transfer these crewmen to another vessel was neither
obtained by the principals, their agents, or the aliens themselves as
required by 8 C.F.R. 252.4 as hereinabove set forth. The seamen were
"discharged' from the ship upon which they arrived and permission for
such discharge was not authorized. The fact that there may not have
been a "pay off' does not change the situation. In these circumstances,
it is our conclusion that a violation of the statute is established
adequately.
The remaining question for determination is the request for
mitigation of the amount of penalty. In view of the fact that it is
shown and uncontroverted that all of these alien crewmen departed from
the United States, we shall mitigate the amount of penalty to the extent
of $500 for each crewman, the remainder $500 being permitted to stand.
Order: It is ordered that the appeal from the decision of the
District Director of Immigration and Naturalization, New York, New York,
bearing date July 23, 1953, be and the same is hereby dismissed.
It is further ordered that the amount of penalty be mitigated to the
extent of $500 for each alien. The remainder $500 for each crewman to
stand, the total penalty $2,500.
Legitimacy of child born out of wedlock -- China -- Section 101(b)( 1)(A) of Immigration and Nationality Act.
A child born out of wedlock in China in 1934, "in the relationship to
his mother, is deemed to be legitimate' in that country (Article 1065 of
the Civil Code of the Republic of China) and, under rules of comity,
such status of legitimacy will be recognized in the United States so as
to bring the child within the statutory definition of "legitimate child'
in section 101(b)(1)(A) of the Immigration and Nationality Act.
Discussion: On August 6, 1954, the Board of Immigration Appeals
sustained an appeal from the decision of the district director who had
entered an order denying the petition for the issuance of a visa in
behalf of the beneficiary.
Petitioner, born in China in 1909 of a United States citizen father,
seeks to obtain nonquota status on behalf of her alleged son, born in
China on September 18, 1934. Petitioner has stated that she was engaged
to the father of the beneficiary, but that the death of the father
interrupted their plans to become married.
The issue presented is whether a child born out of wedlock in China
may be considered a "child' within the contemplation of section 101(a)(
27)(A) of the Immigration and Nationality Act so as to qualify for
nonquota immigrant status as the beneficiary of a visa petition filed in
his behalf by his United States citizen mother. Whether or not he is
eligible for such status depends on the construction of the word
"legitimate' contained in section 101(b)(1)(A) of the act, which
provides that the term "child' means an unmarried person under 21 years
of age, who is a legitimate child.
A legitimate child was defined by Blackstone as one that is born in
wedlock, or within a competent time afterwards, 1 Jones, B1. Com. 635.
Legitimacy has been defined as "lawful birth; the condition of being
born in wedlock, the opposite of illegitimacy or bastardy,' Black's Law
Dictionary, 3rd ed. (1933), p. 1088. See also 24 Words and Phrases 672;
2 Bouvier's Law Dictionary, 3rd Rev. (1914) 1927.
It would, therefore, appear that according to this definition the
beneficiary in the instant case is not a legitimate child and
consequently is not eligible for nonquota status (Matter of A , VP
6-2026, 5, I. & N. Dec. 272, A.G. February 2, 1954). In the cited case,
it was pointed out by the Attorney General that the petitioner in that
case was the mother of a child conceived and born out of wedlock, that
the child was fathered by a man other than the man petitioner
subsequently married, that the child was never legitimated by its
natural father and, consequently, the child could neither be considered
legitimate or legitimated.
The Board, however, reaches the conclusion that the child is eligible
for nonquota status inasmuch as the law of China, namely, Article 1065
of the Civil Code of the Republic of China, adopted February 28, 1931,
provides that:
In the relationship to his mother, a child is deemed to be
legitimate and no acknowledgment is necessary.
The Board, therefore, concludes that under the law of China the
beneficiary was considered at all times to be the legitimate child of
the petitioner and, consequently, such status of legitimacy should
receive recognition.
It is the view of the Service that the word "legitimate' has a
precise and well-settled meaning in this country and that the
interpretation given thereto should be the one that is commonly
understood in the United States, namely, that a child born out of
wedlock is an illegitimate and not a legitimate child. The following is
stated in Sutherland, Statutory Construction, Volume 3, p. 5302 (1943):
Words and phrases having a well-defined meaning in the common
law are to be interpreted in the same sense under the statute when
used in connection with the same or similar subject matter with
which they are associated at common law. Likewise, words employed
in the statute involving new and different subject matter should
be examined in the light of the meaning which was attached to them
at common law.
While a person who is legitimate according to law of his domicile is
in general, legitimate elsewhere, this rules does not apply where
recognition of legitimacy is contrary to the positive law or to the
sovereign power where legitimacy is in question, or so repugnant to good
morals that it would be improper to recognize legitimacy (10 Corpus
Juris Secundum 102). Following the Board's reasoning in this case that
a child born out of wedlock in China is legitimate as to the mother, it
necessarily follows that all children born out of wedlock in China are
legitimate as to the mother, whether or not the mother is legally
married or a concubine. In a memorandum supplied by the Library of
Congress, dated July 23, 1954, relating to Chinese law, it is stated
that in a court decision it was concluded that:
Although the present Civil Code does not recognize the status
of concubinage, according to the provision in Par. 2, Article 1065
of the Civil Code, children born by a concubine shall be her
legitimate descendants * * * (1933; Court of Appeals, No. 1727).
Certainly, it cannot be seriously contended that Congress intended to
grant nonquota status to children of concubines who would be deemed
"illegitimate,' according to the standards of the United States. The
conclusion reached by the Board would only result in granting
preferential treatment to children born in China over children born out
of wedlock in the United States or in other foreign countries.
In the case of Ng Suey Hi v. Weedin, 21 F.(2d) 801 (C.C.A. 9, 1927),
the court had before it a question as to the legitimacy of a child born
in China of a polygamous marriage, for the purpose of determining
whether citizenship was conferred upon such child. In that case, the
court concluded that while the validity of a marriage is determined by
the place where the marriage was contracted, an exception to the general
rule is ordinarily made in the case of marriages repugnant to the public
policies of the domicile of the parties, in respect to polygamy, incest
or miscegenation, or otherwise contrary to its positive laws. The court
concluded that the marriage was contrary to public policy of the United
States and would not be considered valid. Furthermore, it was concluded
that the child born of such marriage was an illegitimate child. A
similar conclusion was reached in Mason ex rel. Chin Suey v.
Tillinghast, 26 F.(2d) 588 (C.C.A. 1, 1928).
Similarly, it is the view of the Service that the child in the
instant case cannot be deemed to be a "legitimate' child within the
meaning of the section involved so as to be eligible for nonquota
status. In construing the word "legitimate' for the purposes of the
Immigration and Nationality Act, the meaning as understood in the United
States should be used. The word should be defined without reference to
the law of the foreign jurisdiction. Cf. United States v. Savoretti,
200 F.(2d) 546 (C.A. 5, 1952), wherein it was concluded that the moral
turpitude referred to in section 19 of the Immigration Act of February
5, 1917, is determined without reference to the laws of foreign
jurisdictions. It is, furthermore, the view of the Service that to give
preferential treatment to the children born in China is against public
policy and that such construction was not intended by Congress. The
appeal from the decision of the district director should not have been
sustained.
Motion is hereby made that the Board of Immigration Appeals
reconsider and withdraw its order of August 6, 1954, and enter an order
dismissing the appeal.
Discussion: The matter comes before us on motion dated September 9,
1954, of the Acting Assistant Commissioner, Inspections and Examinations
Division, requesting that we reconsider and withdraw our order of August
6, 1954, and enter an order dismissing the appeal from the decision of
the district director denying the petition for the issuance of a visa in
behalf of the beneficiary.
The record discloses that the petitioner seeks nonquota status on
behalf of her alleged child, born in China on September 18, 1934. The
beneficiary was born out of wedlock. However, because of the provisions
of Article 1065 of the Civil Code of the Republic of China, adopted
February 28, 1931, which states that in the relationship to his mother,
a child is deemed to be legitimate and no acknowledgment is necessary,
the conclusion was reached that the beneficiary was legitimate according
to the law of China where the child and his parent were both domiciled.
Under familiar rules of comity we granted recognition to the status of
legitimacy thus conferred under the laws of China and approved the visa
petition.
The Service contends that the word "legitimate' has a precise and
well-settled meaning in this country and that the interpretation given
thereto should be the one that is commonly understood in the United
States, namely, that a child born out of wedlock is an illegitimate
child and not a legitimate child. Section 101(a)(27)(A) confers
nonquota status upon the "child' of a citizen of the United States. The
term "child' is defined in section 101(b)(1) to include (A) a legitimate
child; or (B) a stepchild; or (C) 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.
A reference to the definition in section 101(b)(1) fails to disclose
any limitation upon the use of the word "legitimate.' The definition is
not limited to merely children in the United States and should be
construed in like manner as subparagraph (C) of section 101(b)(1) which
specifically extends the manner of legitimation to the law of the
child's or the father's residence or domicile whether in or outside the
United States. The language used is all-inclusive, and in view of the
plain language employed there is no need to engage in the nebulous
process of ascertaining congressional intent. If the term "legitimate'
were to be restricted in application as contended for by the Assistant
Commissioner, while the term "legitimated' was given its extended
meaning as provided in subparagraph (C) of section 101(b)(1), an
anomalous situation would be presented, since it must be remembered that
a legitimated child is regarded as legitimate from birth. /1/
The doctrine of general writers is that the status of legitimacy or
illegitimacy is governed by the law of the child's origin. /2/
Legitimacy being a domestic status, it must on general principles be
governed by the domicile of the parties to it. These parties are the
child or one or both of its parents, for a child may be the legitimate
child of one parent and not of the other. /3/ Legitimacy once created
by proper law should everywhere be recognized, and the same effect given
to it as is given to the same status created in the state of forum, or
in the state where the effect is to be found. /4/ The cases referred to
in the motion, Ng Suey Hi v. Weedin, 21 F.(2d) 801 and Mason ex rel.
Chin Suey v. Tillinghast, 26 F.(2d) 588, involved the issue of a Chinese
polygamous marriage, a situation not present in the instant case.
Furthermore, the decisions in those cases refusing to recognize foreign
legitimation as contrary to public policy appeared to rest on no sound
principle and have been the subject of criticism. /5/
The accepted view is that where the identity of parents is
established considerations of public policy no longer forbid the
recognition of their relationship to the child. When by the law of the
state of domicile of the father of an illegitimate child, at the time of
his marriage with its mother of an illegitimate child, at the time of
his the child as his own, the child is legitimated, it will be regarded
as legitimate everywhere, even in states whose laws do not recognize
subsequent legitimation. /6/ Legitimation may be accomplished in
various ways: By judicial proceeding (Tennessee); by recognition and
acknowledgment by the putative father, either in writing or in other
ways (Iowa, Kansas, North Dakota); by recognition alone (Kansas, Iowa);
under statutes requiring admission into the family (section 230,
California Civil Code); by recognition or acknowledgment in writing
(Oklahoma, Washington, California, Iowa); as well as the more unusual
method of legitimation by subsequent marriage of the parents. /7/ Under
section 230 of the California Civil Code a child born in China by a
concubine was legitimated by the action of the father which was
construed as compliance with the requirements of the statute. /8/ Under
paragraph 162 of the Austrian Civil Code a child born out of wedlock was
legitimated by Presidential Decree upon petition of the mother who never
married the natural father of the child. /9/
It is concluded that sufficient authority has been cited to show that
the law looks with favor upon the status of legitimacy and will confer
recognition upon such status created in accordance with the law of the
child's origin. This rule of law favoring legitimacy and its
recognition has received widespread application and there is no reason
to assume that Congress in using the word "legitimate' intended to limit
it to a dictionary definition when the great body of case law and
authoritative writings indicate a widespread acceptance of the liberal
interpretation of that term. It is concluded that no change should be
made in our prior order.
Order: It is ordered that the motion be and the same is hereby
denied.
(1) 32 Op.Atty.Gen. 162.
(2) Schouler, Domestic Relations (6th edition) Vol. I, p. 735.
(3) Beale, Conflict of Laws (1935 edition) Vol. II, pp. 704-705.
(4) Beale, Conflict of Laws (1935 edition) Vol. II, p. 712.
(5) 31 Harvard Law Review 892; Beale, Conflict of Laws, Vol. II, p.
712.
(6) 32 Op.Atty.Gen. 162; 39 Op.Atty.Gen. Gen. 556.
(7) 7 American Jurisprudence, p. 660 ff.
(8) Matter of L T , VP 13-1790 (April 12, 1954).
(9) Matter of C , VP 11-1530 (April 24, 1954).
The decision and order of the Board of Immigration Appeals dated
April 14, 1955, are hereby affirmed.
Evidence -- Hearsay -- Witnesses.
Where timely objection is made by an alien at a warrant hearing to the receipt in evidence of recorded testimony previously given by others in a criminal prosecution against such alien, she has a right to be confronted with the witnesses for purposes of cross-examination and, where such witnesses are available and not produced, their statements are neither competent nor probative evidence to sustain a finding of deportability.
CHARGE:
Warrant: Immigration and Nationality Act -- Section 241(a)(12) --
Engaged in prostitution at any time after entry.
Discussion: The case comes forward pursuant to certification of the
order of the special inquiry officer dated July 9, 1954, directing that
the proceedings be terminated.
The record relates to a native and citizen of Cuba, 24 years old,
female, who last entered the United States at the port of Tampa,
Florida, on December 13, 1952, and was admitted for permanent residence.
The warrant of arrest charges that the respondent is subject to
deportation under the provisions of section 241(a)(12) of the
Immigration and Nationality Act in that by reason of conduct, behavior
or activity after entry she became a member of one of the classes
specified in section 212(a)(12), to wit: aliens who have engaged in
prostitution.
The respondent has testified under oath in these proceedings and has
denied that she was ever a prostitute or that she engaged in
prostitution. The only evidence in support of the charge contained in
the warrant of arrest consists of a record in the City Magistrates'
Court of the City of New York in the case of People v. M L , containing
the affidavit of a police officer, the complaining witness in the
proceeding, charging that the defendant, the respondent herein, violated
the provisions of section 887, subdivision (4), clause (a) of the Code
of Criminal Procedure of the State of New York in that she did offer to
commit prostitution with one K T , demanding and receiving the sum of
$5.00 therefor and did commit said act with said T . The remaining
evidence consists of the stenographer's minutes of a trial in the City
Magistrates' Court of the City of New York, Women's Court, Borough of
Manhattan, in the same case. Counsel for the respondent has objected to
the admissibility of these documents and has also demanded that the
witnesses who testified in the criminal proceeding be required to appear
at the deportation hearing for the purpose of confrontation and
cross-examination. The examining officer, in behalf of the Immigration
Service, declined to produce those witnesses in the deportation hearing,
without indicating that such witnesses were unavailable or not
procurable.
The question presented is whether the Service has sustained the
burden of establishing deportability upon the basis of reasonable,
substantial, and probative evidence. The first source of evidence to
support the charge that the respondent engaged in prostitution is the
record of conviction of violation of section 887(4)(a) of the Code of
Criminal Procedure of the State of New York which provides:
Sec. 887. The following persons are vagrants:
4. A person (a) who offers to commit prostitution.
The supporting affidavit of the police officer charges that the
defendant offered to commit prostitution with one K T , demanding and
receiving the sum of $5.00 therefor and did commit said act with said T
. After trial the respondent was found guilty of violation of section
887(a)(a) as a person who offers to commit prostitution. It is doubtful
that a conviction under this section, which has been held not to
constitute crimes or misdemeanors but only quasi-criminal or statutory
offenses, of offering to commit prostitution satisfies a deportation
charge that the respondent engaged in prostitution. Manifestly, there
may be an offer to commit an act of prostitution without actually
engaging in such prostitution. Under the New York statute, the
violation of section 887(4)(a) lies in the vagrancy not the
prostitution. /1/
The only source of evidence relied upon to sustain the charge is the
stenographer's notes of the minutes of the testimony in the criminal
hearing. It appears that the defendant in the criminal proceedings was
represented by counsel and that opportunity was presented for
cross-examination and that the witnesses were in fact cross-examined by
counsel. It is believed that this former evidence would be admissible,
subject to one important condition which will be discussed later. Even
if hearsay, the evidence would be admissible as long as it was probative
of the matter in issue. This former testimony was subject to
cross-examination and does not fall within the scope of the hearsay rule
which signifies a rule rejecting assertions, offered testimonially,
which have not been in some way subjected to the test of the
cross-examination. /2/ The hearsay rule excludes testimonial statements
not subjected to cross-examination; when, therefore, a statement has
already been subjected to cross-examination and is admitted, as in the
case of testimony at a former trial, it comes in because the rule is
satisfied, not because it is an exception to the rule. The principle
requiring a testing of testimonial statements by cross-examination has
always been understood as requiring not necessarily an actual
cross-examination but merely the opportunity to cross-examine if
desired. /3/
It has long been settled as one of the exceptions to the general rule
excluding hearsay that the testimony of a witness given in a former
action or at a former stage of the same action is competent in a
subsequent action or a subsequent proceeding in the same action where it
is shown that the witness is dead and the parties and questions in issue
are substantially the same. /4/ However, the former testimony of a
witness cannot be used if the witness is still available for the purpose
of testimony. /5/
It is believed to be a fatal defect to the competency and probative
value of the former testimony of the witnesses that these witnesses were
apparently available but were not produced for the purpose of
confrontation and cross-examination. The process of confrontation has
two purposes, the first main and essential, the other secondary and
dispensable: (1) to secure for the opponent the opportunity of
cross-examination; and (2) to present the elusive and incommunicable
evidence of the witness' deportment while testifying. The latter may be
dispensed with if the witness is not available or obtainable for good
and satisfying reasons. /6/
Thus it has been held that in deportation proceedings verified or
unverified statement by inspectors and others are ex parte and
incompetent if the makers are not produced for cross-examination by the
alien. /7/ Where statements of three persons were taken at time of a
raid and were put into evidence to support a prostitution charge, upon
demand, two of the three witnesses were required to be produced for
cross-examination and the third witness, who could not be found, was
excused. /8/ Where an opportunity of cross-examination was demanded and
might be afforded by the production of the witnesses, it may be an
unfair hearing if they are not produced. /9/
In a deportation proceeding for causing a woman to be transported in
interstate commerce, an affidavit of a witness used in a criminal
prosecution under the Mann Act was introduced into evidence at the
hearing but the witness was not produced and no showing was made that
such witness was not procurable. The court held that even in such
administrative proceedings, fundamental and essential rules of evidence
and procedure must be observed including the right of cross-examination.
/10/ Similarly, in a deportation proceeding for managing a house of
prostitution and receiving the earnings of a prostitute, a demand for
cross-examination was made to the Commissioner after the hearing of
witnesses whose ex parte affidavits were used during the hearing but who
were not produced for cross-examination. The refusal to produce and
permit cross-examination of such witnesses rendered the proceedings
unfair. /11/ Exception to this rule of confrontation and
cross-examination is made where the statements of the witnesses are not
controverted or no desire is expressed to have such witness produced.
/12/ In a suit for declaratory judgment for United States citizenship
under 8 U.S.C. 903, a copy of testimony of an adverse witness before a
board of special inquiry was held to be not admissible in the
declaratory judgment suit, over objection, where the witness was
available but not produced. /13/
From the authorities cited, it would appear that where objection is
made, there is a right on the part of the alien to be confronted with
the witnesses for purposes of cross-examination and confrontation, and
where such witnesses are available, it is not sufficient to rely merely
upon their former testimony in another proceeding. In the instant case
there has been a refusal to produce the witnesses, upon demand which was
timely, since made during the hearing even though not made at the time
of the introduction into evidence of the record of former testimony.
There was no explanation that these witnesses were not available or
procurable, and it must be presumed that the failure to produce the
witnesses was willful and that they were available. Under the
circumstances, this failure to produce the witnesses for the purposes of
confrontation and cross-examination rendered the hearing unfair and
constituted a denial of due process. It is concluded that the evidence
presented was not probative or competent and that the charge contained
in the warrant of arrest has not been sustained. Accordingly, the
proceedings should be terminated.
Order: It is ordered that the proceedings be and the same are hereby
terminated.
(1) People v. Cowie, 34 N.Y.S. 888.
(2) 5 Wigmore on Evidence, (3d ed.) section 1362.
(3) 5 Wigmore on Evidence, sections 1370, 1371.
(4) Jones, B.W., The Law of Evidence in Civil Cases (3d ed.) p. 503.
(5) 5 Wigmore on Evidence, section 1415.
(6) 5 Wigmore on Evidence, sections 1395, 1396.
(7) Ex parte Radivoeff, 278 Fed. 227 (1922).
(8) Qwock So Mui v. Nagle, 11 F.(2d) 492 (1926).
(9) United States ex rel. Ng Wing v. Brough, 15 F.(2d) 377 (1926).
(10) Svarney v. United States, 7 F.(2d) 515 (1925); Whitfield v.
Hanges, 222 Fed. 745 (1915).
(11) Maltez v. Nagle, 27 F.(2d) 835 (1928).
(12) United States ex rel. Karpathiou v. Schlotfeldt, 106 F.(2d) 928
(1939).
(13) Wong Wing Foo v. McGrath, 196 F.(2d) 120 (1952).
Appeal -- Jurisdiction of Board of Immigration Appeals -- Denial of bail to excluded alien -- 8 C.F.R. 6.1(b)(7), 242.2, and 212.9.
(1) Section 242 of the Immigration and Nationality Act and the regulations promulgated thereunder (8 C.F.R. 242.2) do not confer jurisdiction upon the Board of Immigration Appeals to review the determination of an officer of the Immigration and Naturalization Service denying bail to an alien who has been ordered excluded and who is detained awaiting deportation.
(2) Provision for the release of an excluded alien is found in section 212(d)(5) of the Immigration and Nationality Act and the regulation which implements this provision of the statute (8 C.F.R. 212.9) does not provide for an appeal to the Board of Immigration Appeals by an excluded alien who has been denied parole by a designated officer having administrative jurisdiction of the port where the alien seeks to enter.
EXCLUDABLE:
Act of October 16, 1918, as amended by the Internal Security Act of
1950 -- Had been a member of the Communist Party of the United States.
Discussion: The respondent herein, pursuant to the provisions of
section 242.2 of Title 8, C.F.R., as amended July 20, 1954 (19 F.R.
4442), appeals from a determination by the District Director at New York
dated August 2, 1954, denying him release on bond. The district
director in transmitting the appeal to the Board raises a jurisdictional
question of law. Counsel on the other hand seeks a reversal of the
district director's decision denying bond.
Before proceeding with a discussion of the jurisdictional question of
law referred to above, a brief summary of prior litigation relative to
respondent's detention appears to be in order. Respondent is a Chinese
seaman whose immigration status was adjusted through suspension of
deportation in 1949, resulting in the creation of a record of lawful
entry as of June 10, 1945. During November 1950, respondent sailed
foreign as a member of the crew of a vessel of American registry. Upon
his return during March 1951, he was excluded without a hearing before a
board of special inquiry as an alien whose entry was deemed prejudicial
for security reasons pursuant to the provisions of 8 C.F.R. 175.57. A
writ of habeas corpus was thereupon sued out by respondent and
litigation with respect thereto finally reached the Supreme Court (344
U.S. 590). The Supreme Court found respondent to be a lawful permanent
resident of the United States and therefore protected by the due process
clause of the Fifth Amendment. The court remanded the case for an
administrative hearing in connection with respondent's application for
admission to the United States as a returning resident alien previously
lawfully admitted.
Respondent was accorded appropriate hearings in accordance with the
Supreme Court's ruling. He was found to have been from about 1945 until
September 1948 a member of the Communist Party of the United States. By
an order dated June 30, 1953, this Board dismissed respondent's appeal
from the aforestated decision of the special inquiry officer. After the
excluding decision of the special inquiry officer but before the Board's
order of June 30, 1953, respondent, on May 13, 1953, sued out a writ of
habeas corpus in the United States District Court, Southern District of
New York, alleging that his continuous detention at Ellis Island was
arbitrary and illegal. An order entered by the court June 5, 1953,
sustained the writ to the extent of directing respondent's enlargement
on bond in the sum of $2,500 on condition that he report regularly each
week to the Immigration Service. Respondent, in compliance with the
conditions of the court's order providing for his enlargement, reported
in person at Ellis Island, New York, once each week until July 23, 1953.
Respondent, on June 14, 1954, having failed to report for approximately
one year, was returned to custody and is now held at Ellis Island.
A writ of habeas corpus concerned with the respondent's present
detention and denial of bail was argued in the United States District
Court on August 3, 1954. The Government's answer to the writ was argued
in the alternative. It was urged on the one hand that the writ does not
lie inasmuch as the relator is detained as an excluded alien and
therefore his application for bail is not subject to judicial review nor
is respondent eligible therefore under section 242(c) of the Immigration
and Nationality Act as this provision of law relates to the apprehension
and deportation of aliens and not to those who have been excluded. It
was urged on the other hand that assuming, arguendo, the validity of
relator's claim that he is entitled to judicial review of his
application for bail under the aforestated provision of the Immigration
and Nationality Act, his filing of a writ of habeas corpus was premature
since he had failed to exhaust his administrative remedies under the
regulations (8 C.F.R. 242.2) recently amended on July 20, 1954 (19 F.R.
4442), which permit an appeal to the Board of Immigration Appeals from
the denial of administrative bail.
Counsel, in answer to the Government's contention that the relator
had failed to exhaust his administrative remedies, urged the court to
hold the writ of habeas corpus in abeyance in order that an appeal could
be taken to this Board pursuant to 8 C.F.R. 242.2 and a ruling had
thereon, thus obviating the necessity of suing out a new writ of habeas
corpus. The court agreed with this suggestion of counsel whereupon an
appeal was immediately taken.
The jurisdictional question before us is whether the provisions of
section 242 of the Immigration and Nationality Act and the regulations
promulgated thereunder (8 C.F.R. 242.2) are applicable to respondent, an
alien who has been ordered excluded and deported from the United States.
The district director urges that the procedure concerning appellate
jurisdiction set forth in 8 C.F.R. 242.2 relates solely to deportation
proceedings instituted pursuant to section 242 of the Immigration and
Nationality Act and since respondent's detention results from an order
of exclusion, this Board does not have jurisdiction in the instant case.
Jurisdiction to consider an appeal from an adverse determination by
designated officers of the Immigration and Naturalization Service
relating to bond, parole, or detention of an alien as provided in
section 242.2 of Title 8, C.F.R., is conferred upon this Board by
section 6.1(b)(7) /1/ of the same title. Section 242.2 (supra), as
amended July 20, 1954 (19 F.R. 4442), authorizes, inter alia, designated
officers of the Immigration and Naturalization Service to detain or
release on bond or parole, aliens against whom proceedings under section
242 of the Immigration and Nationality Act of 1952 are pending. Under
the regulations (8 C.F.R. 242.2) the alien may appeal in any case in
which release from custody or on parole is denied with this exception:
-- "The foregoing provisions concerning notice, reporting, and appeal
shall not apply when the Service notifies the alien that it is ready to
execute the order of deportation and takes him into custody for that
purpose.'
The statutory provision conferring the authority referred to in
section 242.2 of the regulations, (supra), is section 242 of the
Immigration and Nationality Act which according to the title thereof is
concerned with the "apprehension and deportation of aliens.' That
portion of section 242(a) pertinent here provides: -- "Any such alien
taken into custody may in the discretion of the Attorney General and
pending such final determination of deportability, (1) be continued in
custody; or (2) be released under bond in the amount of not less than
$500 with security approved by the Attorney General, containing such
conditions as the Attorney General may prescribe; or (3) be released on
conditional parole.' "Such alien' as that term is used above refers to
any alien held in custody pursuant to a warrant of arrest issued in
deportation proceedings, the authority for which is found in the first
sentence of section 242(a) and reads as follows: -- "Pending a
determination of deportability in the case of any alien as provided in
subsection (b) of this section, such alien may, upon warrant of the
Attorney General, be arrested and taken into custody.' Subsection (c) of
the same section provides, inter alia, "When a final order of
deportation under administrative processes is made against any alien,
the Attorney General shall have a period of six months from the date of
such order, or, if judicial review is had, then from the date of the
final order of the court, within which to effect the alien's departure
from the United States, during which period, at the Attorney General's
discretion, the alien may be detained, released on bond in an amount and
containing such conditions as the Attorney General may prescribe, or
released on such other conditions as the Attorney General may
prescribe.'
It is clear from the statutory provisions cited above that section
242 of the Immigration and Nationality Act is concerned solely with
aliens apprehended in the United States and held for deportation
proceedings under a warrant of arrest issued pursuant to subsection (a)
thereof. The authority to continue or detain aliens in, or release them
from custody, provided by this section relates solely to an alien
apprehended in deportation proceedings. The appeal to this Board
provided in section 242.2 of Title 8, C.F.R., is from an adverse
determination of designated officers of the Immigration and
Naturalization Service who have exercised the statutory authority
contained in section 242 of the Immigration and Nationality Act. Since
this authority relates solely to aliens apprehended in deportation
proceedings, it has no application to an alien detained in an exclusion
proceeding. Provision for the release of an excluded alien is found in
section 212(d)(5) /2/ of the Immigration and Nationality Act, and the
regulation which implements this provision of the statute (8 C.F.R.
212.9) does not provide for an appeal to this Board by an excluded alien
who has been denied parole by a designated officer having administrative
jurisdiction of the port where the alien seeks to enter. Accordingly,
we find that this Board does not have jurisdiction to consider the
appeal before us.
We reach this conclusion fully cognizant of the Supreme Court's
ruling with respect to this particular alien that "for purposes of his
constitutional right to due process, we assimilate petitioner's status
to that of an alien continuously residing and physically present in the
United States' (Kwong Hai Chew v. Colding, 344 U.S. 590, 596; 97 L.Ed.
576, 583, February 9, 1953). Procedural due process under the Fifth
Amendment in this instance was held, under the circumstances presented,
to be the right to an administrative hearing. A hearing has been
granted respondent and he has been found subject to exclusion. We find
no authority to the effect that due process under the Fifth Amendment
bestows any constitutional right to release on bond. The assimilation
referred to in the Supreme Court's ruling does not transpose this case
into something other than an exclusion proceeding. The right to a
hearing in an exclusion proceeding does not confer jurisdiction upon
this Board to consider an appeal under statutory authority and
regulations concerned solely with deportation proceedings.
By way of comment, we note that respondent's continued detention
results from an action instituted by him and now pending in the United
States District Court for the District of Columbia, wherein he seeks a
review of the final order directing his exclusion and to enjoin its
execution. A communication from the District Director at New York
relates that respondent's deportation can be effective upon a vessel
departing from San Francisco September 18, 1954, and that no difficulty
would be entailed in securing a transit visa. Respondent's deportation,
however, has been stayed temporarily by a restraining order of the
United States District Court for the District of Columbia.
Accordingly, we find for the reasons aforestated that section 242 of
the Immigration and Nationality Act and the regulations promulgated
thereunder (8 C.F.R. 242.2) do not confer jurisdiction upon this Board
to review the determination of an officer of the Immigration Service
denying bail to an alien who has been ordered excluded and who is
detained awaiting deportation. An appropriate order will be entered.
Order: It is ordered that the appeal be and the same is hereby
dismissed.
(1) Section 6.1(b)(7) of Title 8, C.F.R., reads as follows:
Appeal shall lie to the Board of Immigration Appeals from the
following:
(7) Determinations of district directors, deputy district directors,
or officers in charge relating to bond, parole, or detention of an alien
as provided in section 242.2 of this chapter.
(2) Section 212(d)(5), Immigration and Nationality Act, reads as
follows:
The Attorney General may in his discretion parole into the United
States temporarily under such conditions as he may prescribe for
emergent reasons or for reasons deemed strictly in the public interest
any alien applying for admission to the United States * * *.
Private bill -- Status acquired thereby is preserved by savings clause, section 405(a) of Immigration and Nationality Act.
(1) An alien, who was deported in 1948 on the charge of having aided aliens to enter the United States unlawfully and in whose case the Congress in 1949, with full knowledge of these facts, authorized reentry by private bill waiving the provisions of the Act of March 4, 1929 (relating to permission to reapply after arrest and deportation) does not become deportable under section 241(a)(13) of the Immigration and Nationality Act, by reason of his prior misconduct.
(2) Where Congress, in enacting private legislation antedating the Immigration and Nationality Act, intended to permit the alien to gain lawful permanent residence in the United States so that he might establish his eligibility for citizenship, the alien is considered to have acquired a "status' and rights "in the process of acquisition' which are protected by the provisions of section 405(a) of the act.
CHARGE:
Warrant: Act of 1952 -- Section 241(a)(3) -- Prior to entry aided
alien to enter United States unlawfully.
Discussion: The case comes forward pursuant to certification under
the provisions of 8 C.F.R. 6.1(c) by the Assistant Commissioner.
The record relates to a native and citizen of Denmark, 32 years old,
male, who last entered the United States at the port of New York, New
York, on December 6, 1949, ex MS. Batory, and was admitted for permanent
residence upon presentation of a non-quota immigrant visa. The
respondent had been convicted on his plea of guilty on June 5, 1946, in
the District Court of the United States at Galveston, Texas, of
conspiracy to violate section 88, Title 18, United States Code, and
section 470, Title 18, United States Code, and was sentenced to
imprisonment for 30 days on a charge of unlawfully aiding and assisting
alien stowaways to enter the United States, committed on or about May
22, 1946. He previously was made the subject of deportation hearings
and was found deportable on the charge of no immigrant visa under the
Immigration Act of May 26, 1924, and upon the charge within five years
after entry had knowingly and for gain assisted an alien to enter or try
to enter the United States unlawfully under the act of February 5, 1917.
Warrant of deportation was executed by the respondent's departure
foreign from the port of New York on December 9, 1948. Under the Act of
March 4, 1929, as amended, the respondent was because of his deportation
inadmissible to the United States until after the expiration of one year
from the date of deportation, and after one year if he failed to obtain
permission to reapply for admission. To remedy this, a private bill,
H.R. 3718, was enacted on October 26, 1949, permitting his admission
upon application, notwithstanding the provisions of the Act of March 4,
1929, relating to permission to reapply for admission after deportation.
Previously, the ground of deportation based upon respondent's
conviction of assisting an alien to unlawfully enter the United States
was contained in section 19(b)(1) of the Immigration Act of 1917, as
amended, and provided as follows:
(1) Any alien who, at any time within five years after entry,
shall have, knowingly and for gain, encouraged, induced, assisted,
abetted, or aided any other alien to enter or to try to enter the
United States in violation of law. Emphasis supplied.
It is noted that the prior statute contained a time limitation of
five years after last entry to support this charge. However, the
present proceeding is instituted under the provisions of the Immigration
and Nationality Act of 1952, section 241(a)(13) of which provides:
Any alien in the United States (including an alien crewman)
shall, upon the order of the Attorney General, be deported who --
(13) prior to, or at the time of any entry, or at any time
within five years after any entry, shall have, knowingly and for
gain, encouraged, induced, assisted, abetted, or aided any other
alien to enter or to try to enter the United States in violation
of law. Emphasis supplied.
In addition to the phraseology of section 241(a)(13), which no longer
limits this ground of deportability to five years after any entry but
makes it applicable to violations occurring prior to any entry, there is
pertinent the provisions of section 241(d) of the Immigration and
Nationality Act which are as follows:
Except as otherwise specifically provided in this section, the
provisions of this section shall be applicable to all aliens
belonging to any of the classes enumerated in subsection (a),
notwithstanding (1) that any such alien entered the United States
prior to the date of enactment of this Act, or (2) that the facts,
by reason of which any such alien belongs to any of the classes
enumerated in subsection (a), occurred prior to the date of
enactment of this Act.
Thus, by the specific provisions of both section 241(a)(13) and
section 241(d) a retrospective application is given to the ground of
deportability charged in the warrant of arrest. Such a retrospective
application does not violate the ex post facto clause of the
Constitution which applies only to criminal proceedings inasmuch as
deportation is not a criminal proceeding. /1/ In a similar case
involving aiding another alien to enter the United States illegally
which occurred on or about December 13, 1952, prior to the effective
date of the Immigration and Nationality Act, the court dismissed a writ
application and declined to consider the ex post facto provisions of the
Constitution applicable to deportation proceedings. /2/
The fact that an alien had previously been lawfully admitted for
permanent residence does not prevent the retrospective application of
new grounds of deportation previously not existing under prior law but
contained in the new Immigration and Nationality Act. Thus, in Matter
of M , /3/ an alien who entered the United States in 1910 and committed
a narcotic violation in 1937 for which he was not deportable under then
existing law, was held deportable under section 241(a)(11) of the
Immigration and Nationality Act which was held to be retrospective in
application. /4/
In United States ex rel. Barile v. Murff, /5/ the petitioner
originally entered the United States in 1924 and was found deportable
under section 241(a)(4) of the Immigration and Nationality Act because
of conviction of two crimes of moral turpitude committed after entry.
It was contended that prior to the Immigration and Nationality Act the
petitioner was not deportable because one of the sentences was for less
than a year. The court held that legislation affecting aliens is not
invalid merely because it is retrospective in operation nor does it
contravene Article I, section 9 of the Constitution forbidding the
passage of ex post facto laws as deportation proceedings are not
criminal in nature.
The respondent is married to a native-born citizen of the United
States and has two minor citizen children; his wife is expecting the
birth of a third child. His record appears to be good. While the
private bill in behalf of the alien contemplated the adjustment of his
immigration status under the then existing law, the enactment of the
Immigration and Nationality Act appears to have defeated that objective.
The respondent has been granted voluntary departure. There appears to
be no greater degree of discretionary relief available to the
respondent.
Order: It is ordered that the outstanding decision and order be and
the same are hereby approved.
(1) Calder v. Bull, 3 U.S. 386; Johannessen v. United States, 225
U.S. 227; Bugajewitz v. Adams, 228 U.S. 585; Mahler v. Eby, 264 U.S.
32; Carlson v. Landon, 342 U.S. 524; Harisiades v. Shaughnessy, 342
U.S. 580; Matter of P , E-1356, 5, I. & N. Dec. 392, affd. Pino v.
Nicolls, 119 F.Supp. 122.
(2) Barrios-Macias v. Minton, 114 F.Supp. 470.
(3) Int. Dec. No. 442 (A-2669541, 5, I. & N. Dec. 261); affd.
United States ex rel. Marcello v. Ahrens, 113 F.Supp. 22; 212 F.(2d)
830; Matter of C , E-076976, 5, I. & N. Dec. 630.
(4) Similarly, Matter of P , E-080814, 5, I. & N. Dec. 651; Matter
of R E , A-7797663 (1953).
(5) 116 F.Supp. 163.
The facts of the case are fully set forth in our order of August 30,
1954, in which we found the respondent subject to deportation on the
charge stated in the warrant of arrest and approved the order of the
special inquiry officer granting him the privilege of voluntary
departure in lieu of deportation. On April 1, 1955, the Commissioner of
the Immigration and Naturalization Service requested that the case be
referred to the Attorney General for review, taking the view that there
is a substantial question as to whether the action taken by the 81st
Congress in enacting Private Law 345 on October 26, 1949, on behalf of
the respondent did not confer upon the latter a status which now renders
him immune from deportation on the charge stated in the warrant of
arrest.
The facts are fully set forth in our decision of August 30, 1954, and
no purpose would be served in repeating them here at length. Briefly,
the record relates to a native and citizen of Denmark, 33 years old,
male, who was deported on December 9, 1948, on the charge of no
immigration visa in violation of the Immigration Act of May 26, 1924,
and on the charge that within five years after entry he had knowingly
and for gain assisted an alien to enter the United States unlawfully in
violation of the act of February 5, 1917. Under existing law, the act
of March 4, 1929, as amended (8 U.S.C. 180) the respondent was because
of his deportation mandatorily inadmissible to the United States until
after the expiration of one year from the date of departation, and could
reenter thereafter only if granted permission to reapply for admission.
In order to eliminate this compulsory waiting period of one year (until
December 9, 1949) before permission to reapply could be granted, there
was enacted on October 26, 1949, on his behalf Private Law 345 (81st
Congress, Chapter 748 -- 1st Session, H.R. 3718) which reads as
follows:
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That in the
administration of the immigration and naturalization aws, G S J ,
a native of Denmark, shall be admitted into the United States upon
application made notwithstanding the provisions of the Act of
March 4, 1929, relating to entry after deportation (8 U.S.C.
180).
Subsequently, on December 6, 1949, the respondent was admitted at the
port of New York for permanent residence upon presentation of a nonquota
immigration visa. Thereafter the Immigration and Nationality Act of
1952 became effective on December 24, 1952, and a warrant of arrest in
deportation proceedings was issued under section 241(a)(13) of the act.
This expulsion proceeding was undertaken in view of a change in the
prior law enacted into the present law, making deportable any alien who
prior to entry assisted another alien to enter the United States in
violation of law. The distinction between the prior law and the present
law is fully delineated in our decision of August 30, 1954, and there is
fully set forth the arguments as to the retrospective effect of the
provisions of section 241(a)(13).
It has been suggested that the enactment of Private Law 345 on
October 26, 1949, conferred on the respondent a status which now renders
him immune from deportation upon the present warrant charge. In this
connection it is well perhaps to study fully the private law which has
been set out at length above. All that the private law purported to do
was to render it unnecessary for one respondent to wait for a year
before being eligible to receive permission to reapply for admission
into the United States after deportation as provided by the act of March
4, 1929 (8 U.S.C. 180). No reference was made to excusing or waiving
any possible ground of exclusion or expulsion arising as a result of his
conviction on June 5, 1946, in the District Court of the United States
at Galveston, Taxes, of conspiracy to unlawfully aid and assist alien
stowaways to enter the United States. It may have been thought perhaps
that no action was necessary because under then existing law, section
19(b)(1) of the Immigration Act of 1917, as amended (8 U.S.C. 155(b)(1),
1940 edition), such conduct constituted a ground for deportation only if
it occurred within five years after entry. Under the Immigration and
Nationality Act of 1952, this conduct was made a ground of deportability
if it occurred prior to, at time of entry, or any time within five years
after entry. The new act, therefore, created a ground of deportation
which was not in existence at the time of the respondent's reentry for
permanent admission on December 6, 1949. However, it is clear that
Congress by virtue of its plenary power over aliens might deport them
from this country at any time, for any reason, even on grounds
non-existent at the time of their entry. /1/ Private Law 345 did not
purport to confer any status upon the respondent rendering him immune
from deportation on the charge of unlawfully assisting an alien;
rather, a reading of the provisions of that law merely indicate that it
conferred an expedited form of permission to reapply for admission after
deportation and nothing more. While it may be that the facts regarding
the respondent's activities in assisting other aliens to enter the
United States illegally were before Congress when considering the bill,
those facts were merely a circumstance to be considered with other
factors in determining whether legislative assistance should be granted
him, and nowhere does there appear any language in the bill which would
immunize him against deportation because of his conduct in assisting
aliens to enter the United States illegally.
However, assuming, without conceding, that the respondent acquired a
status under the private law enacted in his behalf, there is still to be
considered whether such status was preserved by the savings clause,
section 405(a) of the Immigration and Nationality Act. This section
provides in pertinent part as follows:
Nothing contained in this Act, unless otherwise specifically
provided therein, shall be construed to affect * * * any status,
condition, right in process of acquisition, act, thing, liability,
obligation, or matter, civil or criminal, done or existing, at the
time this Act shall take effect; but as to all such prosecutions,
suits, actions, proceedings, statutes, conditions, rights, acts,
things, liabilities, obligations, or matters the statutes or parts
of statutes repealed by this Act are, unless otherwise
specifically provided therein, hereby continued in force and
effect. Emphasis supplied.
The savings clause regarding any status or condition is inapplicable
where there is an otherwise specific provision. It can readily be
perceived that section 241(a)(13) of the Immigration and Nationality Act
specifically provides a change in the prior provision under section
19(b)(1) of the Immigration Act of 1917, as amended, 8 U.S.C. 155(b)(
1), in that it adds within the deportable groups specified therein
conduct occurring prior to an entry as contrasted with conduct occurring
subsequent to an entry as provided by the prior law. Accordingly, since
it has been specifically otherwise provided as set out in the savings
clause, whatever condition or status this subject alien may have had is
excluded from the benefits of the savings clause; this conclusion is
also strengthened by reference to section 241(d) which makes the
provisions of the section applicable to all aliens belonging to any of
the classes enumerated in subsection (a) notwithstanding (1) that any
such alien who entered the United States prior to the date of the
enactment of the act, or (2) that the facts, by reason of which any such
alien belongs to any of the classes enumerated in subsection (a)
occurred prior to the date of the enactment of the act.
Other instances of the non-application of the savings clause may be
furnished by way of illustration. Thus, a pardon conditioned upon good
behavior and conduct granted in 1945 by the Governor of Ohio and
effective to prevent deportation under section 19(a) of the Immigration
Act of 1917 was ineffective under the Immigration and Nationality Act of
1952 because not full and unconditional as required by section 241( b)
of the latter act. /2/ Similarly, a stowaway not amenable to
deportation because proceedings were not instituted within five years
after entry as required under the Immigration Act of 1917 was deportable
under section 241(a)(1) of the Immigration and Nationality Act because
of the omission of the statute of limitations in section 241(a)(1) of
the latter act. /3/ An alien not deportable as a narcotic violator
under the Act of February 18, 1931, as amended (8 U.S.C. 156( a)),
because within the exception in that act relating to addicts was
adjudged deportable under section 241(a)(11) of the Immigration and
Nationality Act because the latter act omitted the exception as to
addicts. /4/
These considerations lead to the conclusion that the respondent
derived no status rendering him immune from deportation upon the
enactment of Private Law 345 enacted on his behalf on October 26, 1949,
and that even assuming that he did acquire a status it was not within
the savings clause of the Immigration and Nationality Act. The defense
of double jeopardy is not available in deportation proceedings. /5/ The
private law enacted on behalf of the respondent merely expedited the
time within which he could reapply for admission into the United States
and conferred no other rights, privileges or immunities. There is no
doubt that a private bill could be enacted on behalf of the respondent
so worded as to render him immune from disabilities arising in exclusion
or expulsion proceedings as a result of his conduct which resulted in
his conviction on June 5, 1946, in the District Court of the United
States at Galveston, Texas, on a charge of unlawfully aiding and
assisting alien stowaways to enter the United States. It is concluded
that no change should be made in the outstanding order of this Board.
Order: It is ordered that pursuant to the request of the
Commissioner, Immigration and Naturalization Service, and under the
authority of Title 8, Code of Federal Regulations, section 6.1(h)(1)(
iii), the decision of the Board be certified to the Attorney General for
review.
(1) Marcello v. Ahrens, 212 F.(2d) 830, 831, 836 (C.A. 5, 1954).
(2) Matter of C , E-076976, 5, I. & N. Dec. 630, affirmed United
States ex rel. Carson (Corasaniti) v. Kershner (E.D. Ohio, April 1954,
Civ. No. 30800).
(3) Idem; Matter of A , E-081282, Int. Dec. No. 636.
(4) Unreported Matter of F S , 0900-56851 (November 9, 1954).
(5) Bridges v. United States, 199 F.(2d) 811, 929, reversed on other
grounds 346 U.S. 209.
Order: The decision and order of the Board of Immigration Appeals in
this case, dated August 30, 1954, are hereby reversed, and it is ordered
that appropriate action be taken to terminate the proceedings herein.
The respondent in this case departed the United States on December 9,
1948, thus executing an outstanding warrant of deportation against him,
based on the charge that he aided aliens to enter the United States
unlawfully. Congress, with full knowledge of these facts and contrary
to the recommendations of this Department, authorized his reentry to the
United States by means of private legislation, notwithstanding the
provisions of the Act of March 4, 1929, relating to permission to
reapply for admission after deportation.
There is strong evidence in the legislative history of the private
legislation to establish that the Congress intended thereby to permit
the respondent to return to the United States permanently and thus to
gain residence which would enable him to obtain citizenship as the
husband of an American citizen. Where it is thus established that the
Congress intended by special legislation, which antedated the
Immigration and Nationality Act of 1952, to bestow status which permits
the acquisition of rights, such "status' and rights "in process of
acquisition' are preserved by the savings provisions of section 405(a)
of the 1952 act (United States v. Menasche, 348 U.S. 528).
Suspension of deportation -- Section 244(a)(5) of Immigration and Nationality Act -- Eligibility may be established where a deportation charge under the old law has been carried over into the 1952 act.
An alien who has been found deportable under a prior law may establish eligibility for suspension of deportation under section 244( a)(5) of the Immigration and Nationality Act where such ground of deportation under the prior law has been carried over into the 1952 act. It is not necessary to reopen the proceedings to lodge the equivalent charge under the Immigration and Nationlity Act.
CHARGE:
Warrant: Act of 1918 -- Member of Communist Party of the United
States after entry.
Discussion: 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 suspension of deportation on the ground that
he is statutorily ineligible. The record clearly establishes that the
respondent, a 62-year-old divorced male, a native of Czechoslovakia and
a permanent resident of the United States since 1909, was a member of
the Communist Party or a predecessor organization from about 1924 until
1937. We find that charge set forth is clearly sustained.
Application for suspension of deportation was received by the Service
on February 23, 1954. Relief is sought under section 244(a)(5) of the
Immigration and Nationality Act. The special inquiry officer found
respondent statutorily ineligible for such relief because section
244(a)(5) sets forth certain violations of the Immigration and
Nationality Act for which suspension of deportation is available,
whereas respondent has not been specifically charged with any violation
of the Immigration and Nationality Act, but has been found deportable
under the Act of 1918, as amended. (Presumably this is so because the
warrant of arrest was issued prior to the enactment of the Immigration
and Nationality Act.) However, the ground on which respondent was found
deportable was incorporated into the Immigration and Nationality Act and
the respondent is clearly deportable under section 241(a)(6)(C) of the
act as one who after entry has been a member of the Communist Party or a
predecessor organization.
Counsel concedes that if the finding of membership is correct, the
respondent is subject to deportation under the provisions of section
241(a)(6)(C). The fact admits of no argument. The suspension of
deportation statute is a remedial one. To require a reopening of
proceedings in order that a charge be lodged under the Immigration and
Nationality Act would be to place form above substance and create
unnecessary administrative complexity. We do not believe the law
requires this. We, therefore, find the alien is statutorily eligible
for suspension of deportation under section 244(a)(5) of the Immigration
and Nationality Act although his deportation has been ordered under the
Act of 1918, as amended. The case will therefore be returned to the
special inquiry officer so that he may make a determination upon the
merits of the application for suspension of deportation.
Order: It is ordered that the appeal as to deportability be
dismissed and that the case be returned to the special inquiry officer
for a determination upon the merits of the respondent's application for
suspension of deportation, and that the special inquiry officer be
empowered to reopen the hearing if he finds it necessary to do so to
make a proper determination upon the merits of the application for
suspension of deportation.
Crime involving moral turpitude -- Forgery of narcotic prescription -- Section 11715 of the Health and Safety Code of California.
Forgery of a narcotic prescription in violation of section 11715 of the Health and Safety Code of California is a crime involving moral turpitude for the purposes of section 19 of the Immigration Act of 1917, as amended.
CHARGE:
Warrant: Act of 1917 -- Sentenced more than once for crimes, to wit:
Attempted burglary, 2d degree, and forgery of narcotic prescription.
Discussion: This case is before us on appeal from a decision of the
hearing officer finding the respondent deportable and directing
deportation on the charge stated in the warrant of arrest.
The respondent is a 45-year-old divorced male, a native and citizen
of Canada. He last entered the United States at Port Huron, Michigan on
May 7, 1923, and was admitted for permanent residence.
The record shows that the respondent was convicted on July 30, 1948,
in California for violation of section 459 of the California Penal Code
-- attempted burglary of the second degree, committed on or about June
6, 1948. For this offense he was sentenced on September 3, 1948, to
imprisonment in the state prison for the term prescribed by law. The
term prescribed by law for such crime is from zero to seven and one-half
years.
The record also shows that the respondent was convicted on December
27, 1943, on his plea of guilty to count one of a four count
information, count one alleging that he committed a crime in violation
of section 11715, California Health and Safety Code, a felony, in that
on or about July 23, 1943, he did willfully, unlawfully, and feloniously
forge and alter a prescription for a narcotic, to wit: morphine. For
this offense, the respondent was sentenced to imprisonment in the
California State Prison for the term prescribed by law on February 7,
1944. Such term was from zero to six years. There is included in the
court record relating to this conviction a statement under 1199-a P.C.
furnished the adult authority pursuant to that code section and to aid
in determining the length of confinement and hearing on application for
parole.
This statement contains spaces for the signatures of the trial judge
and the district attorney, but is signed only by a deputy district
attorney for the district attorney. This statement reads in pertinent
part as follows:
This defendant stole a pad of narcotic prescription blanks from
the office of Dr. S M at 4413 W. Adams Street, Los Angeles, and
thereafter began to obtain morphine sulphate. Such use of
aforesaid prescription blanks constitutes the basis for the four
counts of the information.
Count one charged a transaction on the 23d day of July 1943,
wherein this defendant forged the signature of Dr. M and obtained
56 half-grain morphine sulphate tablets, representing himself to
the druggist to be the person named as patient in the blank.
Defendant had used a fictitious name and a fictitious address as
patient.
In a decision dated July 18, 1951, remanding the case to the field
for further hearing, the Assistant Commissioner stated that the question
as to whether a violation of the State Narcotic Act is an offense
involving moral turpitude is a matter that is not entirely settled. The
Assistant Commissioner further stated that leaving aside the question as
to whether the narcotic law of California is a criminal statute rather
than a licensing or regulatory statute, an intent to defraud is not an
essential element of the forgery of the narcotic prescription under
section 11715 of the Health and Safety Code of California and it cannot
therefore be concluded that the offense committed by the respondent was
one involving moral turpitude. The Assistant Commissioner pointed out
that in People v. Beesly, 119 Calif. A. 82, 6 P.(2d) 114, 970 (December
9, 1931), the court held that whereas the General Forgery Law under the
Penal Code of California requires an intent to defraud, forgery under
the narcotic law does not require an intent to defraud as an element of
the crime.
Section 11715 of the Health and Safety Code of California under which
the respondent was convicted for forgery of a narcotic prescription does
not contain the words "with intent to defraud' and reads as follows:
Every person who forges or alters a prescription, or who issues
a prescription bearing a forged or fictitious signature for any
narcotic or who obtains any narcotic by any forged, fictitious or
altered prescription, or who has in possession any narcotic
secured by such forged, fictitious or altered prescription, shall
for the first offense be punished by imprisonment in the county
jail for not less than six months nor more than one year, or in
the State prison for not more than six years, and for each
subsequent offense shall be imprisoned in the State prison for not
more than ten years.
In our opinion, forgery of a narcotic prescription in violation of
section 11715 of the Health and Safety Code is a crime for the purposes
of section 19 of the Immigation Act of 1917 providing it involves moral
turpitude. Our position is supported by the decision in Meyer v. Board
of Medical Examiners, 206 P.(2d) 1085 (1949), which involved a physician
who had been convicted of the unlawful sale of a narcotic in violation
of another section of the Health and Safety Code of California (section
11164). In the Meyer case the court referred to the proceeding as a
criminal proceeding and to the violation as a criminal dereliction and
held that the conviction was within the meaning of a California statute
where a conviction of an offense involving moral turpitude was required.
The defendant in People v. Beesly, (supra), charged with forgery of a
narcotic prescription, filed a demurrer alleging that the information
was defective on the ground that it did not, amoung other things, allege
an intent to defraud. The court in commenting on this contention
stated: "The point that the information fails to charge an intent to
defraud is without merit, as the crime defined in section 7 of the
Poison Act does not include an intent to defraud as one of the elements
of the corpus delicti. The cases cited, involving the charge of forgery
under section 470 of the Penal Code are, therefore, not in point, since
in forgery the intent to defraud is an element of the crime.'
Section 470 of the California Penal Code dealing with general
forgeries, titled "Forgery of wills, conveyances, etc.' begins with the
words "Every person who, with intent to defraud, signs the name of
another person * * *.' Since section 7 of the Poison Act did not contain
the words "with intent to defraud' we can understand the decision of the
court in the Beesly case that the information was not defective although
it did not charge an intent to defraud.
Unlike the general forgery statute, the forgery of a narcotic
prescription does not involve fraud against any particular individual.
This very point was raised in People v. Brown, 113 Calif. A. 492, 298 P.
503 (April 17, 1931), where the defendant claimed that since the
information alleging possession of a narcotic and forgery of a narcotic
prescription did not allege an intent to defraud, it failed to allege
any offense. The court in People v. Brown, (supra), stated:
The argument of appellant proceeds upon the assumption that
there is no one to be defrauded by the prescription, and that in
the absence of intent to defraud, there can be no forgery. The
assumption, however, is false. * * * We have been so prone to
think of forgery as defined and announced in our Penal Code
(section 470 et seq.) as being an act designed to injure a
particular individual or set of individuals that it is not
surprising that the appellant has indulged the fallacious
assumption. However, we find pertinent language in volume 2,
Bishop's New Criminal Law, Section 531, as follows: "If forgery
when prejudicial to an individual is indictable, a fortiori, it
may be when tending to the harm of many or the public. Indeed,
this is the kind of common law forgery mostly spoken of in the
olden books.' * * * We entertain no doubt whatever that a
prescription for a poisonous or narcotic drug is the subject of
forgery. The intent to defraud is unmistakably made manifest by
the act of obtaining the narcotic by means of the false writing.
* * *
It is apparent from the opinion of the court in People v. Brown,
(supra), that a conviction for forgery of a narcotic prescription in
California requires a willful act. Forgery generally includes acts of
deception deliberately practiced with a view of gaining a wrong or
unfair advantage. The Attorney General has held forgery to be a crime
involving moral turpitude (38 Op.Atty.Gen. 128, 130). In Matter of A ,
A-4789121, 5, I. & N. Dec. 52 (January 8, 1953), we stated that where
fraud or forgery is involved, it is clear that a finding of moral
turpitude is required. It is our conclusion that the conviction of the
respondent on December 23, 1943, for violation of section 11715 of the
Health and Safety Code of California was for a crime involving moral
turpitude. Since he has been sentenced more than once to imprisonment
for terms of one year or more because of conviction in this country of
crime involving moral turpitude, committed after entry, we find that he
is subject to deportation on the charge stated in the warrant of arrest.
The respondent, a narcotic addict, has been convicted on other
occasions for narcotic violations in addition to the two convictions
mentioned above. On April 1, 1938, in California on his plea of guilty,
he was convicted of forgery and uttering of a narcotic prescription and
was sentenced to imprisonment in Los Angeles County Jail for one year.
On April 7, 1938, probation which had been granted him on August 13,
1934, in connection with a conviction for a narcotic law violation,
possession of heroin, was revoked and he was sentenced to be punished by
imprisonment in the state prison of California for the term prescribed
by law, which sentence was ordered to run concurrently with the county
jail sentence entered on April 1, 1938. On February 20, 1952, he was
convicted for unlawfully securing narcotics by fraud, deceit,
misrepresentation and subterfuge in violation of section 11170 of the
Health and Safety Code of California and was granted probation for five
years with the stipulation that within 30 days he must cause himself to
be committed to a state or federal hospital for treatment of narcotic
addition.
Since the respondent is deportable as found by the special inquiry
officer, the appeal will be dismissed.
Order: It is ordered that the appeal be and the same is hereby
dismissed.
Marriage -- Section 101(a)(35) of Immigration and Nationality Act -- Validity of "absentee' marriage in Japan.
A marriage registered in accordance with Article 739 of the Japanese
Civil Code on August 1, 1953, when the husband was in the United States
and the wife in Japan, which was preceded by a civil or religious
Japanese or Christian ceremony and cohabitation is regarded as a valid
and subsisting marriage and does not fall within the proscription of
section 101(a)(35) of the Immigration and Nationality Act.
Discussion: The matter comes forward on appeal from the order of the
District Director, Los Angeles District, dated May 24, 1954, revoking
the prior approval on November 20, 1953, of the visa petition according
the beneficiary nonquota classification under section 101(a)( 27)(A) of
the Immigration and Nationality Act as the wife of an American citizen.
The revocation is predicated on a memorandum from the American Consulate
at Nagoya, Japan, to the effect that the marriage between the petitioner
and the beneficiary was of an absentee nature and hence not valid for
immigration purposes.
Section 101(a)(35) of the Immigration and Nationality Act provides:
The term "spouse,' "wife,' or "husband' do not include a
spouse, wife, or husband by reason of any marriage ceremony where
the contracting parties thereto are not physically present in the
presence of each other, unless the marriage shall have been
consummated.
The record indicated that the parties hereto were present together in
Japan and underwent a civil marriage or "sake' ceremony according to
Japanese custom on May 28, 1948. They lived together as husband and
wife until the departure of the husband for the United States on June 4,
1948. The marriage was registered in accordance with Article 739 of the
Japanese Civil Code on August 1, 1953, the husband then being in the
United States.
It has previously been held that the registration of a marriage in
Japan under this section of the law constitutes a valid marriage for
immigration purposes when it has been preceded by a Japanese or
Christian ceremony or where the parties had previously lived together as
husband and wife prior to the notification and registration of the
marriage pursuant to Article 739 of the Japanese Civil Code. /1/ Under
Article 739 of the Japanese Civil Code, the notification and
registration of marriage constitute a legal marriage in Japan. It
appears that such a marriage may be registered by either party to the
marriage. In Matter of R , VP 16-603, 4, I. & N. Dec. 650, information
contained in an Operations Memorandum dated November 8, 1950, from the
Supervising Consul General, Tokyo, Japan, is to the effect that there
was no objection to assisting a couple upon the notarized request of the
American citizen spouse in registering their marriage, which
registration, it is understood, may be accomplished under Japanese law
even though one party to the marriage contract be abroad.
Previously, this type of marriage under Japanese law, which was
characterized as an "absentee' marriage, was regarded as not falling
within the proscription of a proxy marriage. The elements of a civil or
religious Japanese or Christian ceremony, cohabition and notification
and registration were considered factors peculiar to Japanese marriages
and were regarded as valid marriages under the immigration laws. The
provisions of section 101(a)(35) of the Immigration and Nationality Act
merely codifies and defines the term spouse, wife, or husband so as not
to include parties to a proxy marriage unless such marriage shall have
been subsequently consummated. In the instant case, the parties were
physically present in the presence of each other when they underwent a
"sake' or civil marriage ceremony in Japan, and the absentee
registration constituted compliance with a formal requirement of
Japanese law. Under the circumstances, it appears that the marriage
does not fall within the proscription of section 101(a)(35) and should
be regarded as a valid and subsisting marriage.
Order: It is ordered that the visa petition be approved for nonquota
status on behalf of the beneficiary.
(1) Matter of S , VP 04-92, 4, I. & N. Dec. 622; Matter of R , VP
16-603, 4, I. & N. Dec. 650; Matter of L , VP 5-7802, 4, I. & N. Dec.
699; Matter of S , VP 07-852 (B.I.A., Dec. 1, 1952 and July 15, 1953).
Entry without inspection -- Section 241(a)(2) of Immigration and Nationality Act.
An alien's false claim to birth in the United States at the time of his entry is tantamount to a claim of citizenship in this country and he thereby avoids inspection. Such an alien is deportable under section 241(a)(2) of the Immigration and Nationality Act as an alien who entered without inspection.
CHARGES:
Warrant: Act of 1952 -- Entered without inspection, by false and misleading statements.
Act of 1952 -- Excludable at entry -- convicted of crimes prior to entry; larceny, receiving stolen goods (act of 1917).
Act of 1952 -- Excludable at entry -- no visa, reentry permit, or
border-crossing card (act of 1940).
Discussion: We have directed that this case be certified to us for
the entry of the final order. The special inquiry officer at the time
of entering his order terminating the proceedings on June 8, 1954,
advised the alien of the procedures and time allowed him to submit
further pleadings to this Board. Inasmuch as no brief or other pleading
has been submitted, we conclude that the respondent desires us to base
our decision on the present record.
The record relates to a 33-year-old single male, a native and citizen
of Czechoslovakia, who last entered the United States at Niagara Falls,
New York, by truck on November 26, 1949, at which time he did not
possess nor present a valid immigrant visa, reentry permit or a resident
alien's border-crossing identification card. The record shows that the
respondent was originally admitted to the United States at New York, New
York, on August 14, 1921, when ten months of age. He was inspected and
admitted at that time for permanent residence. His only absence from
the United States was for several hours on November 26, 1949, while
driving a truck as a member of an advertising caravan. This departure
and reentry into the United States was apparently not discovered until
the alien filed papers some years later in connection with securing
citizenship in the United States. At the time of the November 1949
departure and reentry, the respondent was questioned by immigration
inspectors who requested information as to his place of residence and
birth. The respondent stated in reply to these questions that he was a
resident of Pittsburgh, Pennsylvania, and that that was also the place
of his birth. Though the record is not too clear in this respect, it
would appear that the respondent had given the same answers to the
inspectors at the time of his departure and reentry.
The warrant for the arrest of the respondent contains the three
charges as shown above. We concur with the special inquiry officer's
findings that the respondent is not now subject to deportation on the
second and third charges stated in the warrant of arrest.
The special inquiry officer entered a finding that the respondent was
not deportable on the first charge stated in the warrant of arrest.
This charge relates to the alien's entry in November 1949 by means of
false and misleading statements, thereby entering the United States
without inspection in violation of section 241(a)(2) of the Immigration
and Nationality Act. The special inquiry officer gives as his reason
for his finding in this respect that the laxity of the immigrant
inspector in not questioning more exhaustively the alien as to his
citizenship did not, in fact, make this an entry without inspection. We
cannot concur in this finding. The respondent acknowledged under oath
that the inspector asked him his place of residence and birth and that
he gave a false reply as to his place of birth by stating that he was
born in Pittsburgh, Pennsylvania, whereas he was fully aware that he was
born in Czechoslovakia. The respondent in his affidavit of February 25,
1953, states that he was born in Czechoslovakia and acknowledges the
falsity of his statements to the immigration inspector in stating that
he was born in the United States. Under these circumstances, we feel
that his claim to birth in the United States is tantamount to a claim of
citizenship in this country and that by making such false claim he
avoided inspection. We must, therefore, hold that the special inquiry
officer's finding in this respect cannot be sustained and that the
respondent is subject to deportation on the first charge contained in
the warrant of arrest.
We are not unaware of the strong sympathetic appeal presented in this
case; however, we are without authority to terminate the proceedings
where there is a statutory basis for deportation which is supported by
the evidence of record.
In view of the sympathetic features of the case, we have given
careful consideration to all possible remedies. As indicated above, we
do not have statutory authority to dismiss the charge and the maximum
descretionary relief which we may authorize is limited to voluntary
departure, as the alien does not have the requisite period of unbroken
residence for consideration of suspension of deportation. We will,
therefore, authorize voluntary departure.
Order: It is ordered that the outstanding order of deportation be
withdrawn and 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, in any event not less than 60 days,
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.
Marriage -- Mexican divorce obtained by non-residents of the United States valid -- Nonquota status under section 101(a)(27)(A) of Immigration and Nationality Act.
A Mexican divorce decree which does not involve residents of the
United States but involves a resident of Mexico and a citizen and
resident of Lebanon is held to be valid for immigration purposes based
on the doctrine of comity as between nations, there being no showing
that the divorce decree was not valid in Mexico or did violence to the
public policy or public morals of the State of Arizona where the
subsequent marriage of the resident of Mexico and a United States
citizen took place. Therefore, the beneficiary of a visa petition who
obtained such a divorce and subsequently married a citizen of the United
States is entitled to nonquota status under section 101(a)(27)( A) of
the Immigration and Nationality Act.
Discussion: The matter comes forward on appeal from the order of the
District Director, El Paso, Texas, dated December 8, 1953, denying the
visa petition on the ground that the petitioner has failed to establish
a valid marriage existing between herself and the beneficiary.
The petitioner, a naturalized citizen of the United States, seeks
nonquota status on behalf of the beneficiary whom she married at
Nogales, Arizona, on September 4, 1953. The petitioner was previously
married and her prior marriage was terminated by death of her first
husband. The beneficiary was also previously married and the question
presented is whether there has been a valid termination of his prior
marriage.
The beneficiary is a native and citizen of Lebanon and has resided in
Nogales, Sonora, Mexico, since May 20, 1952. He was first married in
1925 at Beirut, Lebanon, to one Z S . He secured a Mexican divorce from
his first wife in Juarez, Chihuahua, Mexico, on August 3, 1953. At the
time he secured a divorce the beneficiary resided in Nogales, Sonora,
Mexico, while his first wife resided in Lebanon. There has been
submitted a consent signed by the wife on July 14, 1953, at Beirut,
Lebanon, consenting to representation by an attorney in fact in the
divorce proceeding instituted by her husband in the Civil Court of
Juarez, Chihuahua, Mexico. The husband was likewise represented by a
special attorney in fact.
It is to be noted in the instant case the Mexican divorce decree does
not involve residents or domiciliaries of the United States, but
involves a resident of Mexico and a citizen and resident of Lebanon. In
this regard the situation is different from that presented by the
ordinary Mexican mail order divorce decree involving residents of the
United States which generally have been regarded with disfavor. It has
been held that the termination of a prior marriage by a Mexican divorce
procured by a resident of Eire against a nonresident of Mexico, where
the evidence failed to show jurisdiction there as to either party or as
to their matrimonial domicile, may be conceded under rules of comity if
the foreign judgment of divorce was valid where granted; that the rules
of comity would not be departed from except in certain cases for the
purpose of necessary protection of our citizens or in enforcing some
paramount rule of public policy; and there has been no avoidance of the
laws of any United States domicile. /1/
In construing the validity of a visa petition filed under section 9
of the Immigration Act of 1924 (the predecessor to section 205 of the
Immigration and Nationality Act) the Attorney General held that the
validity of divorces affecting cases arising thereunder shall hereafter
be determined in accordance with the prevailing law of the country in
which the subject was domiciled and physically present at the time the
divorce was obtained; and that no divorce obtained in absentia should
be valid for immigration purposes if such divorce was obtained while
either party thereto was domiciled or physically present in the United
States. /2/ The restriction on recognition of validity of divorces in
absentia obtained while either party was domiciled or physically present
in the United States was modified to permit recognition where the law of
the place of subsequent marriage recognized such in absentia divorces.
/3/
It is noted that the file contains a letter from the Attorney
General, Phoenix, Arizona, expressing the opinion that the Court of
Chihuahua had no jurisdiction to grant a divorce. Inasmuch as neither
party to the divorce was resident or domiciled in the State of Arizona,
the opinion would seem to be purely gratuitous. In cases involving
foreign divorces obtained by parties not domiciled in the United States,
the doctrine of comity as between nations controls. /4/ There is no
showing that this divorce was not valid in Mexico, or that it did
violence to the public policy or public morals of the State of Arizona
where the parties were subsequently married. The existence of a civil
ceremonial marriage in Arizona is in itself a strong presumption of the
validity of such marriage until judicially set aside.
It is accordingly concluded that there is no persuasive reason why
this Mexican divorce decree, dealing with a prior marriage performed in
Lebanon, granted to nonresidents of the United States should not be
regarded upon familiar principles of comity as constituting a valid
termination of the beneficiary's prior marriage.
Order: It is ordered that the petition be approved for nonquota
status on behalf of the beneficiary.
(1) Matter of McG , A-6308586, 2, I. & N. Dec. 883 (1947).
(2) Matter of O , A-6345409, 3, I. & N. Dec. 33 (Act. Atty. Gen.,
1949).
(3) Matter of P , 56324/762, 4, I. & N. Dec. 610 (1952).
(4) Petition of B , V-317053 (1945) cited in Matter of McG , (supra).
Preference quota status -- Section 203(a)(4) of Immigration and Nationality Act -- Adoption in Italy.
Affiliation in Italy is the equivalent of adoption. Where an
"Affiliation Decree of a Minor' is issued by an Italian court, such
minor may properly be regarded as the adopted son or daughter of the
petitioner and eligible for preference status under section 203(a)(4) of
the Immigration and Nationality Act.
Discussion: The petitioner, a citizen of the United States, seeks
nonquota or preference status under section 203(a)(4) of the Immigration
and Nationality Act on behalf of the beneficiary, who was described as
his affiliate daughter.
In support of the petition there has been submitted a copy of a
certificate entitled "Affiliation Decree of a Minor' issued by the Judge
of the Court of Sorrento, Italy, on February 7, 1953, authorizing the
petitioner and his wife to affiliate the minor, C V , daughter of G and
E B , and authorizing her to assume the surname of the petitioner. In
addition, there has been submitted a birth certificate showing the birth
of the beneficiary on August 2, 1937, and indicating that the
beneficiary was affiliated by Mr. and Mrs. A R .
Inquiry directed to the Foreign Law Section of the Library of
Congress indicates that except for minor differences relating to
possibility of bearing children, inheritance and power to terminate the
relationship, affiliation is the equivalent of adoption; that it
involves the receiving into the family unit of a person not related by
blood. The beneficiary, therefore, in the instant case may properly be
regarded as the adopted daughter of the petitioner and as such eligible
for preference status under section 203(a)(4) of the Immigration and
Nationality Act (Matter of R , VP-318004, 5, I. & N. Dec. 438). It is
apparent, however, that the beneficiary cannot be regarded as a child of
the petitioner since the term "child' is defined to include only a
legitimate child, a legitimated child, or stepchild. The petition will
be approved for fourth preference status.
Order: It is ordered that the petition be approved for preference
status under section 203(a)(4) of the Immigration and Nationality Act.
Subversive: Communist Party of the United States -- Evidence.
Government is held not to have sustained burden of proof in deportation proceedings on charge of past membership in the Communist Party where the respondent denied such membership at the hearing, the only evidence produced by the Service was a preliminary statement made by the respondent in English admitting Communist Party membership, which he repudiated at the hearing, and it is shown that respondent has a poor understanding of the English language and that the statement was not a verbatim one.
CHARGES:
Warrant: Act of 1918 -- After entry, member of Communist Party of the United States.
Lodged: Act of 1952 -- Convicted of crime prior to entry.
Discussion: This is an appeal from the order of the special inquiry
officer requiring respondent's deportation on the grounds stated above.
Respondent is a 62-year-old male, a native and citizen of Mexico,
who, with the exception of short visits to Mexico, has been a resident
of the United States since his admission for permanent residence in
1916. Deportation on the charge in the warrant of arrest is based
entirely upon admissions contained in a question -- and -- answer
statement made by the respondent on August 28, 1952, before two officers
of the Immigration Service. At his hearing, respondent denied his
answers constituted admissions of membership in the Communist Party and
he denied having been a member of the Communist Party at any time. We
believe that on this issue, the Government has failed to bear its burden
of proof of establishing membership in the Communist Party by evidence
that is reasonable, substantial and probative. The warrant charge will
not be sustained.
L F and B , Service investigators, testified that they had taken the
question -- and -- answer statement from respondent; that they spoke
Spanish and were competent to take the statement in Spanish, if that had
been necessary; and that it had been taken in English because that
seemed to be the easiest language for the respondent.
L F testified that he had not entered the respondent's exact answers
to the questions, but only the substance of the answers because of the
difficulty in taking the answer down as fast as it was given; that he
excluded matters which were in his opinion irrelevant; and that he may
have asked some questions and received some answers which he did not
include on the statement, although he can recall only one such question
and answer. He stated that if any explanation followed a categorical
answer, it was placed on the statement and that while he could not
recall any lengthy answers accompanying the categorical answers, it is
possible that the respondent may have entered into an explanation of
some sort which was not put on the record. L F gave an illustration of
one case in which he had omitted additional information volunteered by
the alien. This was in answer to a question concerning his last entry.
The respondent had discussed the reason why he went to Mexico and what
he had done there. L F had omitted this because that information was
irrelevant and because there was no place to put it on the form. He
stated "there may have been other instances of like nature in this part
of the form.'
B testified that the answers contained on the record were obtained in
the following manner. After a question was asked, there would be some
discussion which was not put on the record, and that as a result of the
discussions, respondent and L F would arrive at what the answer would be
and then it would be put down in that exact form. He testified that he
had read the statement to respondent and was sure he had understood it;
that he had the respondent initial each page and sign it; and English.
He stated that respondent English. He stated that respondent had not
stated he did not understand any of the questions and answers and had
not complained concerning the manner in which the answers had been
entered.
Pertinent extracts from the statement of August 28, 1952, follow.
The questions are put by L F . The answers are purportedly those of the
alien.
Q. When and where did you last enter the United States?
A. July 18, 1951, San Ysidro, Calif.
Q. The records of the Immigration and Naturalization Service
show that you joined the Communist Party of the United States on
January 20, 1937. Is that correct?
A. Yes.
Q. Do you recall who presented your application for Communist
Party membership?
A. I think that it was a man by the name of G .
Q. To whom did you pay Communist Party dues?
A. To N M . I did pay some dues to Mr. G .
Q. Do you remember what the Dues Stamps looked like?
A. They had a hammer and sickle on them.
Q. Did you have a Communist Party membership book?
A. Yes, but I don't remember what happened to it.
Q. When did you quit the Communist Party?
A. I quit in less than six months after I joined.
Q. What other organizations were you a member?
A. I did belong to the Alianza Espanol Americana (Alianza
Hispana Americana) for two or three years during the 1920's.
Q. At the time you were attending the Communist Party meetings
did you belong to any other organizations?
A. No Sir.
Q. What was discussed in the Communist Party meetings which you
attended?
A. Many different things. They talked a lot about Russia.
They said that they liked the way they did things in Russia. I
don't see how they knew -- they had never been there.
Q. What language was used during the meetings?
A. Spanish.
Q. Why did you get out of the Communist Party?
A. Because I do not believe in that stuff. I do not like it.
The respondent testified under oath at the hearing. He stated that
he spoke mainly Spanish and understood very little of the English
language. He stated that in 1937 he was unemployed and had six children
to support and was desperate for work. A person named G had invited him
to attend meetings of the Workers Alliance and informed him that the
object of the organization was to obtain work for people who were
unemployed and there was an indication he would be helped. G took him
to three or four meetings. At the third meeting G told him it was time
to make an application for membership. The respondent, however, had
become convinced by this time that he could not obtain employment
through the organization and did not make an application, and after
attending about one more meeting did not return. He stated that at each
meeting he had given $0.10 not as dues, but as his contribution toward
payment of the refreshments which had been served there. He stated he
had not been asked for money by anyone, but since he had seen people
paying $0.10 he formed the opinion that it was in payment for the
refreshments and had also contributed the $0.10 for this purpose. He
stated he had no recollection of signing any application; that he was
given no literature; and nothing occurred there which would indicate
that it was a Communist organization. He denied having ever received a
book or registration card to show membership in the Workers Alliance or
any other organization or that he had ever received any dues stamps or
any other indicia of membership.
In corroboration of his statement that he had a poor understanding of
English, respondent presented two persons with whom he has been employed
since 1942. Both testified in English and stated they did not speak
English with the respondent because he does not understand English well.
To corroborate his statement concerning his association with the
Workers Alliance, he introduced a witness who testified that he has
known respondent since 1926; that between 1936 and 1937 he had a
conversation with the respondent concerning the Workers Alliance; that
the respondent had informed him that he was going to get work through
the organization; and that subsequently, the respondent had informed
him that he had not joined the organization because he had found out it
was a communistic organization. None of the witnesses presented by
respondent had any knowledge that he had engaged in communistic
activities.
Respondent testified that B had helped him read the question -- and
-- answer statement before it had been signed; that he did not
understand all the questions and answers that were read before he signed
it, but that he did not tell this to the Service officers because he was
instructed by them to sign and informed there was nothing in it against
him. He explained his answer about payment of dues as the giving of a
contribution toward the payment of the refreshments served. The
respondent stated that the answer concerning the stamps which had a
picture of a hammer and "sickle' had been made although he had never
heard of the word "sickle' before and did not understand it. He
explained his answer as to whether he had a Communist Party membership
book as made in answer to a question which he did not understand well
and which he understood as asking him whether books had been distributed
in the place where he had gone. He stated books had been distributed,
but he himself had never received a book. He stated his answer that he
had quit in less than 6 months merely meant that he had quit attending
meetings after visiting three or four meetings.
It may thus be seen that there is presented a sharp conflict in the
evidence as to whether the respondent is capable of understanding
English and whether he admitted membership in the Communist Party. In
view of the evidence of record, we cannot consider the question -- and
-- answer statement as reflecting an admission of Communist Party
membership by the respondent. The fact that the statement is not a
verbatim one; the fact that matter the Service officer deemed
immaterial was or may have been excluded in recording the answers; and
the fact that it is apparently couched in the language suggested by the
Service officer to an individual who two witnesses have sworn has a poor
understanding of English, require us to regard this exhibit not as
reflecting admissions by respondent, but rather as a record of the
Service officer's impressions drawn from the respondent's answers.
Under oath, the respondent has denied that these impressions are
accurate reflections of the facts. He has made a sworn denial that he
admitted membership in the Communist Party or that he has ever been a
member of the Communist Party. The testimony of his witness to the
effect that in 1937 respondent stated that he would have nothing to do
with an organization that was reported to to communistic is some
corroboration of respondent's testimony. Grave doubt as to his ability
to understand English is raised by the testimony of people with whom he
is employed. In view of all these matters, we do not believe it can be
said that the Government has borne its burden of proof in this case.
We, therefore, find the warrant charge is not sustained.
We believe the lodged charge is sustained. The matter has been amply
dealt with by the special inquiry officer. The respondent was
inadmissible at the time of his last entry by reason of his conviction
for violation of section 499 of the Penal Code of California for larceny
of either water or electricity. This occurred in 1935. He has been a
resident of the United States since 1916. He has testified that he is
the father of seven children, all born in the United States; that the
one son who is a minor is being supported by him; that he is the owner
of real property in which he has an equity of about $11,000; that he is
steadily employed at a salary of $60 or $65 a week; and that he has
been a person of good moral character. He does not appear to have been
convicted since 1936, although it appears that he was arrested for
failure to provide in 1951, no disposition of the case being shown.
There is no evidence of Communist Party activity or sympathy. We
believe the respondent's case merits further consideration for relief
under section 212(c) of the Immigration and Nationality Act. We will
remand the case to the field for appropriate investigation so that we
may determine the advisability of granting such relief.
Order: It is ordered that the case be remanded to the Service for
appropriate investigation and such further action as they deem
necessary.
Fine -- Section 273 of Immigration and Nationality Act -- Not incurred where visa not require by reason of 8 C.F.R. 211.3.
Since 8 C.F.R. 211.3 provides that an immigrant visa is not required if a waiver in an individual case is granted, a penalty is not incurred under section 273 of the Immigration and Nationality Act for bringing an alien to whom such a waiver is granted. Section 273 of the act applies only to the bringing of aliens without a visa if a visa was required under the Immigration and Nationality Act or regulations issued thereunder.
BASIS FOR FINE:
Section 273, Immigration and Nationality Act (8 U.S.C. section 1323).
Discussion: This matter is before us by reason of an appeal from the
decision of the District Director of Immigration and Naturalization,
Miami, Florida, bearing date March 3, 1954, wherein fine in the amount
of $1,000 was imposed upon the Pan American World Airways, Inc., owners
or agents of the aforementioned plane, which plane arrived at Miami,
Fla., on August 30, 1953, from Havana, Cuba, for violation of section
273 of the Immigration and Nationality Act (8 U.S.C. 1323).
The specific violation complained of is bringing to the United States
from a place outside thereof the alien passenger E L S , who, upon
arrival, was found to be an immigrant not in possession of an unexpired
immigrant visa or permit to reenter the United States as required by
section 212(a)(20) of the Immigration and Nationality Act (8 U.S.C.
1182).
The evidence of record shows the subject passenger was born in East
Prussia, Germany, on April 2, 1931, and that she is a citizen of
Germany. She is employed as a dental technician. The record further
reveals that this person was lawfully admitted to the United States for
permanent residence at New York, New York, following arrival on the SS.
General Black on May 31, 1950. She was admitted as a quota immigrant
under and pursuant to the provisions of the Displaced Persons Act.
Thereafter, she applied for and obtained a declaration of intention in
Milwaukee, Wis., on October 18, 1951, and she was in possession of that
document on the occasion of her application for readmission to the
United States.
Following arrival she remained in this country until August 28, 1953,
when she departed for a vacation in Cuba on a plane of the Pan American
World Airways. She was accompanied by her husband. Apparently, she was
unaware of the requirements as to passport or permit to reenter the
United States or the necessity for having a consular immigrant visa as
provided in section 212(a) of the Immigration and Nationality Act
(supra). It would appear that there was some statement to the effect
that she was a citizen of the United States, whereas in truth and in
fact, she was married in Milwaukee, Wisconsin, on June 21, 1952, to a
naturalized citizen of the United States and she was, as hereinabove set
forth, a lawful resident of this country.
The evidence of record clearly establishes that the alien passenger
was a lawful resident of the United States who was applying for
readmission to this country after a temporary absence in Cuba.
The carrier, through its representative, states that this subject
passenger and her husband presented round trip transportation for travel
to Havana and return on August 28, 1953, to the carrier's traffic clerk
at the Miami International Airport, Miami, Fla. Upon interrogation as
to their nationality and country of birth, it is alleged that both
stated that they were native-born citizens.
It is the contention of the carrier that inasmuch as these passengers
were destined to Cuba and since Cuba, abiding by the Western Hemisphere
"good neighbor policy' does not require a passport or visa for United
States citizens, they were entirely dependent upon the word of the
passengers as to correct nationality. They have supported this
allegation by sworn statements of the interrogator and a notarized copy
of the passenger manifest prepared during the passengers' travel to
Cuba. On the occasion of return the subject alien was again questioned
by a representative at the airport in Havana, Cuba, at which time she
presented to the carrier's representative the return transportation,
Havana to Miami. It is asserted that she emphatically indicated
citizenship in the United States.
As hereinabove set forth, the carrier's principal contentions are
that they were misinformed as to the correct nationality of this
prospective passenger as indicated in the Cuban landing card and as
declared before Cuban authorities and that she concealed from the
representative of the transportation line that she was in possession of
evidence to the effect that she was admitted to this country as a
displaced person for permanent residence.
The record further shows that visa and passport requirements were
waived and she was readmitted to this country as one previously lawfully
admitted returning from a temporary absence abroad.
In 8 C.F.R., section 211.3, it is set forth that any alien * * * who
is otherwise admissible, who has been lawfully admitted to the United
States for permanent residence and who is applying for admission to the
United States after a temporary absence, is not required to present a
visa if in his particular case a waiver of the visa requirement is
granted by (a) the Assistant Commissioner, Inspections and Examinations
Division, either at the time of or after the application of the alien
for admission to the United States, or (b) the district director or the
officer in charge having administrative jurisdiction over the port at
which the alien applied for admission, at the time of alien's
application for admission and prior to submission of the case to a
special inquiry officer or (c) the special inquiry officer in
determining the case referred to him.
Since the regulation provides that a visa is not required if a waiver
in an individual case is granted, we must find a penalty under section
273 has not been incurred since that section applies only to the
bringing of aliens without a visa "if a visa was required under this Act
or regulations issued thereunder.'
Order: It is ordered that appeal from the decision of the District
Director of Immigration and Naturalization, Miami, Fla., bearing date
March 3, 1954, be and the same is hereby sustained.
EDITOR'S NOTE: Section 211.3 of Title 8, C.F.R., amended effective
January 3, 1955; published 19 F.R. 9173, December 24, 1954. See Matter
of PAA Plane Flight 204, F-0300-7263, Interim Decision No. 742 (B.I.A.,
1955).
Inadmissibility -- Section 212(a)(19) of Immigration and Nationality Act does not encompass procurement of documents illegally for another.
The bar to admissibility contained in section 212(a)(19) of the Immigration and Nationality Act applies only to the alien who seeks to procure, or has sought to procure, or has procured a visa or other documentation by fraud, or by willfully misrepresenting a material fact to gain his own admission into the United States. It does not apply to the alien who procured false documentation on behalf of another to facilitate the latter's admission into the United States.
EXCLUDABLE:
Section 212(a)(19), I. & N. Act -- Procuring documentation by fraud.
Discussion: Appeal from the order of the special inquiry officer
finding appellant inadmissible under section 212(a)(19), Immigration and
Nationality Act, on the ground that he had procured documentation for
entry into the United States by fraud. The documentation, consisting of
birth certificates, was not for the appellant, but for his two alien
children.
In 1947, the appellant, an alien, and his wife, a United States
citizen, fraudulently obtained the registration of their two
Mexican-born children in Texas. The birth certificates showed the birth
of the children in Texas. This was done for the purpose of securing
papers which the alien children could use to enter the United States.
The issue we will consider is whether the procurement of documentation
mentioned in section 212(a)(19) of the Immigration and Nationality Act
must be a procurement by one who himself seeks admission to the United
States or whether a person who procures documentation illegally for
another is within the reach of the section. /1/
The special inquiry officer reached the conclusion that the language
of section 212(a)(19) means that any procurement of a document whether
or not on behalf of the alien would make the procurer inadmissible. We
do not follow this view. A careful reading of this section makes it
clear to us that the bar to admission applies only to that alien who
caused the procurement to gain his own admission. Section 212(a)(19),
Immigration and Nationality Act, makes inadmissible to the United States
"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.' The
meaning of "Any alien,' the phrase which is the subject of each clause
in the section in question, is doubtful. Does it mean an alien who does
something on his own behalf or on behalf of another, or is it so limited
as to exclude from its terms an alien who does something in the interest
of another?
The meaning of a doubtful word may be learned by reference to its
association with other words in the statute (Neal v. Clark, 95 U.S.
704, 24 L.Ed. 586). The expression "Any alien' is associated in the
last clause with the phrase "seeks to enter the United States.' The last
clause, if the implied subject and verb were expressed, would read "Any
alien who seeks to enter the United States, by fraud, etc., is
inadmissible.' This clause would not bar the entry of an alien who by
fraud, etc., upon inspection, at the time of attempted entry, sought to
bring about the admission of one other than himself. For only the alien
who seeks to accomplish his own admission is barred by the clause in
question. We conclude that the phrase "Any alien' which is the subject
of all clauses of the section in question should be given the same
meaning in each clause in the absence of congressional intent to the
contrary; and the section should be held applicable only to the alien
whose machinations were on his own behalf.
Logic and the congressional history of the act appear to dictate our
conclusion. It logically follows that since there is no bar to the
admission of the alien, who at the time of applying for admission
attempted to obtain the unauthorized entry of another, there should be
no bar to the admission of the alien because his misdeeds were committed
prior to the application for admission.
As to congressional intent, while we find no clear cut directive that
the section is to be applied only to the alien who seeks to bring about
his own unauthorized entry, we find no evidence that Congress desired
the words "Any alien' be given a different meaning in the different
clauses of the section. We find congressional expression does reveal
some support for our view. The Conference Report which accompanied the
bill which became the Immigration and Nationality Act contains the
following language concerning the section in question:
It is also the opinion of the conferees that the sections of
the bill which provide for the exclusion of aliens who obtained
travel documents by fraud or by willfully misrepresenting a
material fact, should not serve to exclude or to deport certain
bona fide refugees who in fear of being forcibly repatriated to
their former homelands misrepresented their place of birth when
applying for a visa and such misrepresentation did not have as its
basis the desire to evade the quota provisions of the law or an
investigation in the place of their former residence. (Emphasis
added.) (H. Report 2096, 82d Cong., 2d sess., p. 128; see also H.
Report 1365, 82d Cong., 2d sess., p. 50.)
In brief, this quotation states that a person who made a
misrepresentation in his own behalf in fear of repatriation should not
be excluded. No mention is found of misrepresentations made on behalf
of an alien's wife or child. Only the person who made
misrepresentations on his own behalf is the subject of congressional
comment. Did Congress mean to permit a refugee to enter if he made the
misrepresentations on his own behalf, but made him inadmissible if the
misrepresentations were made to save his wife and child? We think not.
We think the absence of language in the illustration relating to a
person other than the applicant for admission should be interpreted as
some evidence that the framers of the law did not envision the use of
its provisions to exclude aliens whose misdeeds were on behalf of
others; there was, therefore, no reason to admonish the administrators
of the law as to the effect of a misrepresentation in such a case.
While it would appear that one who performed the forbidden acts to
assist another to enter is as undesirable as one whose misdeeds were on
his own behalf, the law is not worded in such a manner as to require the
exclusion of a person in the class first mentioned. We have no
authority to enlarge the class of inadmissible aliens. The appeal must
be sustained.
Order: It is ordered that the appeal be and the same is hereby
sustained.
(1) In this discussion we have, solely for the sake of argument,
assumed that procuring a birth certificate is procurement of "other
documentation.' We do not decide this question now. It is unnecessary
in view of the decision we make herein.
Nonimmigrant -- Section 101(a)(15)(B) of Immigration and Nationality Act -- Resident of foreign contiguous country who works daily in United States not eligible.
A resident of Canada who is paid by the Ford Motor Car Company of
Canada for work in the United States 8 hours a day, five days a week, is
not eligible for nonimmigrant status under section 101(a)(15)(B) of the
Immigration and Nationality Act. While such individual has a residence
in a foreign country which he has no intention of abandoning, he earns
his salary entirely while employed in the United States on work that is
of a continuing nature at a fixed and permanent place and he must,
therefore, be regarded as an immigrant.
Discussion: The case comes forward on appeal by the acting officer
in charge of the port at Detroit, Mich., from a decision dated April 22,
1954, of the special inquiry officer admitting the applicant as a
nonimmigrant visitor for business.
The applicant seeks admission as a nonimmigrant visitor for business
under section 101(a)(15)(B) of the Immigration and Nationality Act. He
is a native of England and a citizen of Canada, 58 years old, and has
resided in Canada with his wife and son since 1906 at Windsor, Ontario.
He has been employed by the Ford Motor Car Co. of Canada since 1916 and
for the past 8 or 9 years has been assigned to the work he is presently
doing. He testified that he is paid entirely by the Ford Motor Car Co.
of Canada but that he is engaged in work on the American side of the
bridge 5 days a week.
The applicant testified that he rides from Windsor, Ontario, to the
American side of the Ambassador Bridge, Detroit, Mich., where there are
trucks of different transportation companies carrying automobile parts
and materials destined to the Ford Motor Car Co. of Canada at Windsor.
He testified that he works on the American side of the bridge as a
receiving clerk and truck loader, loading two or three trucks a day. He
spends the entire 8 hours of the working day on the American side and at
the end of the day rides a company truck back to Windsor.
The applicant seeks to qualify as a nonimmigrant under section 101(
a)(15)(B) of the Immigration and Nationality Act which refers to 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 or temporarily for pleasure. Regulations of the Department of
State relating to temporary visitors are couched in the same phraseology
as the statute, and do not define the term "temporarily.' The term
"business' is defined in 22 C.F.R. 41.40(b) as referring to legitimate
activities of a commercial or professional character, but does not
include purely local employment or labor for hire. The question to be
determined is whether the applicant qualifies as a temporary visitor for
business.
In the case of a Canadian dancer who had no intention of making her
home in the United States but intended only to dance under a 6-month
contract, it was held that the applicant was not a bona fide visitor for
business, regardless of her intended temporary stay, inasmuch as the
work she would engage in was of a permanent rather than of a temporary
nature. /1/ In the case of a Canadian citizen employed by the Canadian
Pacific Railroad as a telegraph operator who was employed 3 days a week
in Canada and 2 days a week in the United States as relief telegraph
operator, it was held that the standard to be applied is not the
expectancy of the appellant's employment because of a union seniority
rule or the terminology used to describe his employment, but rather
whether the work to be performed by the appellant in the United States
is considered to be of a permanent duration at a fixed place of
employment. /2/
An alien was found to be a temporary visitor for business who, while
continuing to reside in Mexico, came across the border almost daily to
pick up scrap paper here for which he paid, and who returned on the same
day to Mexico where he sold the scrap paper, earning his living by such
transaction. /3/ This case laid down the following significant
considerations to be stressed: (1) there is a clear intent on the part
of the alien applicant to continue the foreign residence and not abandon
the existing domicile; (2) the principal place of business, and the
actual place of eventual accrual of profits, at least predominantly,
remains in the foreign country; (3) while the business activity itself
need not be temporary, and indeed, may be long continued, 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 existence of the two preceding considerations.
An alien helper on a moving van coming here from Canada merely to
help load and unload the van as an incident to delivery of household
goods was considered a nonimmigrant. /4/ It was pointed out that the
loading or unloading while in the United States was necessarily a
function of delivery and merely incidental to the primary purpose of the
delivery of household effects. The appellant was regarded as a duly
qualified employee of a common carrier engaged in international trade
and functioning as an operating crew member in the same manner as the
driver of a truck or the operating crews on trains or vessels crossing
from contiguous territory.
In the instant case it is noted that the applicant boards a truck in
Canada and rides to the United Staes where he is employed the entire
day. No part of his labor is done in Canada. The applicant therefore
earns his salary entirely while employed within the United States. His
work in the United States furnishes not only the principal but the only
source of his labor for his employer. He cannot be regarded as a truck
driver's helper since it is clear that he is not engaged in any
international trade similar to a common carrier but merely uses the
truck to come to the United States to perform his work as a receiving
clerk and loader. It is also to be noted that the work is of a
continuing nature at a fixed and permanent place and that the work which
he does in the United States provides the entire source of his income.
Under the circumstances present in the case, it is concluded that the
applicant does not qualify as a bona fide nonimmigrant and is not
entitled to the status of a temporary visitor for business. On the
contrary, he must be regarded as falling within the immigrant category
and, therefore, is inadmissible under section 212(a)(20) of the
Immigration and Nationality Act because not in possession of a valid
unexpired immigrant visa, reentry permit, border-crossing identification
card and a valid unexpired passport or other suitable travel document or
document of identity and nationality.
Order: It is ordered that the applicant be found inadmissible under
the provisions of section 212(a)(20) of the Immigration and Nationality
Act as an immigrant not in possession of the required documents.
(1) Matter of M , A-7728848, 2, I. & N. Dec. 240 (1945). This
decision cited the following cases in which it was held that the alien
was not a bona fide visitor for business: Matter of G , 56107/744, B.
I.A., Oct. 9, 1942, alien crossing daily for purpose of buying and
selling limes in the United States; Matter of C R , A-6022743 ((56158/
342) Dec. 16, 1944), alien crossing periodically into the United States
for the purpose of selling in this country magazines published and
purchased in Mexico; Matter of S , 56172/204 (Sept. 2, 1944), alien
desiring admission to accept permanent employment with an American
concern irrespective of assertion that he did not intend to reside
permanently.
(2) Matter of L , A-7367939, 3, I. & N. Dec. 857 (1950).
(3) Matter of G P , A-7828235, 4, I. & N. Dec. 217 (C.O., 1950).
This case cited the following instances in which it was held that the
alien was entitled to the status of a temporary visitor for business:
Matter of C , A-7182159 (C.O., 1949), alien bought green peppers in
Mexico and brought commodity to United States by truck, thereafter
making deliveries in United States, performing the incidental manual
labor as a sole operator since major portion of alien's time was not
spent in the United States nor his major source of income earned in the
United States; Matter of S , A-6877300 (C.O., 1948), sales
representative of Canadian advertising firm was admitted as temporary
visitor for business to solicit accounts of long-standing which would
continue indefinitely in the future; Matter of McC , A-7134304 (C.O.,
1949), Canadian proprietor of general trucking business who entered the
United States to unload fish which he had been doing for eight years
because relatively short part of work day was spent in the United
States; Matter of S , A-7118993 (C.O., 1949), business activity by
Canadian firm operating eleven trucks comprising the sale of Canadian
bought fish in New York with return loads of fruit in New York at twice
weekly intervals; Matter of N Y , A-6149811 (C.O., 1947), sales agent
for Mexican banana exporting firm who entered frequently for 60-day
periods to work with an American company to whom his firm sold bananas;
Matter of C , A-6811403 (B.I.A., Dec. 15, 1948, 3 I. & N. Dec. 407),
trucker and peddler who seasonably bought potatoes in Colorado for
resale in Mexico; Matter of A , A-7176002 (July 28, 1949, B.I.A.),
Mexican customs broker subleased part of an office in the United States
and spent several hours a day in the United States as convenience to
shippers in connection with exportation of United States goods to Mexico
but maintained principal place of business as licensed Mexican customs
broker in Mexico.
(4) Matter of R , A-7177141, 3, I. & N. Dec. 750 (1949).
Subversive -- Membership in Communist Party of the United States after entry -- Evidence -- Silence.
(1) Where it is found that the record as a whole presents a prima facie case of deportability, the unfavorable inference which follows from the respondent's privileged refusal to testify gives sufficient substance and probative value to the prima facie case to reach the conclusion that the respondent was a member of the Communist Party as charged.
(2) It is proper to draw an unfavorable inference from refusal to answer pertinent questions after a prima facie case of deportability has been established where such refusal is based upon a permissible claim of privilege as well as where privilege is not a factor. The prohibition against the drawing of an unfavorable inference from a claim of privilege arises in criminal proceedings, not in civil proceedings. The logical conclusion to be drawn from the silence of one who claims his answers may subject him to possible prosecution or punishment is that the testimony withheld would be adverse to the interests of the person claiming the privilege.
CHARGES:
Warrant: Act of October 16, 1918, as amended -- After entry, member of organization that advocates overthrow of United States Government by force and violence.
Act of October 16, 1918, as amended -- After entry, member of an organization that distributes written material advocating overthrow of the United States Government by force and violence.
Lodged: Act of October 16, 1918, as amended -- After entry, member
of the Communist Party of the United States.
Discussion: This is an appeal from an order of the special inquiry
officer finding respondent deportable on the lodged charge set forth
above. Respondent, a 50-year-old married female, a native of Russia and
last a citizen of Canada, has been a resident of the United States since
her admission for permanent residence in 1923. Alienage is conceded.
Her deportation is sought under sections 1 and 4 of the act of October
16, 1918, as amended. This law provides for the deportation of an alien
who is, or at any time after entry has been, a member of the Communist
Party of the United States. The special inquiry officer found
respondent had been a member of the Communist Party of the United States
at Los Angeles, Calif., from the fall of 1935 to the fall of 1940. The
sole issue presented by this appeal is whether the Service has borne the
burden of establishing this membership by reasonable, substantial, and
probative evidence.
To establish deportability, the Service relies upon the testimony of
L , V , and R , each admittedly a former Communist. No documentary
evidence of membership has been presented. The witnesses mentioned each
testified that respondent had been in attendance at closed meetings of
the Communist Party and that they considered her a Communist Party
member. No two witnesses testified for the same meeting. Each witness
testified that he had never seen respondent pay dues to the Communist
Party and that he had never seen respondent's membership card in the
Communist Party.
At the hearing, respondent did not testify. On advice of counsel she
refused to answer all questions on the ground that she was not required
to establish the Government's case; as to questions concerning
membership in the Communist Party, she, on advice of counsel, refused to
answer on the additional ground of her privilege against
self-incrimination; and as to questions concerning membership in the
Communist Party after 1938, on the further ground that such information
was not pertinent under the warrant charge which counsel believed
involved membership only between 1935 and 1938. /1/
Counsel urges that the Government witnesses must be held lacking in
credibility because of their character; the fact that in his opinion
their testimony is contradictory; and the fact that in his opinion
material portions of their testimony have been established to be false.
For all these reasons, he urges that the evidence of record is
insufficient to support a finding of deportability.
We believe that the Government carried its burden of establishing
deportability by reasonable, substantial, and probative evidence and
will dismiss the appeal.
All the evidence of record and contentions of counsel have been
carefully examined. We will not enter into a detailed analysis of these
matters. We find that the positive evidence produced by respondent's
witnesses and the results of the cross-examination of Service witnesses
have weakened the case presented by the Service, but that the record as
a whole presents a prima facie case of deportability on the lodged
charge. We believe an unfavorable inference follows from respondent's
privileged refusal to testify and that this inference gives such
substance and probative value to the prima facie case that we reach the
conclusion that the respondent was a member of the Communist Party as
charged.
Counsel argues that it is improper to draw an unfavorable inference
from the exercise of the privilege. He explains that in 1949 respondent
had made a sworn statement denying membership in the Communist Party;
that the Service, by proceeding with deportation proceedings, indicated
its disbelief of her statement; that he therefore advised respondent
that since the Service refused to believe her and would believe the
witnesses they would produce, she would be indicted for perjury and
would face prosecution in a "hectic hysterical time'; and that she
should therefore not testify.
The statement made in 1949 is not a part of the record and will not
be considered by us. The irrelevancy of the argument is clear. The
privilege is a personal one. Respondent's own motive in claiming the
privilege would be immaterial (Ex parte Irvine, 74 Fed. 954, 965 (C.C.,
S.D. Ohio)). Moreover, we cannot attribute counsel's motive to the
respondent and say that his motive was her motive. In fact, a claim of
privilege should not be honored upon the theory advanced by counsel.
Respondent's fear that an act she contemplated doing (testifying) might
involve her in a possible prosecution for perjury under Federal laws
could not form the proper basis for an invocation of the Fifth Amendment
because the protection applies only to past acts and not to future acts
(United States v. Nadler, 105 F.Supp. 918 (N.D. Calif.); United States
v. Kahriger, 345 U.S. 22, 32, 97 L.Ed. 754).
We believe it proper to draw the unfavorable inference from
respondent's privileged refusal to answer pertinent questions after a
prima facie case of deportability had been established. Silence where
privilege is not a factor has been held to be evidence of a most
persuasive character (United States ex rel. Bilokumsky v. Tod, 263 U.S.
149). We believe the same unfavorable inference should be drawn where
silence is based upon a permissible claim of privilege.
We do not believe our conclusion is violative of respondent's
constitutional right. The prohibition against the drawing of an
unfavorable inference from a claim of privilege arises in a criminal
proceeding. The protection of the Fifth Amendment provides in pertinent
part that "No person * * * shall be compelled in any criminal case to be
a witness against himself.' In order that the constitutional protection
may not be impaired indirectly, Federal courts are prohibited from
drawing an unfavorable inference from the claim of privilege in
connection with the "trial of all persons charged with the commission of
offenses against the United States' (18 U.S.C.A. 3481). No criminal
charge is pending against the respondent. There is no indication that
any is contemplated. The instant proceeding is civil in nature. It is
not a trial for offenses against the United States; it is a deportation
proceeding, one in which there is no right to remain silent, similar to
that which exists in criminal proceedings. On the contrary, there is a
duty upon the alien to speak (United States ex rel. Bilokumsky v. Tod,
(supra); see section 242(b), Immigration and Nationality Act). This is
not to say that the alien may not claim the privilege of silence when to
answer will link her with the commission of a Federal offense. This she
may do. We do not compel her to testify under such circumstances.
However, we will draw the logical inference from this failure to comply
with her duty. The drawing of an inference in this deportation
proceeding will not in any way make respondent more subject to
prosecution or diminish her rights in any criminal trial, if any, which
may arise. Protection in any possible criminal prosecution remains in
full vigor. The drawing of such inference from the silence and the
existence of a prima facie case may result in the loss of the right to
remain in the United States. This consequence is no more a denial of the
constitutional immunity than the loss of employment which may follow a
claim of privilege (See United States v. Field, dissenting opinion 193
F.(2d) 92, C.A. 2, certiorari dismissed on motion of Field's counsel,
342 U.S. 908; Christel v. Police Commissioner, 33 Calif.App.(2d) 564,
92 P.(2d) 419), or the prohibition placed upon a union's activity where
it fails to file a non-Communist affidavit (National Maritime Union of
America v. Herzog, 78 F.Supp. 146, D.C., aff'd 334 U.S. 854).
We have spoken of the logical inference to be drawn from silence.
The logical impact of evidence and not its admissibility is of course
our concern in these administrative proceedings. What then is the
logical conclusion to be drawn from the silence of one who claims his
answer may subject him to possible prosecution or punishment for
violation of a Federal law? Our reading of the authorities reveals the
inference is that the testimony withheld would be adverse to the
interests of the person claiming the privilege. This is the rule
established in these cases in which the claim is a proper subject of
comment (Ikevas v. Curtis, 261 P.(2d) 684 (Supreme Court of Washington,
Department II); Andrews v. Frye, 104 Mass. 234; Philipps v. Chase, 201
Mass. 444, 87 N.E. 755; Fross v. Wotton, 44 P.(2d) 350, Supreme Court,
California; Caminetti v. United States, 242 U.S. 470, 493-5, 61 L.Ed.
442; Raffel v. United States, 271 U.S. 494, 70 L.Ed. 1054; see also
United States v. St. Pierre, 128 F.(2d) 979, 981 (C.A. 2); Brown v.
Walker, 161 U.S. 591, 605, 40 L.Ed. 819).
Dean Wigmore states that on the basis of logic, it is "impossible to
deny that the very claim of privilege involves the confession of the
fact * * *,' and that "The inference (of guilt), as a matter of logic,
is not only possible but inherent, and cannot be denied' (Evidence, vol.
3, 3d ed., sec. 2272, pp. 409-410). We also note that the Model Code of
Evidence promulgated by the American Law Institute in 1942 recommends
that even in a criminal case, the judge and jury should have the right
to comment upon failure to testify and draw all reasonable inferences
from such failure; and that several states permit such comment (Rule
291(3), pp. 130-132).
Counsel argues that it is erroneous to draw an adverse inference from
a refusal to testify because the person involved may be innocent and the
refusal to testify may be based on grounds other than fear of admitting
guilt. We do not believe that the possibility that an innocent person
may claim the privilege need prevent our arriving at a logical
conclusion which the facts of a particular case may require. We have
pointed out that courts have not hesitated to draw unfavorable
inferences from privileged silence although in each case, the argument
that the claim may be made by the innocent was applicable. Furthermore,
it can be pointed out that nonprivileged silence has been based on other
grounds than fear of admitting guilt, yet adverse inferences have been
drawn. So, in United States ex rel. Circella v. Neelly, 115 F. Supp.
615 (N.D. Ill), refusal to testify was on the ground that the alien was
not required to be a Government witness, yet the court did not hesitate
to draw the strongest inference from the fact of silence. In Schoeps v.
Carmichael, 177 F.(2d) 391 (C.A. 9), refusal to testify was on an
improper claim to the privilege of self-incrimination, yet the court
drew an inference from the silence. (See also United States ex rel.
Vajtauer v. Commissioner, 273 U.S. 103, 111; Matter of K , A-5204481,
5, I. & N. Dec. 175 (B.I.A., March 18, 1953); Matter of R , A-9764935,
4, I. & N. Dec. 720 (B.I.A., August 1, 1952). Inference must follow
from the probabilities not the possibilities. To draw the inference in
a case of nonprivileged silence where there is no likelihood that the
alien has violated the law, and to refuse to do so in a privileged case
where the alien by his actions had placed himself in such a position
that he fears prosecution or punishment for violation of Federal laws,
would be to treat the least deserving with the greatest solicitude. We
do not believe any rule binds us to do this.
Moreover, in a deportation proceeding, deportability need not be
established with certitude or beyond a reasonable doubt. It is
sufficient that evidence on which a finding of deportability is based is
reasonable, substantial, and probative (sec. 242(b)(4), Immigration and
Nationality Act). The possibility that the claim can be made by an
innocent person would therefore not prevent the logical conclusion that
where a prima facie case of deportability is established, in all
probability, the claim is made by one who is not innocent.
From what has been said before, it is clear that an unfavorable
inference is a logical one from the claim of privileged silence; that
the use of such an unfavorable inference is permissible in many cases;
and that we, in an administrative proceeding, should not reject a
cogent, and persuasive fact because, in a criminal trial, the inference
must be ignored.
Finally, we have clear precedents for drawing an unfavorable
inference from silence on a claim of privilege in a deportation
proceeding. In United States ex rel. Zapp et al. v. District Director,
120 F.(2d) 762 (C.A. 2), an alien who was under indictment for crime
sought release in habeas corpus proceedings. One of his contentions was
that since he was under indictment, and since the facts on which the
criminal indictment was made and the deportation was sought were
"essentially the same,' and since he would be compelled to testify in
the deportation proceedings to avoid having an unfavorable inference
drawn, he would be required to incriminate himself with respect to
accusations of crimes. The court answered that argument as follows:
We think it quite clear that the right of Congress to provide
for the elimination of undesirable aliens is not hampered or
limited by the fact that such aliens may have become entangled
with other prohibitions of law. The proceedings in deportation
matters are entirely apart from any proceeding to enforce the
criminal laws and must proceed according to the statutes
regulating them. * * * the privilege against self-incrimination
may be operative in those deportation proceedings; but in that
event the alien's silence may be evidence against him. See also
Kent v. United States, 157 F.(2d) 1 (C.A. 5), cert. denied 329 U.
S. 785, but see (assumption of court for purpose of argument)
United States ex rel. Vajtauer, (supra), p. 112; United States ex
rel. Belfrage v. Shaughnessy, 212 F.(2d) 128 (C.A. 2).
Butterfield v. Zydok considered together with Carlson v. Landon, 342
U.S. 524, 96 L.Ed. 547, was a review of a habeas corpus proceeding. One
Zydok had been arrested in deportation proceedings on a charge relating
to membership in the Communist Party and had been denied release on
bail. He brought a habeas corpus proceeding. At his hearing in the
district court, he remained silent on a claim of privilege as to
membership in the Communist Party and his activities therein. The
district court (Zydok v. Butterfield, 94 F.Supp. 338 (E. D. Michigan),
made findings of fact that there was evidence of Communist Party
membership, that he had failed to deny such membership, and that Zydok,
"while under cross-examination by the Chief Assistant United States
Attorney, was a consistently evasive witness and his evasive demeanor in
testifying in relation to his Communistic activities convinces this
Court that he is knowingly and wilfully participating in the Communist
movement' (p. 341). The writ was denied. The Court of Appeals (187
F.(2d) 802 (C.A. 6)) criticized the drawing of an unfavorable inference
from Zydok's refusal to testify on the claim of self-incrimination and
reversed the district court. A majority of the Supreme Court found that
the testimony of Zydok "justifies the district court's finding set out
in the margin.' In the margin is set forth the finding of fact we have
previously quoted. This was considered by the three dissenting justices
as drawing an unfavorable inference from the claim of privilege (pp.
554-555, 566).
The Supreme Court of the United States in Orloff v. Willoughby, 345
U.S. 83, 97 L.Ed. 842, has recently refused to ignore the fact that a
claim of privilege was made. Orloff in habeas corpus proceedings sought
his discharge from the army or in the alternative the granting to him of
a commission as a medical officer. After Orloff's induction, under a
special law relating to doctors, he applied for a commission and when
asked concerning membership in the Communist Party of the United States
or other organizations on the list designated by the Attorney General as
subversive, he claimed his privilege against self-incrimination. The
commission was denied him, but he was retained in the army and assigned
to medical work in a noncommissioned status. The following statement
from the majority opinion is appropriate:
Could this court, whatever power it might have in the matter,
rationally hold that the President must, or even ought to, issue
the certificate commission to one who will not answer whether he
is a member of the Communist Party?
It is argued that Orloff is being punished for having claimed a
privilege which the Constitution guarantees. No one, at least no
one on this Court which has repeatedly sustained assertion by
Communists of the privilege against self-incrimination, questions
or doubts Orloff's right to withhold facts about himself on this
ground. No one believes he can be punished for doing so. But the
question is whether he can at the same time take the position that
to tell the truth about himself would incriminate him and that
even so the President must appoint him to a post of honor and
trust. We have no hesitation in answering that question "no.'
United States ex rel. Belfrage v. Shaughnessy, (supra), contains a
statement criticizing the drawing of an unfavorable inference from
silence on a claim of privilege. However, we believe that Belfrage is
distinguishable. Belfrage, an alien, was held without bail pending
deportation proceedings. Bail was refused by the immigration
authorities on the ground that there was substantial danger that
Belfrage would abscond or engage in activities inimical to the public
welfare if admitted to bail. As some evidence of the reasonableness of
its apprehensions, the Service listed, along with other reasons, the
fact that Belfrage had invoked his constitutional privilege when called
as a witness before congressional committees shortly before being
arrested in deportation proceedings. The district court sustained the
writ. On appeal, the circuit court affirmed. The circuit court stated
that Belfrage's refusal to answer questions before the congressional
committees was "no rational basis' for inferring that if admitted to
bail there would be substantial danger that in the future the alien
would abscond or engage in activities detrimental to the public welfare,
and that the invocation of the Fifth Amendment was no ground for an
inference of guilt or of criminal proclivities.
Detention of Belfrage could be justified only if reasonable grounds
existed for the belief that his being at large would lead to certain
undesirable situations. The question of his future conduct was before
the court. It is in this context that we must view the court's
criticism concerning the drawing of an inference from silence. In our
case, respondent's future conduct is neither material nor in issue. The
issue before us is as to past conduct and as to that, we have
demonstrated that silence where a prima facie case exists is a rational
basis for the inference that one who is silent conceals matters that are
adverse to him.
The relation of Belfrage to our problem must also be considered in
view of the following matters. Belfrage, cites as authority, Spector v.
United States, 193 F.(2d) 1002 (C.A. 9), and Wigmore on Evidence, Third
Edition, Vol. VIII, section 2251. Spector involved a habeas corpus
proceeding. Spector and two others had been indicted for the crime of
conspiracy to violate the Smith Act. They were jailed and were awaiting
trial. The district court denied bond. Appeal was taken to the Court
of Appeals which granted bond. Here again, future conduct was involved.
Moreover, it is clear that the Court of Appeals considered a habeas
corpus proceeding as a criminal case (see footnote 2, p. 1005 of the
opinion). Since the case was considered a criminal one, the provisions
of 18 U.S.C. 3481, (supra), barring the making of an unfavorable
inference from the failure to testify would apply. Furthermore, the
Government attempted to justify the detention of Spector on the ground
that he was under the control of the Communist Party and would do its
will, absconding if necessary. The court pointed out that the
Government offered no evidence that Spector was connected with the
Communist Party, and that it was improper to draw an unfavorable
inference from the mere allegation in the indictment. In the instant
case, we have more than allegations, we have a prima facie case
established by evidence. Thus, we distinguish Spector on the ground
that it dealt with future conduct; it was a criminal case; and a prima
facie case had not been established by the Government. The section from
Wigmore cited by the court is a 15-page analysis of the pros and cons
for continuing the privilege in criminal matters. We do not deem it
particularly appropriate to the discussion of our problem. Finally,
Belfrage makes no note of Zapp, (supra), the direct pronouncement in the
same circuit permitting the drawing of an unfavorable inference from a
claim of privileged silence in a civil matter.
We believe that what we have said heretofore answers counsel's
contention that no inference should be drawn from the claim of
privilege. In view of our conclusion that a prima facie case exists and
that respondent's refusal to answer questions concerning the lodged
charge cloaks this prima facie case with substance and probity, we will
not discuss counsel's many contentions although we have fully considered
them.
We have not heretofore fully stated our position on the propriety of
drawing an unfavorable inference from silence on a claim of privilege.
The subject is one in which the courts of the different states have
taken opposing views. There is language in Federal cases which
considered without careful examination appears to support a view
contrary to the position we have taken. In view of the effect these
matters may have had upon the respondent in taking the position that she
would not testify, we will afford her an opportunity to testify fully
and freely as to matters pertinent to the lodged charge if she petitions
for such privilege.
Order: It is ordered that the appeal be and the same is hereby
dismissed.
(1) We assume for the purpose of this proceeding that the claim was
properly made, since the answer to questions concerning Communist Party
membership might involve respondent in a prosecution for violation of
the Smith Act (Estes v. Potter, 183 F.(2d) 865 (C.A. 5) certiorari
denied 340 U.S. 290).
Crime involving moral turpitude -- Violation of 26 U.S.C. 404 (R.S. 3296) -- Savings clause, effect on non-deportable status prior to December 24, 1952 -- Good moral character, section 101(f)(5) of Immigration and Nationality Act -- Suspension of deportation, section 244(a)(1) of the act.
(1) An offense in violation of 26 U.S.C. 404 (R.S. 3296) is not a crime involving moral turpitude.
(2) The savings clause, section 405(a) of the Immigration and Nationality Act, does not preserve the non-deportable status of an alien subject to deportation under that act who was not deportable prior thereto. Hence, an alien who entered the United States in 1921 without inspection and without being in possession of a valid passport is deportable under the Immigration and Nationality Act, notwithstanding that he could not be found deportable prior to the effective date of that act because of expiration of time limitations.
(3) An alien who applied for suspension of deportation on March 11, 1954, pursuant to section 244(a)(1) of the Immigration and Nationality Act, who was convicted on May 7, 1947, for "lottery' and on March 26, 1953, for "bookmaking and pool selling' is precluded from establishing good moral character under section 101(f)(5) of the act, since he has been convicted of two or more gambling offenses committed within the period during which he is required to establish good moral character.
(4) Even without the specific provision contained in section 101(f) of the act, an alien who has been arrested on seven occasions, the latest relating to his conviction on March 26, 1953, cannot be found to have established good moral character and his application for suspension of deportation under section 244(a)(1) of the act would necessarily be denied as a matter of discretion.
CHARGES:
Warrant: Act of 1952 -- Excludable at time of entry -- No passport.
Act of 1952 -- Entered without inspection.
Act of 1952 -- Convicted of two crimes after entry -- 26 U.S.C. 404
and conspiracy to violate 26 U.S.C. 2833 and 3321.
Discussion: This case is before us on appeal from the decision of a
special inquiry officer on May 7, 1954, directing the respondent's
deportation.
The respondent is a 54-year-old male, native and citizen of Italy,
who claims that his only entry into the United States occurred on
January 6 or 7, 1921. Counsel concedes that at that time he was not in
possession of a passport or any travel document in lieu thereof and that
he entered without inspection. The criminal charge is predicated on the
respondent's conviction in 1934 on two counts of an indictment, both of
which charged a violation of 26 U.S.C. 404 (R.S. 3296), and his
conviction in 1940 of conspiracy to violate the Internal Revenue laws.
In connection with the 1934 conviction, he was sentenced to imprisonment
for 3 months and a sentence of 5 months was imposed in 1940. The
conviction in 1940 involved a conspiracy to carry on the business of a
distiller with the intent to defraud the United States of the taxes on
distilled spirits, and counsel concedes that, in accordance with the
decision in Jordan v. DeGeorge, 341 U.S. 223 (1951), this offense must
be held to involve moral turpitude. The statutory provision under which
the respondent was convicted in 1934 (26 U.S.C. 404; R.S. 3296) was as
follows:
Whenever any person removes, or aids or abets in the removal of
any distilled spirits on which the tax has not been paid, to a
place other than the distillery warehouse provided by law, or
conceals or aids in the concealment of any spirits so removed, or
removes, or aids or abets in the removal of any distilled spirits
from any distillery warehouse, or other warehouse for distilled
spirits authorized by law, in any manner other than is provided by
law, or conceals or aids in the concealment of any spirits so
removed he shall be liable to a penalty of double the tax imposed
on such distilled spirits so removed or concealed, and shall be
fined not less than $200 nor more than $5,000, and imprisoned not
less than 3 months nor more than 3 years.
Counsel contends that the crime, of which the respondent was
convicted in 1934, is one which does not involve moral turpitude and the
special inquiry officer, agreeing with this contention, has concluded
that the criminal charge is not sustained. We concur in his conclusion
that the criminal charge is not sustained and that the violation of R.S.
3296 does not involve moral turpitude. In Matter of P , A-3748813, 2,
I. & N. Dec. 117, 121, decided June 23, 1944, we said, "one of the
criteria adopted to ascertain whether a particular crime involves moral
turpitude is that it be accompanied by a vicious motive or corrupt mind'
and we also stated that it was in the intent that moral turpitude
inheres. In Macklin v. United States, 79 F.(2d) 756 (C.C.A. 9, 1935),
the court had under consideration a conviction under 26 U.S.C. 404 and
reached a conclusion that this statutory provision did not include any
element of intent to defraud the United States of revenue. We believe
that the statutory provision quoted above is purely a regulatory
enactment with a complete absence of any element which could be
considered to denote baseness, vileness or depravity. No criminal
intent is required to be established and we are satisfied, therefore,
that this offense does not involve moral turpitude.
As we have previously indicated, counsel concedes that when the
respondent entered the United States in or about 1921, he was not in
possession of a valid passport or any other document in lieu thereof and
that he entered without inspection. However, counsel asserts that there
was a time limitation upon the deportation of aliens on these charges;
that the respondent was not deportable prior to the Immigration and
Nationality Act; and that this nondeportable status was preserved by
the provisions of section 405(a) of that act. Congress has plenary power
over aliens and may direct their deportation even on grounds nonexistent
at the time of their entry. /1/ We have previously considered the
precise contentions urged by counsel and they must be rejected on the
basis of our decisions in Matter of M , A-2669541, 5, I. & N. Dec. 261
(June 1, 1953); Matter of I , E-25308, A-4771776, 5, I. & N. Dec. 343
(July 21, 1953); and Matter of M , E-118717, 5, I. & N. Dec. 642
(January 26, 1954). We find no merit in counsel's contention that the
statutory provision would be unconstitutional for vagueness because the
question of whether the respondent should be deported would be dependent
upon whether the Attorney General exercised his discretion to grant
registry under section 249 of the Immigration and Nationality Act. We
hold, therefore, that the respondent is deportable on the first two
charges stated in the warrant of arrest.
Counsel has requested that, if this Board finds the alien to be
deportable, a conclusion be reached by us that he is eligible for
registry under section 249 and that the case be remanded to the Service
for reconsideration of his registry application. The respondent has
applied for registry on two occasions and these applications were denied
on October 26, 1948, and September 2, 1953. The latest application was
denied on the ground that the applicant had failed to "satisfy the
Attorney General' that he had entered and resided in the United States
continuously since prior to July 1, 1924; that he is a person of good
moral character; and that he is not subject to deportation. This Board
has no jurisdiction relative to applications under section 249 of the
Immigration and Nationality Act and any request for reopening or
reconsideration of that decision must be made pursuant to 8 C.F.R.
8.1(a) and 8 C.F.R. 8.11(a).
The remaining question in this case is whether suspension of
deportation should be granted. The respondent testified that he has
never been married. He has been arrested on seven occasions, the latest
of which relates to a conviction on March 26, 1953, for "bookmaking and
pool selling' for which he was sentenced to 90 days' imprisonment. The
application for suspension of deportation was executed on March 11,
1954, and under section 244(a)(1) of the Immigration and Nationality
Act, the respondent is required to establish, among other matters, good
moral character subsequent to March 11, 1947. Included among the seven
arrests mentioned are an arrest on May 7, 1947, for "lottery,' at which
time he was sentenced to pay a fine of $500 and costs, an arrest on
February 28, 1948, for "traffic in lottery,' at which time he was
discharged, and an arrest on January 26, 1951, at which time he was
discharged and paid costs of $7.05. The convictions on May 7, 1947, and
March 26, 1953, bring the respondent within the purview of section
101(f) of the Immigration and Nationality Act which precludes a finding
of good moral character in the case of an alien who has been convicted
of two or more gambling offenses committed within the period during
which he is required to establish good moral character. Even if it were
not for this specific provision, we would find it necessary to hold that
the respondent has not established good moral character for the required
period because of his arrest record.
In Matter of M , 5, I. & N. Dec. 261, (supra), we referred to the
more stringent requirements of section 244(a) in connection with the
change in phraseology to "exceptional and extremly unusual hardship.'
The respondent's deportation would not, in our opinion, result in
exceptional and extremely unusual hardship to him. Although we hold
that the respondent does not meet the statutory requirements prescribed
in section 244(a) of the Immigration and Nationality Act, we find the
circumstances of this case to be such as would necessitate the denial of
the application as a matter of administrative discretion. In view of
the foregoing, we will direct that the appeal be dismissed.
Order: It is ordered that the appeal be and the same is hereby
dismissed.
(1) Carlson v. Landon, 342 U.S. 524, 536 (1952); Harisiades v.
Shaughnessy, 342 U.S. 580, 587 (1952); Marcello v. Ahrens, 212 F.(2d)
830, 836 (C.A. 5, May 6, 1954), rehearing denied May 25, 1954.
Discretionary authority contained in section 211(c) and (d) of Immigration and Nationality Act may be exercised to correct inadmissibility under section 11(c) of the Refugee Relief Act.
The discretionary authority contained in section 211(c) and (d) of the Immigration and Nationality Act may be exercised, conditioned upon payment of the required visa fee, to permit admission into the United States of a quota immigrant in possession of a special nonquota immigrant visa issued under section 4(a)(6) of the Refugee Relief Act, based on a relative preference for which he was not qualified, but who could not by reasonable diligence have learned of the defect in the visa before embarking for the United States.
EXCLUDABLE:
Section 11(c), Public Law 203 -- Refugee Relief Act of 1953.
Discussion: This record relates to a 48-year-old married male, an
alien, a native and citizen of Italy, who last arrived at the port of
New York, N.Y., on July 24, 1954, as a passenger on the steamship
Cristoforo Colombo, making application for admission to the United
States for permanent residence. At the time of arrival he presented as
the basis for admission an Italian passport valid to June 11, 1955. He
also presented immigrant visa and alien registration, immigrant
classification -- nonquota under Public Law 203 -- section 4(a)(6). The
visa was issued by the American Consulate General at Palermo, Italy, on
June 17, 1954, and is valid to October 16, 1954, and bears No. 676. The
visa was issued on the basis of approved petition executed by the
applicant's brother, P , an American citizen. The petition which was
approved on March 9, 1953, bears No. VP 2-2828. The testimony adduced
establishes that P , the petitioner, died on January 21, 1953. The
applicant has testified that when he learned by letter from his
relatives in the United States that his brother had died, he became
disturbed regarding the possibility of being ineligible for a visa and
went to the travel agent who had been assisting him in securing a visa
and told the travel agent of his problem. The applicant further states
that the travel agent told him that he had nothing to worry about
because of the fact that assurances for his support had been given by
other members of his family and his brother's death would not interfere
with his securing a visa. The applicant has testified that having been
given this information, his fears were allayed and he felt he had
nothing more to worry about or to inquire about. Because he no longer
had any doubt as to his eligibility for a visa, he did not propound the
same question to the American consul who later gave him his visa. He
has testified that he was not specifically asked by any consular
official or immigration official abroad whether his brother was alive.
If he had been asked, he would have testified truthfully. I have found,
based upon his demeanor and his testimony today, that the applicant has
testified truthfully as to his belief that his brother's death did not
prevent his being given a visa and being admitted into the United
States. His testimony on this subject is supported by the fact that the
applicant of his own volition truthfully told the immigration officer
who examined him at the port of New York in response to a question put
to him by the immigration officer, that his brother was dead. If the
applicant were intent upon deceiving this Government as to his brother's
death, certainly he would not have hesitated to continue a deception by
telling the immigration officer at the port of New York that his brother
was yet alive. The applicant has asked that if found inadmissible to
the United States, he be admitted under the authority contained in
section 211(c) and (d) of the Immigration and Nationality Act. No basis
for a finding of inadmissibility exists in this case separate and apart
from any basis for inadmissibility which rests upon the aforementioned
death of the applicant's brother. The applicant has denied any arrests
or subversive affiliations. He believes that he will be self-supporting
in this country and if he requires any aid, he has sufficient family
ties in this country to secure financial aid.
Two questions present themselves. The first question is whether if
the applicant is found to be inadmissible under the Refugee Relief Act
of 1953, he may nevertheless be admitted under section 211(c) and (d) of
the Immigration and Nationality Act. The second question of course is
whether, if he may legally be admitted under the Immigration and
Nationality Act as a matter of law, he should be admitted under that act
as a matter of discretion. Considering the first question, reference is
had to section 4(a)(6) of the Refugee Relief Act which provides "Special
nonquota immigrant visas' may be issued to persons of Italian ethnic
origin "who qualify under any of the preferences specified in paragraph
(2), (3), or (4) of section 203(a) of the Immigration and Nationality
Act.' In order for eligibility under section 203(a)(4) to exist, there
must of course be a living brother in this case. The applicant's
brother having died before the issuance of a visa to him, that death
constituted an automatic revocation of the approved petition and that
death of course deprived the applicant of any status under section
203(a)(4) of the Immigration and Nationality Act. Ergo, since the
applicant does not have such status, he may not be issued a visa under
the Refugee Relief Act and since section 11(c) of the Refugee Relief Act
of 1953 provides that no person shall be issued a visa or be admitted
into the United States unless that person is found to have established
eligibility for a visa and admission to the United States under the act
and immigration laws, it must necessarily be found that the applicant is
inadmissible under the Refugee Relief Act. However, Congress in
enacting section 4 used the phrase "Special nonquota immigrant visas.'
Congress in using that phrase obviously intended to have visas issued
within the framework of the Immigration and Nationality Act, although in
issuing visas within the framework of that act, the Congress set up a
class known as "Special,' but nevertheless a nonquota immigrant visa
class. It is believed that the visa before me is a nonquota visa within
the meaning of section 211(c) of the Immigration and Nationality Act.
It is believed that this applicant is a nonquota immigrant within the
meaning of section 211(a)(3) of the Immigration and Nationality Act and
may, if it is found expedient, be excluded under section 211(a)(3) of
the Immigration and Nationality Act. However, no recourse will be had
to exclusion under section 211(a)(3) of the Immigration and Nationality
Act since no useful purpose would be served. For the purpose of
invoking section 211(c) of the Immigration and Nationality Act, however,
this case will be considerd as if excludability had been established and
invoked under section 211(a)(3) of the Immigration and Nationality Act.
It cannot be contemplated that Congress in passing this act the Refugee
Relief Act of 1953 intended an immigrant to be the subject of less grace
in permitting admission when a defect in visa was shown to exist, than
the Congress extended to those persons coming to the United States under
the Immigration and Nationality Act provisions with a defective visa.
It is, therefore, found that, as a matter of law, section 211(c) and (d)
of the Immigration and Nationality Act may be applied to a case of this
kind.
The second question therefore presents itself -- whether or not the
authority vested in the Attorney General under section 211 may be
exercised and should be exercised in this case. In determining that
question I must first examine the issue of whether or not the
inadmissibility was not known to and could not have been ascertained by
the exercise of reasonable diligence by this immigrant prior to the
departure of his vessel from the last port outside the United States.
The applicant has testified that he was disturbed when he heard of his
brother's death and did go to the travel agent assisting him to ask
information as to whether or not that death would affect his status. He
was informed that it would not affect his status. It is found that the
phrase "reasonable diligence' contemplates that type of diligence which
a reasonable man in the applicant's position and possessing that same
degree of intelligence should have exercised. It was not unreasonable
for the applicant to refer his question to a travel agent, a person of
some dignity as far as the applicant was concerned, for the answer to
his question. A more prudent, a more careful man might well have asked
the consulate, but the applicant of average intelligence and average
position in life in Italy reasonably could have been expected to ask a
travel agent the perplexing question rather than to "annoy' the
consulate with his small problems. I, therefore, find that in this case
the applicant could not by reasonable diligence have learned of his
defect in visa before embarking for the United States.
The applicant has several relatives in the United States. He has
apparently liquidated all his affairs in Italy. To bar him from
admission to the United States at this time would be to inflict upon him
a tremendous financial loss and would sentence him, in view of the
seriously oversubscribed Italian quota, to a permanent return to Italy
and deprive him probably forever of an opportunity of coming to the
United States. It is believed on these facts that as a matter of
discretion the applicant should be admitted to the United States under
section 211 of the Immigration and Nationality Act. I, therefore, set
forth the following findings of fact and conclusions of law on the issue
of excludability and upon the entire record my decision as follows.
Findings of Fact as to Excludability:
(1) That the applicant is an alien, a native and citizen of
Italy;
(2) That the applicant last arrived at the port of New York,
New York, on the SS. Cristoforo Colombo on July 24, 1954, applying
for admission to the United States for permanent residence;
(3) That the applicant is in possession of a valid Italian
passport;
(4) That the applicant is in possession of an immigrant visa
issued as nonquota under Public Law 203 -- section 4(a)(6);
(5) That the visa was based upon approved petition submitted by
his brother, P ;
(6) That his borther, P , died on January 21, 1953, prior to
the issuance of the visa;
(7) That the applicant was not aware and could not by
reasonable diligence have ascertained that because of his
brother's death the visa was invalid.
Conclusions of Law as to Excludability:
(1) That the applicant is inadmissible to the United States
under section 11(c) of the Refugee Relief Act of 1953, Public Law
203, as an alien ineligible for a visa and admission into the
United States under section 4(a)(6) of Public Law 203 in that he
does not qualify for issuance of visa and for admission into the
United States under the preference specified in section 203(a)(4)
of the Immigration and Nationality Act.
Order: It is ordered that pursuant to the provisions of section
211(c) and (d) of the Immigration and Nationality Act the Department of
State be notified to reduce the quota of Italy during the current fiscal
year if a quota number is available, otherwise during the next following
fiscal year, and that the applicant be admitted for permanent residence.
Discussion: The special inquiry officer in an order dated July 24,
1954, certified this case to the Board for final decision in accordance
with the applicable regulations. We have carefully considered all the
evidence of record and we concur in the conclusion of the special
inquiry officer. Accordingly, we will direct that the action of the
special inquiry officer be approved, conditioned upon the payment of the
required fee.
Order: It is ordered that the action of the special inquiry officer
be approved, conditioned upon the payment of the required fee.
Status -- Section 101(a)(15)(B) of Immigration and Nationality Act -- Failure to comply with conditions under which admitted -- Section 241(a)(9) of the act -- Actual employment not necessary for finding deportability.
An alien who was a bona fide nonimmigrant under section 101(a)(15)( B) of the Immigration and Nationality Act at the time of his admission to the United States has failed to maintain the status under which he was admitted when he obtains a social security card; registers for employment; and testifies that he intends to work in the United States. Such activity is inconsistent with and not essential to the status of a temporary visitor for pleasure and renders him deportable under section 241(a)(9) of the act even though he has not actually engaged in employment.
CHARGE:
Warrant: Section 241(a)(9) -- Act of 1952 -- Failed to comply --
Visitor for pleasure, under section 101(a)(15)(B) of the act.
Discussion: The case comes forward pursuant to certification of the
order of the special inquiry officer entered May 28, 1954, directing
that the proceedings be terminated.
The record relates to a native and citizen of Haiti, 20 years old,
male, who entered the United States at the port of San Juan, P.R., on
May 14, 1954, by plane. He was admitted as a temporary visitor for
pleasure under section 101(a)(15)(B) of the Immigration and Nationality
Act for a temporary period expiring on August 14, 1954. The entry has
been verified.
In a sworn statement to an immigration officer on May 25, 1954, the
respondent admitted that he took out a social security card on May 22,
1954. Apparently the immigration officer apprehended the respondent on
May 25, 1954, at an employment agency. The respondent denied making an
answer in the statement to the effect that he was looking for any kind
of a job he could get and hoped to earn about $25 per week but admitted
that the rest of the statement was correct. A subsequent question
indicates that the respondent intended to work in the United States 3 or
6 months or as long as he remained. However, the respondent did not
accept any employment or engage in any work although he indicated that
he was prepared to accept employment, if offered.
There is no doubt that the respondent at the time of his entry was a
bona fide temporary visitor for pleasure as specified in his
nonimmigrant visa under section 101(a)(15)(B) of the Immigration and
Nationality Act. The question presented is whether he has failed to
comply with the conditions under which he was admitted. The conditions
of nonimmigrant status are set forth in section 214.2, Title 8, Code of
Federal Regulations. Subsection (a) requires the alien to maintain the
particular nonimmigrant status under which admitted. Subsection (c)
provides:
That while in the United States he will not engage in any
employment or activity inconsistent with and not essential to the
status under which he is in the United States unless such
employment or activity has first been authorized by the district
director or the officer in charge having administrative
jurisdiction over the alien's place of temporary residence in the
United States.
In the instant case while the respondent actually did not engage in
any employment, he did obtain a social security card and when
apprehended was present at an employment agency and has testified that
he intended to work in the United States. Was this an activity
inconsistent with and not essential to the status under which the
respondent was in the United States? The term "pleasure' as used in
section 101(a)(15)(B) of the act refers to the purpose of an alien who
seeks to enter the United States temporarily as a tourist or for some
other legitimate purpose, including amusement, education (other than
some activity which would make him classificable as a student or
teacher), health, rest, or visits with relatives or friends (22 C.F.R.
41.40(c)). It is apparent that the action of the respondent in
obtaining a social security card and registering for employment was
inconsistent with the status under which he was admitted.
The special inquiry officer has held that the conduct of the
respondent in the instant case and the overt acts performed was not an
activity inconsistent with the alien's nonimmigrant status; and has
held that the word "activity' as used in 8 C.F.R. 214.2(c) refers not to
behavior indicative of a state of mind, but rather to transactions of
business or for other profitable pursuits equivalent or akin to
employment. However, the report of the Senate Committee on the
Judiciary emphasizes that the temporary visitor class is substantially
the same as under the Immigration Act of 1924. /1/ Prior regulations
implementing the Immigration Act of 1924 provided for the arrest and
deportation of a visitor if he evidenced orally or in writing or by
conduct an intention to violate or to fail to fulfill any of the
conditions of the temporary admission to or extended stay in the United
States. /2/ In determining whether an alien was a bona fide
nonimmigrant the court differentiated between proof of a desire to stay
and proof of an intent to stay, indicating that the latter would
establish the alien as an immigrant. /3/
Nothing has been brought to our attention to show that it was
previously required that to establish a violation of the status of a
temporary visitor for pleasure it was required to go so far as to
establish an actual engagement in employment. On the contrary, both the
previous regulations and prior court decisions made other activity short
of employment evidence of violation of status. This other activity
could consist of an express intent to violate status or conduct
indicating a violation of status. It is believed that the term
"activity inconsistent with and not essential to the status under which
he is in the United States' refers to conduct and intent which
previously constituted evidence of violation of status. This conclusion
is emphasized by the congressional committee report previously referred
to indicating that no change was contemplated in the class of temporary
visitors. It is, therefore, concluded that the conduct of the
respondent in obtaining a social security card, appearing at an
employment office, and the announced intent to obtain work constitute
activity inconsistent with his status of a bona fide temporary visitor
and that he is subject to deportation on the charge stated in the
warrant of arrest.
The respondent's mother is a lawfully resident alien. He testified
that he came to this country in order to visit a doctor but that he was
not advised by the consul that he would not be permitted to work while
in this country. The respondent has indicated that he can defray the
expenses of his return to Haiti. He will be permitted an opportunity to
depart voluntarily.
Order: It is ordered that the order of the special inquiry officer
terminating the proceedings be withdrawn and 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, he be deported pursuant
to law on the charge stated in the warrant of arrest.
(1) Senate Report No. 1137 (82d Cong., 2d sess.) p. 19.
(2) 8 C.F.R. 119.5(a)(3).
(3) Chryssikos v. Commissioner of Immigration, 3 F.(2d) 372, 375.
Citizenship -- Not acquired by native of Virgin Islands not residing therein on the date of cession.
A native of the Virgin Islands who has made his home in the French West Indies from 1916 to the present did not acquire United States nationality at the time of cession of the Virgin Islands to the United States on January 17, 1917, because he was not an inhabitant of the Islands. While physical presence in the Virgin Islands at the moment of cession is not required, it is expected that persons temporarily sojourning abroad must return or must have returned within a reasonable time and must establish that, even while absent, they were bona fide residents of the Virgin Islands, had a definite intention to return, that the absence was only temporary, and that no fixed place of abode had been acquired elsewhere.
EXCLUDABLE:
Act of 1952 -- No immigrant visa.
Discussion: Appellant, 67 years old, widower, male, arrived at St.
Thomas, Virgin Islands, on May 29, 1954, from St. Martin, French West
Indies. He applied for admission as a citizen of the United States.
The special inquiry officer ordered that he be admitted to the United
States as a national. The officer in charge of the Immigration and
Naturalization Service office at Charlotte Amalie, Virgin Islands,
appealed to this Board from that decision, stating that no decision as
to the nationality of the appellant and of persons in similar
circumstances is available.
Appellant was born at St. Croix, Virgin Islands, on November 8, 1886.
He resided in the Virgin Islands until the summer of 1916, when, he
testified, he "left' and went to live in St. Thomas, French West Indies;
that his wife's home was there, and he went to live with her. He did
not return to the Virgin Islands for any purpose until 1942, at which
time he returned to St. Croix, Virgin Islands, for a visit of 1 month.
He then returned to the French West Indies, and lived there until he
attempted the entry into the Virgin Islands on May 29, 1954.
Appellant requests admission to the Virgin Islandss as a citizen,
because of his birth in the Virgin Islands. His wife died 4 years ago.
He is without funds and has no relatives except his sister who lives in
St. Croix and who has stated that she will be responsible for him.
Appellant testified that at no time had he made a declaration to
preserve his Danish citizenship. He has never exercised any rights as a
French citizen either by voting, serving in the military forces of that
country, or otherwise. No children were born of his marriage. The
special inquiry officer stated that appellant disclaims any criminal
record and testifies that he has never been a member of the Communist
Party. He has never applied for nor received an immigrant visa.
Denmark ceded the Virgin Islands to the United States by a treaty
which took effect on January 17, 1917. The treaty provided that Danish
citizens who remained in the Islands might opt Danish citizenship by
making a declaration before a court of record within 1 year, and in
default of such a declaration, they should be held to have renounced
Danish citizenship and to have accepted citizenship in the United
States. The special inquiry officer held:
The treaty made no provision for natives of the Virgin Islands
who were absent from the Islands when possession was transferred
to the United States on January 17, 1917. However, it has been
determined under generally applicable principles of international
law, that a native of the Virgin Islands of the United States,
absent therefrom and from other United States territory on January
17, 1917, who did not preserve Danish citizenship and who at no
time thereafter was within any territory of Denmark, is
presumptively a national of the United States.
He held, therefore, that the appellant, a Danish citizen at the time
he left the Virgin Islands, had become a non-citizen national of the
United States, even though he had never returned to those Islands since
January 17, 1917. It is our conclusion that this decision was not
correct, that appellant has acquired neither United States nationality
nor citizenship at any time.
The treaty provided that the civil rights and political status of the
inhabitants of the Islands should be determined by Congress. It has
been held that this provision in the treaty meant that the Virgin
Islanders did not automatically acquire full United States citizenship
upon cession. They acquired United States nationality only, and
legislative action was necessary to give them full United States
citizenship. /1/ The enactment which granted citizenship was the act of
February 25, 1927 (44 Stat. 1234, 8 U.S.C. 5(b), as amended by the act
of June 28, 1932, 47 Stat. 336, 8 U.S.C. 5(b)), as follows:
The following persons and their children born subsequent to
January 17, 1917, are hereby declared to be citizens of the United
States:
(a) All former Danish citizens who, on January 17, 1917,
resided in the Virgin Islands of the United States, and are now
residing in those Islands or in the United States or Puerto Rico,
and who did not make the declaration required to preserve their
Danish citizenship by article 6 of the treaty entered into on
August 4, 1916, between the United States and Denmark, or who,
having made such a declaration, have heretofore renounced or may
hereafter renounce it by a declaration before a court of record;
(b) All natives of the Virgin Islands of the United States who,
on January 17, 1917, resided in those islands, and are now
residing in those islands or in the United States or Puerto Rico,
and who are not citizens or subjects of any foreign country;
(c) All natives of the Virgin Islands of the United States who,
on January 17, 1917, resided in the United States, and are now
residing in the Virgin Islands of the United States, and who are
not citizens or subjects of any foreign country (44 Stat. 1234);
and
(d) All natives of the Virgin Islands of the United States who
are, on the date of enactment of this subdivision, residing in
continental United States, the Virgin Islands of the United
States, Puerto Rico, the Canal Zone, or any other insular
possession or Territory of the United States, who are not citizens
or subjects of any foreign country, regardless of their place of
residence on January 17, 1917.
The last quoted paragraph (d) was added by the amendatory act of June
28, 1932.
Clearly, appellant does not fall within any of the classifications
set forth above. Having left the Virgin Islands in 1916, he was not a
former Danish citizen residing in the Virgin Islands on January 17,
1917, nor was he residing in the continental United States or in any
other insular possession or territory of the United States.
Appellant did not acquire United States citizenship by the provisions
of section 306 of the Immigration and Nationality Act of 1952.
Not being a person who was specifically included in the three
statutes which have delineated the groups of natives, residents and
former residents of the Virgin Islands who would be given United States
citizenship, it should be assumed that it was not intended by Congress
that he be given United States citizenship. In support of this
assumption, a Senate Report on section 5 of the act of June 28, 1932,
which after its enactment became section 1(b) of the act of February 25,
1927, having set forth all the classes of persons who were to be granted
citizenship and some of the reasons for granting citizenship to these
persons, the report then continued: /2/
(D) No provision was made in the act of February 25, 1927, for
the citizenship or naturalization of the following natives of the
Virgin Islands:
(1) Natives of the Virgin Islands who, on January 17, 1917,
resided anywhere else than (a) in the Virgin Islands, (b) in the
United States; or
(2) Natives of the Virgin Islands who resided either in the
Virgin Islands or in the United States on January 17, 1917, and
who, on February 25, 1927, resided anywhere else than (a) in the
Virgin Islands, (b) in the United States, or (c) in Puerto Rico.
(3) Natives of the Virgin Islands regardless of date of birth,
who on current date do not reside either (a) in the Virgin
Islands, or (b) in the United States, or (c) in Puerto Rico,
regardless of their place of residence on either January 17, 1917,
or February 25, 1927. Emphasis supplied.
Appellant falls within groups (D)(1) and (3) above. On January 17,
1917, he did not live in the Virgin Islands or in Puerto Rico or in the
United States. He had gone to make his permanent home in the French
West Indies.
The incorrect impression that appellant may have acquired United
States nationality at the time of cession probably arose from the
opinion of the Attorney General, 38 Op.Atty.Gen. 525, referred to above,
containing some imprecise language, which might create the impression
that this should be or is the law. However, that opinion actually
concerns the citizenship of persons born in the Virgin Islands who were
absent from those islands at the time of annexation by the United States
on January 17, 1917, but were residing in "continental United States,
the Virgin Islands of the United States, Puerto Rico, the Canal Zone, or
other insular possessions or territory of the United States' on June 28,
1932, the date of the amendatory act discussed above, and who were not
then citizens or subjects of any foreign country other than Denmark.
The Attorney General discusses en passant the problem of citizens of the
Virgin Islands, absent on the date of cession, who are "temporarily
sojourning for a brief time in another country.' It was the conclusion
of the Attorney General, though these conclusions must necessarily fall
in the class of dicta, that such absent persons are comprised in the
cession "if they return * * * soon after the cession.' Keith, Theory of
State Session, p. 42. The Attorney General refers to an opinion (24
Op.Atty.Gen. 40, 43) concerning Molinas, a native of Puerto Rico
temporarily living in France at the time of the annexation of Puerto
Rico (April 11, 1899), and still in France when the opinion was rendered
(May 13, 1902). He concluded that Molinas, even though absent from the
country, became a citizen of Puerto Rico and, as such, an American
national entitled to the privileges of certain tariff laws. The Supreme
Court later quoted with approval from this opinion of the Attorney
General in Gonzales v. Williams, 192 U.S. 1 (1904) (48 L.Ed. 317) as
follows:
But even in supposing that a native Puerto Rican like Mr.
Molinas, temporarily absent at the date of the treaty, has been
unintentionally omitted from section 7, he is undoubtedly one of
those turned over to the United States by article IX of the treaty
to belong to our nationality. He is also clearly a Puerto Rican;
that is to say, a permanent inhabitant of that Island, which was
also turned over by Spain to the United States.
It should be noted that the cases and authorities referred to above
specify that the absent native is "temporarily living' in a foreign
country. They require that he establish that he intends to return to
his native territory; that he is still a "permanent inhabitant' of the
Island. This view has been adopted by the Department of State,
according to the Digest of International Law, Hackworth, Volume III, p.
149. This authority states that in an instruction to the American
Consul at Santo Domingo of October 3, 1931, the Department of State
said:
The Department has construed the word "residence' as used in
the laws and treaties relating to the inhabitants of the Virgin
Islands as synonymous with "home' or "domicile' that is as
denoting a permanent dwelling place, to which the party when
absent intends to return. Therefore a person who was permanently
residing in the Virgin Islands or in other terms permanently
domiciled there should be regarded as retaining that place of
residence or domicile until he has shown by his acts that he has
acquired another domicile, that is by actually taking up his abode
in some other place with the intention of remaining there.
It is thought that a Danish citizen who was physically absent
from the Islands on January 17, 1917, and who is applying for
protection as an American national, should before being accorded
the protection of the United States be required to show that: (1)
he was an actually bona fide resident of the Virgin Islands before
the annexation thereof by the United States; (2) that upon
leaving the Islands he had a definite intention to return, which
intention continued during his absence up to the date his
application for protection is made. As evidence of the intention
to return to the Islands evidence might be accepted of a permanent
connection with the Islands, the temporary nature of the absence,
the ownership of property and the payment of taxes in the Islands,
the presence in the Islands of family or relatives, and that no
fixed place of abode had been acquired elsewhere.
The Department of State to the Consul at Santo Domingo, Oct.
3, 1931, MS, Department of State, file 134 Virgin Islands/104.
E E P , who was born in the Virgin Islands in 1893 of parents
who were natives of the Islands, proceeded to Cuba on Dec. 13,
1916, where she continued to reside. The Department of State in
an instruction of Feb. 24, 1921, denied her application for a
passport for the purpose of visiting the Virgin Islands, but
instructed the Vice Consul at Antilla, Cuba, that he might issue
her an emergency passport if she convinced him that she intended
to return to the Islands for permanent residence. With reference
to the general question of the status of persons in the position
of Mrs. P , the Office of the Solicitor for the Department of
State, said in a memorandum of July 11, 1920:
* * * The decision of the Supreme Court in the Bosque case 209
U.S. 91 (1908) should, no doubt, be considered in deciding the
status of natives of Denmark proper, who claim American
nationality upon the ground that they were inhabitants of the
Virgin Islands on January 17, 1917, particularly if they were
physically present in Denmark on that date or within the period of
1 year thereafter. However, while the burden of proof is upon
such person to show that he had never ceased to be an inhabitant
of the Virgin Islands, the mere fact of temporary absence from the
Islands on January 17, 1917, or within the period of 1 year
thereafter, does not necessarily preclude such persons from
claiming American nationality. (MS. Department of State, file
130P5416; ibid. 134 Virgin Islands/243.)
Two decisions by the Immigration and Naturalization Service, Office
of Adjudications Review, are consistent with the view we have taken
here. Matter of A , A-5816008 (C.O., August 5, 1943) concerned a native
of the Virgin Islands, born in 1891, who left the Virgin Islands to live
in the Dominican Republic sometime before the date of cession, January
17, 1917. She continued to reside in the Dominican Republic until her
admission into the United States in 1922. She lived continuously in the
United States from 1922 until the day of the adjudication by the
Service, except for a visit to the Dominican Republic in 1935. She was
admitted to the United States in 1922 and again in 1935 as a United
States citizen. It was held that she acquired United States citizenship
by the act of June 28, 1932, as a native of the Virgin Islands who was
living in the United States at the time of the enactment of that law.
There is some discussion in the Service opinion about "a presumption of
changed nationality' against persons born within a ceded territory,
whether present or absent at the time of cession, but the actual
decision in this case turned upon the construction of the 1932 statute.
A second decision, Matter of C , 5/252 and 5/253 (C.O., May 2, 1944),
concerned a mother and daughter, born in the Virgin Islands in 1872 and
1902, who wished to be permitted to file petitions for naturalization
under section 321 of the Nationality Act of 1940. The father was born
in the Virgin Islands in 1873. The mother and daughter resided
continuously in the Virgin Islands until May 4, 1917, when they moved to
the Dominican Republic to join the father. They remained in the
Dominican Republic until 1934, when they were readmitted to the Virgin
Islands as United States citizens. The father died in the Dominican
Republic in 1934. It was decided by the Immigration and Naturalization
Service, Office of Adjudications, that the C s, mother and daughter,
acquired United States nationality at the time of cession in January
1917, because they were then living in the Virgin Islands, even though
they left that area before the year of option (the year during which the
declaration for preservation of Danish citizenship might be made) had
expired. However, they did not acquire United States citizenship under
either the acts of 1917 or 1932, because they were living outside of the
United States or United States controlled territory.
United States ex rel. Schwarzkopf v. Uhl, 137 F.(2d) 898 (C.C.A. 2,
1943), considered the subject of acquisition of territory and its
inhabitants by force and invasion and nationality changes resulting
therefrom. The court discussed some of the authorities, text and case,
and decided:
If the inhabitants remain within the territory their allegiance
is transferred to the new sovereign, American Insurance Co. v. 356
Bales of Cotton, 1 Pet. 511, 542 (1828), 7 L.Ed. 242. If they
have voluntarily departed before the annexation and have never
elected to accept the sovereignty of the new government, their
allegiance is not so transferred, Inglis v. Trustees of the
Sailor's Snug Harbor, 3 Pet. 99, 122, 123 (1830), 7 L.Ed. 617;
United States v. Repentigny, 5 Wall. 211, 260 (1866), 18 L.Ed.
627; Jones v. McMasters, 20 How. 8, 20, 15 L.Ed. 805; Boyd v.
Thayer, 143 U.S. 135, 162, 12 S.Ct. 375 (1892), 36 L.Ed. 103.
See also Halleck, Int. Law, 4th ed., II, 506 et seq.; Hackworth,
Digest of International Law, III, 346; Moore, Digest of
International Law, III, Sections 379, 380 (presenting American
treaty and diplomatic history in support of the view that only the
inhabitants who elect to remain change their allegiance; Van
Dyne, Naturalization, 275, 276 (confirming the treaty practice as
evidence of the American political and legal view).
There does not seem to be any legal distinction between the
principles applicable to changes of nationality as the result of an act
of war committed by one nation upon another and the principles
applicable to change of nationality as the result of acquisition of
territory by one nation from another by peaceful means. The court
decided that Schwarzkopf was not a German citizen, because he had left
Austria before the annexation of Austria by Germany in March 1938, and,
therefore, he should not be detained by the Department of Justice of the
United States as an alien enemy, a citizen of Germany, pursuant to the
act of July 6, 1798, as amended, 1 Stat. 577, 50 U.S.C.A. 21.
Schwarzkopf was born in Czechoslovakia, and therefore was not detainable
as a "native of Germany under the applicable law.'
In a companion case, United States ex rel. D'Esquiva v. Uhl, 137 F.(
2d) 903 (C.C.A. 2, 1943), the court held that a nativeborn Austrian who
left that country prior to the invasion of Austria by Germany did not
become a "citizen' of Germany, but the court held that he was detainable
as an alien enemy, because he was a "native' of Germany within the
phraseology and meaning of the statute.
It is our conclusion upon all the applicable case, text, and
administrative authority set forth above, that appellant did not acquire
United States nationality at the time of cession of the Virgin Islands
to the United States, because he was not an inhabitant of the Islands.
It is not held that he must have been actually physically present in the
Islands at the moment of cession to acquire United States nationality.
Nationality has been conceded to persons who were temporarily sojourning
abroad. It is expected, however, that such a person must return or must
have returned within a reasonable time to claim his new nationality and
must be able to establish that, even while absent, he was a bona fide
resident of the Virgin Islands, that he had a definite intention to
return, that his absence was only temporary, and that no fixed place of
abode had been acquired elsewhere. Appellant testified that he lived
and worked and made his home in the French West Indies from 1916 until
the present time. He is not able to meet any of the enumerated
requirements.
Neither can appellant claim United States citizenship under any of
the three laws which have been enacted granting citizenship to natives,
residents, and former residents of the Virgin Islands. He does not fall
within any of the classes enumerated in those statutes. On the
contrary, he falls within a class of persons specifically mentioned in a
Senate committee report as not having been covered by the law.
At time of birth in the Virgin Islands, appellant acquired Danish
citizenship. Whether or not he is eligible to receive an immigration
visa under the appropriate quota is a question for decision by the
consul to whom the appellant may apply for a visa.
Order: It is ordered that the appeal of the officer in charge of the
Immigration and Naturalization Service office for the Virgin Islands be
sustained and that the appellant be excluded as one who is not a citizen
or national of the United States.
(1) For fuller discussion of the historical aspects see 38 Op.Atty.
Gen. 525 (October 15, 1936); III, Digest of International Law,
Hackworth, 147; Matter of L , 56267/142, 3, I. & N. Dec. 719 (B.I.A.,
August 24, 1949) and Matter of S , 0300-160724, 3, I. & N. Dec. 870
(February 8, 1950).
(2) For fuller text of Senate Report see Matter of S , 0300-160724,
3, I. & N. Dec. 870, at 873.
Subversive organization: Communist Party of the United States -- Deportability under section 241(a)(1) of the Immigration and Nationality Act -- Evidence of membership prior to entry sufficient to prove excludability under the Act of October 16, 1918, as amended.
A charge under section 241(a)(1) of the Immigration and Nationality
Act that an alien who entered the United States in 1945 is deportable
because of his excludability under the law existing at the time of
entry, to wit, the Act of October 16, 1918, as amended, as a former
member of the Communist Party of the United States, does not require
specific evidence establishing that the Communist Party of the United
States was an organization advocating forcible overthrow of the
Government. Proof of the alien's membership in the Communist Party is
sufficient to sustain the charge. Deportability under section 241(a)(
1) of the Immigration and Nationality Act by reason of such membership
is established even though the entry occurred prior to the effective
date of legislation making members of the Communist Party, per se,
deportable and excludable.
Discussion: By order dated December 18, 1953, this Board dismissed
respondent's appeal from the order of the special inquiry officer
requiring respondent's deportation on the ground that he was deportable
under section 241(a)(1) of the Immigration and Nationality Act of 1952
as one excludable at the time of entry in 1945 under the act of October
16, 1918, as amended, as an alien who had been a member of the Communist
Party of the United States. Membership from 1933 to 1935 was
established.
The motion is for reopening and reconsideration on the ground, among
others, that the decision of the Board is contrary to the law as set
forth in Berrebi v. Crossman, 208 F.(2d) 498 (C.A. 5, 1953). We do not
believe Berrebi is controlling herein because there the Government
stipulated that the alien had entered the United States lawfully. This
is the keystone of the decision. In the instant case, the Government
has not stipulated that the alien's entry was lawful; in fact, it
argues that the entry is unlawful. Moreover, Berrebi involved the
meaning of a grammatical construction which is not involved herein.
Counsel also contends that there is no evidence in the record that
petitioner was a member of an excludable class in 1945 unless it be
shown that the Communist Party was during the period of his membership
(1933-35), an organization which engaged in proscribed activities.
Although this objection was not previously raised on appeal, we did
indicate in our order of December 18, 1953, our belief that it was
unnecessary to establish the nature of the Communist Party in this case.
Since counsel has raised the issue despite our previous statement, we
will add the following.
Deportation is sought under section 241(a) of the Immigration and
Nationality Act (Public Law 414, 82d Cong., 2d sess.) which provides as
follows:
Any alien in the United States * * * shall, upon the order of
the Attorney General, be deported who --
(1) at the time of entry was within one or more of the classes
of aliens excludable by the law existing at the time of such
entry; * * *.
As pertinent to this discussion, the law existing at the time of
respondent's entry in 1945 provided for the exclusion of an alien who at
any time had been a member of an organization that sought the overthrow
by force and violence of the Government of the United States (act of
October 16, 1918, as amended, 40 Stat. 1012, 54 Stat. 673). It did not
provide for the deportation of a Communist as such.
Counsel contends that there is no evidence of record that the
respondent was a member of an organization which sought to overthrow the
Government by force and violence and that the proceeding should
therefore be terminated. We found that the necessary proof was offered
by the Service when it established that the respondent was a member of
the Communist Party. Counsel argues that to accept Communist Party
membership as proof of membership in an organization seeking the
overthrow of this Government by force and violence incorporates
subsequent legislation and makes section 241(a)(1) a denial of due
process of law. No authority for this contention is cited; we believe
it to be without foundation.
We believe that the function of section 241(a)(1) is to direct us to
the law which must be considered in determining whether the respondent
was excludable and, consonant with the principles of due process, to
determine if the alien falls within a class barred by that law. That is
its full force. It no more requires us to utilize any particular
evidence to establish the fact of inadmissibility than it requires us to
give the alien the board of special inquiry hearing which then existed
to determine admissibility of aliens. It does not require us to return
to the date of his entry and erase from our minds what has occurred
between the date of entry and the time we make our decision. Section
241(a)(1) requires us to now determine if the alien was inadmissible at
the time he entered. It does not specify the nature of proof which is
necessary to satisfy that requirement. We believe that proof that one
was a member of the Communist Party is satisfactory proof that he was a
member of an organization which sought the overthrow of the Government
by force and violence. We believe that it is satisfactory proof because
Congress had indicated the weight and sufficiency to be given such proof
is such that deportation may be ordered.
The history of the laws relating to subversives makes this clear.
Congress early indicated its belief in the necessity of ridding the
country of the presence of persons who are members of an organization
which seeks the overthrow of the Government by force and violence. Many
changes were made in an effort to expedite the removal and exclusion of
subversives. The inability to deport Communists without entering into
prolonged and difficult matters of proof was found unsatisfactory by
Congress. Thus, in the 1949 Senate Report accompanying the bill which
became the Internal Security Act of 1950 (64 Stat. 987, 1006) is found a
review of the then existing law, followed by this statement:
* * * While Congress has clearly proscribed classes of aliens
which are to be excluded from admission or deported after
admission, there is the obvious difficulty of establishing that
certain aliens or organizations do advocate overthrowing the
Government by force or violence. It is inherent in the tactics of
such persons and organizations that their real intentions be
concealed under an aura of legitimacy in order to accomplish their
purpose. Thus, though it may be common knowledge that certain
organizations advocate such beliefs, satisfactory proof of that
position offers a formidable obstacle. The evidence developed by
the subcommittee should remove any doubt about the Communist
Party's advocating the overthrow of our Government by force or
violence in order to consummate its plans of a world-wide
Communist totalitarian dictatorship. Yet, membership in the
Communist Party, without positive proof that it so advocates the
overthrow of government by force and violence, is insufficient
grounds for deporting such an alien member. (S. Rept. 2230, 81st
Cong., 2d sess., pp. 24-25.)
In 1950, Congress rewrote the laws relating to the control of
subversives (Internal Security Act of 1950). Based on findings it set
forth in section 2 of that act to the effect that the world Communist
movement "in its origins, its development, and its present practice,'
was devoted to the overthrow of non-Communist governments by force,
violence and other illegal means, it specifically made members of the
Communist Party, per se, deportable and excludable.
When Congress did this, it in effect said that sufficient evidence
had then been accumulated establishing that the Communist Party was an
organization that sought to overthrow the Government by force and
violence so that when membership in the Communist Party was the basis
for deportation proceedings, the mandate imposed by the courts requiring
the Government to establish the nature of the Communist Party in each
and every proceeding was no longer necessary, and that mere proof of
membership in the Communist Party was sufficient to sustain deportation
or exclusion. Alien Communists were made deportable "because of
Congress' understanding of their attitude toward the use of force and
violence' (Carlson v. Landon, 342 U.S. 524, 541 (1952)).
The action in listing Communist Party members as deportable and
excludable was congressional declaration of the fact that the Communist
Party was an organization seeking the overthrow of the Government by
force and violence. It was no more than the elimination of the burden
of introducing over and over again evidence as to the Party's nature and
activities. It dispensed with the need for proof of the nature of the
organization (Galvan v. Press, 347 U.S. 522 (1954); Matter of D ,
A-7808001, 4, I. & N. Dec. 745; Matter of K , A-5277515, 5, I. & N.
Dec. 49; see Harisiades v. Shaughnessy, 342 U.S. 580, 595-596 (1952)).
The provisions of the 1950 act were carried over in the codification
of the immigration and nationality laws which became effective December
24, 1952 (Immigration and Nationality Act, supra). The codification
made a present or past member of the Communist Party excludable if he
attempted to enter the United States (sec. 212(a)(28)(C)), and made him
deportable if he became a Communist Party member after entry (sec. 241(
a)(6)(C)). As to those not otherwise covered, i.e., those who had been
members of the Communist Party prior to their entry and who had
succeeded in entering the United States undetected prior to the
Immigration and Nationality Act, provision was made for their
deportation in the catchall clause which has been previously set forth
(sec. 241(a)(1)). /1/
In the codification Congress expressed no specific desire to change
the nature of proof required to deport Communist Party members, and in
fact expressly cautioned in at least two instances against construing
anything said in the Immigration and Nationality Act as an expression by
Congress that the Communist Party does not advocate the overthrow of the
Government by force and violence (secs. 212(a)(28)(C) and 241(a)(
6)(C)).
The codification was not preceded by any judicial pronouncements
questioning the constitutionality or correctness of the finding by
Congress, and we know of no demand by legislative or administrative
bodies indicating the desirability of changing the congressional action.
It proved an effective aid to deportation of subversives. There was no
reason for a change.
There is no evidence that Congress desired a change or intended it.
We do not believe that any change was made in the codification. Proof
that one was a member of the Communist Party remained a satisfactory
basis for finding that the alien was a member of an organization that
sought the overthrow of the Government by force and violence. It made
no change as to those who sought entry or became members after the
codification. We can see no reason why a change would be desired for
those who were Communist Party members before they came to the United
States and entered before the codification.
An illustration of the incongruous result which would follow if
counsel's interpretation were accepted supports our conclusion. Under
the present act, an alien who had been a member of the Communist Party
of U.S.S.R. in 1947 can be barred from entry without any proof as to the
aims of the Communist Party of U.S.S.R. (sec. 212(a)(28)(C)). Now, if
the same individual had succeeded in entering the United States in 1948
and had been apprehended after the Immigration and Nationality Act
became effective, the charge in deportation proceedings would be based
on the fact that at time of entry he was inadmissible as one who had
been a member of an organization seeking overthrow of the Government by
force and violence (sec. 241(a)(1) and act of October 16, 1918, as
amended, supra).
Under counsel's contention, the proof which would be sufficient to
bar the alien today applying for admission, would not be sufficient to
deport him, even though membership during the same period in the same
organization was involved. It would, under counsel's contention, become
necessary for the Government to produce expert witnesses and documentary
evidence of the nature of the Communist Party of U.S.S.R. in the second
case. /2/ We do not find in the general language of the catchall
clause, relating as it does to many different classes of aliens, the
command of Congress that such a paradoxical situation be created. In
the absence of express language requiring the construction that counsel
requests, we will not assume it. This would be our position even if
Congress had not expressly stated that nothing in the codification was
to be taken as indicating the Communist Party did not advocate the
overthrow of this Government by force and violence.
In brief summary, we state that we do not seek to administratively
amend the law existing at the time of respondent's entry. We find on
the basis of the proof supplied in this case that the conditions
required by that law exist and that the alien was inadmissible at the
time of entry by reason of membership in an organization seeking the
overthrow of this Government by force and violence.
Moreover, if the basis on which we have rested our decision had not
been available to us, we would have taken administrative note that the
Communist Party was one devoted to the overthrow of the Government by
force and violence. The mass of evidence which has been accumulated,
the pronouncements of Congress and other legislatures, the courts, and
our experiences in deportation and exclusion proceedings involving
membership in the Communist Party, justify such a conclusion (H. Rept.
2290, 71st Cong., 3d sess., pp. 15, 65, 66; H. Rept. 153, 74th Cong.,
1st sess., pp. 12, 21; S. Rept. 2230, 81st Cong., 2d sess., pp. 10-12,
16, 24-25; Skeffington v. Katzeff, 277 Fed. 129 (C.C.A. 1, 1922)
(covering the period 1919-20); Antolish v. Paul, 283 Fed. 957 (C.C.A.
7, 1922) (early 1920's); Ungar v. Seaman, 4 F.(2d) 80, 81 (C.C.A. 8,
1924) (1912-20); Ex parte Jurgans, 17 F.(2d) 507, 511 (D. Minn., 1927)
(early (1920's); Ex parte Vilarino, 50 F.(2d) 582 (C.C.A. 9, 1931)
(1926-29); Murdoch v. Clark, 53 F.(2d) 155 (C.C.A. 1, 1931) (the
1920's); United States ex rel. Yokinen v. Commissioner of Immigration,
57 F.(2d) 707 (C.C.A. 2, 1932) (the late 1920's); Kjar v. Doak, 61 F.(
2d) 566 (C.C.A. 7, 1932) (the late 1920's); In re Saderquist, 11 F.
Supp. 525 (D. Maine), aff'd 83 F.(2d) 890 (C.C.A. 1, 1935) (1930-35);
United States ex rel. Harisiades v. Shaughnessy, 187 F.(2d) 137 (C.A.
2, 1951) (1925-39), aff'd 342 U.S. 580 (1952); United States v.
Dennis, 183 F.(2d) 201 (C.A. 2, 1950) (1945-48), aff'd 341 U.S. 494
(1950); Quattrone v. Nicolls, 210 F.(2d) 513 (C.A. 5, 1954); Martinez
v. Neelly, 197 F.(2d) 462 (C.A. 7, 1952), aff'd 344 U.S. 916 (1953);
Block v. Hirsh, 256 U.S. 135 (1921); American Communications
Association v. Douds, 339 U.S. 382 (1950); Carlson v. Landon, supra;
Adler v. Board of Education, 342 U.S. 485 (1952); Heikkila v. Barber,
345 U.S. 229 (1953); Galvan v. Press, supra). (See Milasinovich v.
The Serbian Progressive Club, 369 Pa. 26, and Albert Appeal, 372 Pa.
13, in which the Supreme Court of Pennsylvania held that judicial notice
may be taken of the fact that the Communist Party advocates the
overthrow of the Government by force. In the latter case, the court
stated that (372 Pa. at 20-21):
It would seem almost an absurdity of legal procedure to
continue to submit to various juries in individual cases a
question so readily and authoritatively determinable from the mere
perusal of the writings of the acknowledged founders and
protagonists of the Communist movement * * *.)
Constitutional objections are not a proper matter for our
consideration (Matter of L , A-4942707, 4, I. & N. Dec. 556). The
motion will be denied.
Order: It is ordered that the motion be and the same is hereby
denied.
(1) The catchall clause covers also the alien who was inadmissible by
reason of the commission of crime; likelihood of becoming a public
charge; affliction with loathsome and contagious disease; mental or
other specified affliction; polygamists; prostitutes; etc.
(2) Of course, the fact that one proceeding was in exclusion and the
other in deportation could not justify this difference because even in a
deportation proceeding under the Immigration and Nationality Act brought
against one who had become a member after his entry, mere proof of
membership would be sufficient (sec. 241(a)(6)(C)).
Status -- Cancellation of naturalization procured under act of Aug. 16, 1951 (P.L. 114, 82d Cong., 1st session) must be by formal revocation in accordance with section 338 of Nationality Act of 1940.
The United States citizenship of an individual naturalized under act
of August 16, 1951 (P.L. 114, 82d Cong., 1st session) cannot be
collaterally attacked on the ground that prior to naturalization she
acquired Italian nationality through acquisition of Italian nationality
by her father on July 1, 1914, and lost United States citizenship by
failure to return to United States within two years after effective date
of Nationality Act of 1940. Public Law 114 provides that illegal or
fraudulent procurement of naturalization thereunder shall be subject to
cancellation in same manner as provided in section 338 of Nationality
Act of 1940 (court procedure for revocation of naturalization). In
absence of formal revocation of naturalization, the individual is deemed
to be a citizen of the United States and eligible to file a visa
petition for nonquota status in behalf of her husband and minor
children.
Discussion: The matter comes forward on appeal from the order of the
District Director, Chicago District, dated May 24, 1954, denying the
visa petition on the ground that the petitioner is not a citizen of the
United States and is not eligible to file a visa petition for nonquota
status on behalf of her husband and minor children. The decision
indicates that the petitioner acquired Italian nationality through the
acquisition of Italian nationality by her father on July 1, 1914, and
lost United States citizenship by failure to return to the United States
within 2 years after the effective date of the Nationality Act of 1940.
A communication dated April 22, 1954, from the Department of State
indicates that the petitioner voted in political elections held in Italy
on April 18, 1948, and had not performed any other expatriating act.
The communication sets forth that the petitioner was eligible for the
benefits of the act of August 16, 1951 (Public Law 114, 82d Congress,
1st session) and was administered the oath of repatriation on January
11, 1952.
The act of August 16, 1951 (Public Law 114, 82d Cong., 1st sess.)
provides that a person who, while a citizen of the United States, lost
citizenship by reason of having voted in the political election or
plebiscite held in Italy on June 2, 1946, or on April 18, 1948, and who
had not subsequent to such voting committed any act which, had he
remained a citizen would have operated to expatriate him, may be
naturalized by taking an oath of repatriation before any naturalization
court or before any diplomatic or consular officer of the United States
abroad. The act further provides that the illegal or fraudulent
procurement of naturalization thereunder shall be subject to
cancellation in the same manner as provided in section 338 of the
Nationality Act of 1940. Section 338 of the Nationality Act of 1940
provides a court procedure for revocation of naturalization.
It accordingly appears that the petitioner has been duly naturalized
in accordance with the act of August 16, 1951 (Public Law 114) and that
the attempt to collaterally attack or impeach this naturalization is
ineffective inasmuch as Public Law 114 provides that the revocation of
such naturalization must be in accordance with the provisions of section
338 of the Nationality Act of 1940. This section is the exclusive
procedure for cancelling citizenship on the score of fraudulent or
illegal procurement. /1/ In the absence of any formal revocation of the
outstanding order of naturalization of January 11, 1952, under Public
Law 114, the petitioner must be deemed to be a citizen of the United
States and eligible to file a visa petition.
Order: It is ordered that the visa petition be and the same is
hereby approved for nonquota status on behalf of the beneficiaries.
(1) Bindczyck v. Finucane, 342 U.S. 76 (1951). Editor's Note: See
also sec. 402(j) of the Immigration and Nationality Act (8 U.S.C. 1435
footnote) authorizing cancellation in the same manner as provided in
section 340 of the Immigration and Nationality Act (8 U.S.C. 1451).
Pardon -- Section 241(b) of Immigration and Nationality Act -- Effective when granted by Governor of Hawaii.
Since the word "State' is defined in section 101(a)(36) of the Immigration and Nationality Act as including Hawaii, a full and unconditional pardon granted by the Governor of Hawaii for criminal offenses is effective under section 241(b) of the act.
DEPORTABLE:
Act of 1952 -- Section 241(a)(4) -- At any time after entry,
convicted of two crimes involving moral turpitude not arising out of a
single scheme of criminal misconduct -- Sexual intercourse with a female
under 16 years; and lascivious conduct.
Discussion: This case is before us on certification of the special
inquiry officer dated April 7, 1954, terminating the proceedings.
Respondent, a 74-year-old native and citizen of Japan, last entered the
United States on December 31, 1899, at Honolulu, T.H.
On April 4, 1945, respondent was convicted on a plea of guilty in the
Circuit Court, 3d Judicial Circuit, Territory of Hawaii, of two
violations of section 6243, Revised Laws of Hawaii, 1935. /1/ These
offenses were committed on March 1, and April 30, 1944, when respondent
had sexual intercourse with a female under 16 years, who was the wife of
another. He was sentenced to a maximum of 10 years' imprisonment at
Oahu Penitentiary, Territory of Hawaii. This sentence was suspended and
5 years' probation ordered.
On May 17, 1951, respondent was convicted on a plea of guilty in the
District Court, Southern Hilo, Territory of Hawaii, of a violation of
section 11673, Revised Laws of Hawaii, 1945 (as amended by sec. 1 of Act
26 of Session Laws of Hawaii for 1949). /2/ This offense committed on
April 12, 1951, consisted in lascivious conduct as a result of
respondent's having sexual intercourse with a 17-year-old female and
paying her $7 for this act. Respondent was sentenced to serve 6 months
in jail and pay a fine of $100. The sentence of imprisonment was
suspended with 13 months' probation being ordered.
On March 3, 1954, respondent received a "free and full' pardon for
these crimes from the Acting Governor of Hawaii. The pardoning power of
the Governor of Hawaii stems from the following statutory sources:
48 U.S.C. 1453. Executive Power. -- The executive power of
each Territory shall be vested in a governor, who shall hold his
office for 4 years, and until his successor is appointed and
qualified, unless sooner removed by the President. He shall
reside in the territory for which he is appointed, and shall be
commander in chief of the militia thereof. He may grant pardons
and reprieves, and remit fines and forfeitures, for offenses
against the laws of the territory for which he is appointed, and
respites for offenses against the laws of the United States, till
the decision of the President can be made known thereon. He shall
commission all officers who are appointed under the laws of such
territory, and shall take care that the laws thereof be faithfully
executed (R.S. 1841).
Section 66. Chapter III, Organic Act of Hawaii. -- That the
executive power of the Governor of the Territory of Hawaii shall
be vested in a governor, who * * * may grant pardons or reprieves
for offenses against the laws of said territory and reprieves for
offenses against the laws of the United States until the decision
of the President is made known thereon. (As am. July 9, 1921, 42
Stat. at L., c. 42, s. 303; 48 U.S.C. 531.)
Section 3965. Revised Laws of Hawaii, 1945. -- Each board of
prison inspectors and the board of paroles and pardons shall
consider every application for a pardon which may be referred to
it by the governor and shall furnish the governor, as soon as may
be after such reference, all the information possible concerning
the prisoner, together with a recommendation as to the granting or
refusing of such pardon. (L. 195, c. 41, s. 5, am. imp. L. 1911,
c. 5, s. 2; R.L. 1925, s. 1545; R.L. 1935, s. 6410, 6419.)
The special inquiry officer held that while section 241(b) does not
specifically mention a pardon by a territorial governor, Congress
intended to include the territories in the phrase "several States' and
that deportation under section 241(a)(4) is rendered impossible.
Section 241(b) provides as follows:
The provisions of subsection (a)(4) respecting the deportation
of an alien convicted of a crime or crimes shall not apply (1) in
the case of any alien who has subsequent to such conviction been
granted a full and unconditional pardon by the President of the
United States or by the Governor of any of the several States * *
*.
Since the word "State' is defined in section 101(a)(36) as including
Hawaii, a pardon by a territorial governor is effective under section
241(b), if it is a full and unconditional one. In the instant case, the
pardon granted respondent is by its very terms a free and full pardon
for the offenses which are the basis for the ground of deportability.
Because the pardon has the effect of nullifying the basis of
deportation, the proceedings should be terminated. The order of the
special inquiry officer is accordingly affirmed.
Order: It is hereby ordered that the order of the special inquiry
officer terminating the proceedings be affirmed.
(1) Sexual intercourse with a female under 16. Whoever shall be
convicted of having sexual or carnal intercourse with any female under
the age of 16 years, not his lawful wife, shall be imprisoned at hard
labor for not more than 10 years. (P.C. 1869, c. 13, s. 9; am. L.
1907, c. 32, s. 1; am. L. 1913, c. 27, s. 1; R.L. 1925, s. 4440; am.
L. 1925, c. 46, s. 1.)
(2) Lascivious conduct, etc. -- Any man or woman who is guilty of
lewd conversation, lascivious conduct, or libidinous solicitations, or
who solicits, induces, entices or procures another to commit an act of
lewdness, assignation or prostitution with himself or herself, shall be
punished by imprisonment of not more than 1 year or by a fine of not
exceeding $1,000, or by both such imprisonment and fine. (P.C. 1869, c.
13, s. 8; R.L. 1925, s. 4447; R.L. 1935, s. 6253; am. L. 1941, c.
88, s. 1; am. L. 1949, c. 26, s. 1.)
Evidence -- Blood testing -- Nonquota status under section 101(a)( 27)(A) of Immigration and Nationality Act.
(1) Where the petitioner claims citizenship through a United States citizen father and the evidence indicates incompatibility of blood between the petitioner and his alleged parents, the visa petition (for nonquota status on behalf of the petitioner's wife) will be denied because of the petitioner's failure to establish his claimed relationship to the person through whom he asserts citizenship.
(2) Although visa petition proceedings differ from exclusion and
deportation proceedings, nevertheless blood testing evidence and the
background material on which the conclusion was based should be placed
in the record in form adequate to satisfy procedural requirements.
Discussion: The District Director for the Immigration and
Naturalization Service at New York refused to approve a visa petition in
behalf of the petitioner's wife on the ground that petitioner has failed
to establish his claim to United States citizenship through his father,
inasmuch as the blood-grouping tests made of himself and his alleged
father demonstrate incompatibility of blood. The petitioner appeals
from this decision.
A test of the blood of petitioner was performed by Dr. Leon Sussman,
a recognized authority in New York in the field of blood testing. This
test demonstrated that petitioner has O group blood. A blood test made
at San Francisco by the United States Public Health Service hospital of
the blood of the petitioner's alleged father demonstrates that the
latter person had AB group blood. The adjudicator for the Immigration
and Naturalization Service, relying upon a publication entitled Blood
Grouping Tests in the New York Courts by Alexander S. Wiener, found that
on the basis of these tests the petitioner cannot possibly be the son of
the United States citizen through whom he claims his citizenship. This
publication states that two parents, one of whom has AB blood and one of
whom has O blood cannot have a child with either O or AB blood.
Three persons claiming to be brothers of petitioner and one person
claiming to be a sister of petitioner, all claiming to be the sons and
daughter of petitioner's alleged father, and accompanied by their
alleged mother, all submitted to blood tests in Hong Kong on February 8,
1952. The alleged sons and daughter are all applicants for travel
documents to enter the United States as citizens. That is why the blood
grouping for the alleged mother is available to us at this time. The
alleged mother has O blood and one of the alleged brothers also has O
blood. As stated above, according to the accepted tables for the
inheritance of blood properties, neither petitioner nor this brother
with O blood can be the blood sons of these alleged parents.
The manner in which the evidence of the results of the blood tests
and the conclusions to be drawn from those tests were placed in this
record does not satisfy the standards we have required in deportation
and exclusion cases. However, this is neither of those proceedings,
being simply a petition for a privilege, and we will make a finding on
the basis of this record as it now stands. However, if there are other
proceedings to follow, in order to satisfy the evidentiary requirements,
even of administrative proceedings, it will be necessary that the
blood-testing evidence and the background material on which the
conclusions are based be placed in the record in form adequate to
satisfy procedural requirements.
In view of counsel's argument that petitioner and his father lived
together for 15 years in China before petitioner entered this country in
1936, it should be mentioned that when petitioner first applied for
admission into the United States in 1936 the board of special inquiry at
San Francisco denied him admission on the ground that he had not
satisfactorily established the claimed relationship to the alleged
father. That finding was reversed by the Board of Review on May 18,
1937.
Counsel relies primarily in his brief and in his oral argument on the
common law presumption of legitimacy. We have already held that that
presumption has no place in immigration proceedings, where the issue is
one, not of legitimacy but of identity (Matter of L F F , 0300-423162,
February 25, 1953. 5, I. & N. Dec. 149; Matter of D W O and D W H ,
0300-419637 and 0300-420204, May 14, 1954 (twice before the Board), 5,
I. & N. Dec. 351). Certainly such a presumption has no place in a visa
petition proceeding, where the issuance of a visa is based upon proof of
the claimed relationship.
Since petitioner cannot establish his relationship to the claimed
United States citizen father, he cannot secure the issuance of a visa to
his wife as the nonquota wife of a United States citizen.
Order: It is ordered that the appeal be dismissed.
Preference quota status -- Section 203(a)(4) of Immigration and Nationality Act -- Sister -- Parents never married.
To establish eligibility for preference quota status as the sister of
a United States citizen in accordance with section 203(a)(4) of the
Immigration and Nationality Act, it is necessary that the parties be
either legitimate full sisters or legitimate sisters of the half blood.
Therefore, the relationship of "sister' does not exist between offspring
of the same parents where such parents were never lawfully married.
Discussion: The petitioner, a citizen of the United States, seeks a
preference under section 203(a)(4) on behalf of the beneficiary, her
alleged sister. Section 203(a)(4) grants a preference to among others,
brothers and sisters of citizens of the United States.
The record establishes that the petitioner and the beneficiary are
full natural sisters, the offspring of parents who apparently were never
married. This latter fact is established by an affidavit of the
petitioner executed April 29, 1953, before a notary public in which she
states that her mother and father were never married in the church and,
therefore, their marriage was never recognized by the state.
It, therefore, appears from the facts of record that the petitioner
and the beneficiary are illegitimate sisters of the full blood.
However, in order to be eligible for the preference set forth in section
203(a)(4), it is necessary that the parties be either legitimate full
sisters or legitimate sisters of the half blood. /1/
Accordingly, it is necessary to deny the visa petition. It is noted
that the affidavit executed by the petitioner regarding the absence of
marriage of her parents is somewhat ambiguous inasmuch as it leaves room
for a construction that the parties may have been married outside the
church. In the event there was in fact a ceremonial marriage celebrated
between the parents, the matter may be presented for reconsideration
upon proof of such ceremonial marriage.
Order: It is ordered that the appeal be and the same is hereby
dismissed.
(1) See unreported Matter of L , VP 3-42620 (April 8, 1954). See
also: Matter of M , 0300-433026, 5, I. & N. Dec. 120 (Atty. Gen.,
1953); Matter of A , VP 6-2026, 5, I. & N. Dec. 272 (Atty. Gen., 1954).
Editor's Note: See Matter of C , VP 3-70539-I, Interim Decision No.
717, which modifies the decision in the instant case so as to include
within the definition of brother or sister illegitimates born to a
common mother.
Voluntary departure, section 244(e) of Immigration and Nationality Act -- Good moral character, section 101(f)(6) of Immigration and Nationality Act.
An alien, who falsely alleges in his application for an extension of temporary stay filed subsequent to December 24, 1952, that he is not gainfully employed, is not precluded from establishing good moral character within the meaning of section 101(f)(6) of the Immigration and Nationality Act. Such an allegation is not false testimony within the meaning of the section because applications for extension of temporary stay submitted subsequent to December 24, 1952, are not required to be under oath. Therefore, such an individual may be found eligible for voluntary departure under section 244(e) of the Act. (Note Matter of Z , E-085577, 5, I. & N. Dec. 514, re similar allegation made prior to December 24, 1952.)
CHARGE:
Warrant: Immigration and Nationality Act -- Failed to maintain
status -- Visitor for pleasure.
Discussion: This case comes forward on appeal from an order entered
by the special inquiry officer on April 8, 1954, directing that the
respondent be deported from the United States pursuant to law on the
charge stated in the warrant of arrest. The respondent, a 26-year-old
single female, native and citizen of Guatemala, has resided continuously
in the United States since her admission at Laredo, Tex., on August 28,
1953, as a temporary visitor for pleasure to February 28, 1954. She was
granted an extension of temporary stay to August 28, 1954.
The record reflects the respondent accepted gainful employment at a
department store in New Orleans, La., during November 1953. She has
continued to be employed by the aforementioned store as a clerk since
November 1953. The respondent's testimony reveals that she executed an
application for an extension of temporary stay at the New Orleans, La.,
office of the Service and that she stated therein she was not employed.
The aforementioned application for an extension of stay was executed and
submitted on February 27, 1954. The record clearly shows that the
respondent is subject to deportation on the charge stated in the warrant
of arrest.
The special inquiry officer has concluded that the respondent has not
established good moral character for at least 5 years immediately
preceding her application for voluntary departure. Respondent's
testimony shows that she knew that she would not have been granted the
extension of temporary stay if she had told that she was employed. The
respondent on appeal requested that she be permitted to depart
voluntarily from the United States, at her own expense.
The special inquiry officer relies upon the provisions of section
101(f)(6) to sustain his conclusion that the respondent has not
established good moral character for the period required by statute.
Section 101(f)(6) provides that no person shall be regarded as, or found
to be, a person of good moral character, who, during the period for
which good moral character is required to be established, is, or was one
who has given false testimony for the purpose of obtaining any benefits
under the Immigration and Nationality Act. Since December 24, 1952, it
has not been necessary to subscribe and swear to applications for
extension of temporary stay. Testimony is the evidence given by a
competent witness, under oath or affirmation, as distinguished from
evidence derived from writings, and other sources (Edelstein v. United
States, 149 Fed. 636). In view of the foregoing, it cannot be found
that the respondent has given false testimony for the purpose of
obtaining any benefits under this act. At most, she has merely made a
false statement with respect to her activities from November 1953 up
until the time she made application for extension of temporary stay.
For the reasons stated we conclude that the provision of the statute
cited does not preclude a finding of good moral character in the instant
case. This Board held in the Matter of B , 56130/885, 1, I. & N. Dec.
611, that the term good moral character is elusive and difficult of
definition; that good moral character is not moral excellence and it is
not destroyed by a single lapse. Rather, it is a concept of a person's
natural worth derived from the sum total of all his actions in the
community.
Accordingly, we find the respondent is a person of good moral
character. We will, therefore, direct that the case be remanded to the
Service for further consideration of the respondent's application
requesting that she be permitted to depart voluntarily from the United
States. Accordingly, the following order will be entered.
Order: It is ordered that the case be remanded to the special
inquiry officer for the purposes stated in the foregoing opinion.
Fine -- Section 273 of Immigration and Nationality Act.
An accredited diplomatic officer classifiable as a nonimmigrant under section 101(a)(15)(A)(i) of the Immigration and Nationality Act is required to present a valid nonimmigrant visa when he applies for admission to the United States. Therefore, a penalty under section 273 of that act is incurred for bringing to the United States such accredited diplomatic officer and members of his household not in possession of valid nonimmigrant visas, even though the requirement for such visas is waived after their arrival and exclusion, since it is the responsibility of the transportation company through its representative to ascertain the admissibility of passengers before embarkation.
BASIS FOR FINE:
Section 273 -- Immigration and Nationality Act (8 U.S.C., section
1323).
Discussion: This matter is before us by reason of an appeal from the
decision of the District Director of Immigration and Naturalization, New
York, N.Y., bearing date March 18, 1954, wherein fine in the amount of
$5,000, $1,000 for each alien involved, was imposed upon the French
Line, agents for the aforementioned vessel which vessel arrived at New
York on October 1, 1953, from Le Havre, France, for violation of section
273 of the Immigration and Nationality Act (8 U.S.C., sec. 1323).
The specific violation complained of is bringing to the United States
the five alien passengers as aforesaid who were not in possession of
unexpired visas as required by section 212(a)(26) of the Immigration and
Nationality Act (8 U.S.C., section 1182). That section provides:
Except as otherwise provided in this Act, the following classes
of aliens * * * shall be excluded from admission to the United
States:
(26) Any nonimmigrant who is not in possession of * * * at the
time of application for admission a valid nonimmigrant visa * * *.
8 C.F.R., section 212.1 provides documentary requirements for
nonimmigrants:
Except as otherwise provided in the Immigration and Nationality
Act * * * an alien * * * who applies for admission to the United
States as a nonimmigrant shall present a valid unexpired
nonimmigrant visa issued to him under the nonimmigrant
classification in which he seeks admission, and an unexpired
passport valid for at least the period set forth in section 212(
a)(26) of the Immigration and Nationality Act * * *.
Section 101(a)(15) of the Immigration and Nationality Act defines the
term "immigrant' as "every alien except an alien who is within one of
the following classes of nonimmigrant aliens --' (A)(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.'
The record in this case shows that Baron L D was reported as the
Colonial Attache of the Belgian Embassy and he was accompanied by his
wife, A , their daughter, E , and their son, P , as well as a male
domestic servant, A M R .
On the occasion of application it would appear that these persons
were in possession of diplomatic passports but none had in his
possession an unexpired visa and apparently no application was made for
such documents because it was the understanding of the head of this
family that arrangements with respect thereto had been completed by
Cook's Travel Agency, almost certainly by the Department of External
Affairs of his government.
Whatever may be the reason for lack of this visa for each individual
member of the family and household, it is the responsibility of the
transportation company through its representative to ascertain the
admissibility of passengers before embarkation.
Following arrival and following exclusion visas were waived by the
Department of State and these aliens were permitted to proceed to their
destination.
The principal contention on the part of counsel in behalf of the
appellants is that the position of the male head of this group be
considered in connection with the provisions of section 101(a)(15)(A)(
i) of the Immigration and Nationality Act because he is an accredited
diplomatic officer of the Sovereignty of Belgium and that he possessed
and still possesses the same rights, privileges and immunities as would
his government for the transaction of its diplomatic business abroad.
It is further averred that not only does the act give special
attention to diplomats, but that it is common knowledge that the
diplomatic representative of a foreign government is, broadly speaking,
inviolable of person.
Counsel further contends that the type of visa herein referred to is
not that type which Congress intended to be subject to the penalties of
section 273(a) of the Immigration and Nationality Act, (supra).
The attorney also states that the breach, if there was a breach, of
the act, was a most technical one and because thereof the carrier is
exposed to a substantial penalty because the visa was in fact granted in
New York instead of Brussels.
Counsel for the Government argues that the law was violated and that
penalty obtains.
Section 102 of the Immigration and Nationality Act (8 U.S.C., section
1102) provides:
Except as otherwise provided in this Act, for so long as they
continue in the nonimmigrant classes enumerated in this section,
the provisions of this Act relating to ineligibility to receive
visas and the exclusion or deportation of aliens shall not be
construed to apply to nonimmigrants --
(1) within the class described in paragraph (15)(A)(i) of
section 101(a), except those provisions relating to reasonable
requirements of passports and visas as a means of identification
and documentation necessary to establish their qualifications
under such paragraph (15)(A)(i), and, under such rules and
regulations as the President may deem to be necessary, * * *.
Title 22, C.F.R., section 41.30(a) provides as follows:
An alien applying for a nonimmigrant visa under the provisions
of section 101(a)(15)(A) * * * of the act shall be required to
establish to the satisfaction of the consular officer that he is
an accredited official or employee of a foreign government
recognized de jure by the Government of the United States, and
that he is acceptable to the President or the Secretary of State,
or that he is a member of the immediate family of such official or
employee.
8 C.F.R., section 214a.1 provides in part as follows:
Whenever an alien who applies for admission to the United
States as a nonimmigrant of one of the classes described in
section 101(a)(15)(A) of the Immigration and Nationality Act
presents to the examining immigration officer at a port of entry
in the United States a valid unexpired nonimmigrant visa duly
issued to him by a consular officer under such classification, the
immigration officer shall accept the consular officer's
classification of the alien and admit the alien, if he is
otherwise admissible to the United States. * * *
Section 273 of the Immigration and Nationality Act (8 U.S.C., section
1323) provides:
It shall be unlawful for any person, including any
transportation company, or the owner, master, commanding officer,
agent, charterer, or consignee of any vessel * * * to bring to the
United States from any place outside thereof * * * any alien who
does not have an unexpired visa, if a visa was required under this
Act or regulations issued thereunder.
If it appears to the satisfaction of the Attorney General that
any alien has been so brought, such person, or transportation
company, or the master, commanding officer, agent, owner,
charterer, or consignee of any such vessel * * * shall pay to the
collector of customs of the customs district in which the port of
arrival is located the sum of $1,000 for each alien so brought * *
*.
Thus, from the regulations hereinabove set forth it is established
adequately that visas were required of these passengers and the absence
thereof was easily ascertainable by a careful scrutiny of the passports
presented by these prospective passengers.
We have carefully considered all of the evidence of record, as well
as representation of counsel on both sides, and it is our conclusion
that the evidence of record establishes a violation of section 273 of
the Immigration and Nationality Act (8 U.S.C., sec. 1323) and it,
therefore, becomes necessary to dismiss the appeal.
Order: It is ordered that the appeal from the decision of the
District Director of Immigration and Naturalization, New York, New York,
bearing date March 18, 1954, be and the same is hereby dismissed.
Status -- Citizen under section 1994 of the Revised Statutes -- Philippine national, racially Chinese.
A native of the Philippine Islands, racially Chinese, who became a United States national on April 11, 1899, by virtue of the Treaty of Paris, did not acquire United States citizenship under section 1994 of the Revised Statutes through her marriage to a citizen husband in 1909. Section 2169 of the Revised Statutes in effect at that time limited naturalization to "aliens being free, white persons, and to aliens of African nativity and to persons of African descent.'
DEPORTABLE:
Act of 1924 -- Remained longer -- Visitor.
Discussion: This is a motion to reopen to reconsider our decision of
July 24, 1953. It is alleged that there is additional testimony
available concerning the nationality of the respondent and her parents.
The respondent is a 63-year-old married female, who last entered the
United States at San Francisco on February 20, 1950, as a visitor, and
remained. She first entered this country in 1945 as a United States
citizen and departed in 1947. At the time of last entry she stated that
she was a citizen of China, of the Chinese race. In warrant
proceedings, she has testified under oath that she was born in the
Philippine Islands in 1890 or 1891; and that her parents were natives
and citizens of China, racially Chinese (full blood). She testified
that she was first married on January 1, 1909, in the Philippine Islands
and that her husband by that marriage is deceased; and that she was
next married on July 12, 1951, in the United States. It appears that
her second marriage has been annulled and that she is presently married
to a legally resident alien. She has been found deportable and has been
authorized to depart voluntarily.
Counsel's brief sets forth certain nationality laws applicable to
persons born in the Philippine Islands. After a thorough discussion, he
has concluded that this respondent, a native of the Philippine Islands,
was a subject of Spain at birth; that by the Treaty of Paris on April
11, 1899, she became a national of the United States; and that on
January 1, 1909, she became a United States citizen by marriage to an
American citizen pursuant to section 1994 of the Revised Statutes of the
United States (10 Stat. 604).
Section 1994 of the Revised Statutes (repealed September 22, 1922)
which was in effect at the time of the alleged marriage of this
respondent in 1909 reads as follows:
Any woman who is now or may hereafter be married to a citizen
of the United States, and who might herself be lawfully
naturalized, shall be deemed a citizen. * * *
The pertinent section of law quoted above and a similar provision of
law (Act of February 10, 1855) were construed by the Attorney General in
an opinion on July 30, 1907 (27 Op. Atty. Gen. 507) in which it was held
that the words "who might herself be lawfully naturalized' in such
statutes "refer to the class or race who might be lawfully naturalized,'
and did not require compliance with other conditions of the
naturalization laws. Since the facts in this case show that this
respondent is of the (full blood) Chinese race, the issue presented is
whether she was of a race or class eligible to be naturalized at the
time of her marriage.
It appears that the naturalization laws were originally limited to
"any alien being a free white person.' /1/ Such laws were later extended
to aliens of African nativity and persons of African descent. /2/
Section 2169 of the Revised Statutes in effect in 1909 at the time of
the marriage of this respondent provided:
The provisions of this title (naturalization) shall apply to
aliens being free white persons, and to aliens to African nativity
and to persons of African descent.
The issue relative to classes or races who are "white persons' within
the meaning of section 2169 of the Revised Statutes, has been considered
in many instances for the purpose of determining eligibility to
naturalization. This Board considered the question in Matter of K ,
A-2655247, 2, I. & N. Dec. 253 (Atty. Gen., May 26, 1945). We found
that the Supreme Court of the United States had construed the meaning of
the term "white persons' on two occasions and had held that the words
imported a racial test and "were meant to indicate only a person of what
is popularly known as the Caucasian race.' /3/
In our decision in Matter of K , (supra), we noted that certain
races, like the Japanese, the Chinese and the (East) Indians, were not
white races. /4/
It must, therefore, be concluded that this respondent, who is of the
Chinese race, was not a person of the white or Caucasian race or any
other race or class eligible to citizenship within the provisions of
section 2169 of the Revised Statutes of the United States in 1909; and,
therefore, she was not a person who could be lawfully naturalized at the
time of her marriage in 1909. She, therefore, did not acquire United
States citizenship by such marriage.
Counsel contends that respondent was a United States national at the
time of her marriage and that the provisions of section 2169 and section
1994 of the Revised Statutes, applicable to aliens, do not apply to
respondent who was not an alien; that respondent was not Chinese, but a
citizen of the Philippines; and that citizens of the Philippines
(United States nationals) were not racially ineligible for United States
citizenship.
It is not easy to follow the reasoning of counsel, particularly pages
7 and 8 of his brief. Apparently he believes that respondent's
ineligibility to citizenship because of race was eliminated when she
became a United States national.
By the Treaty of Paris between the United States and Spain on
December 10, 1898 (30 Stat. 1754), Spanish subjects, natives of the
Philippine Islands, residing in that territory, were declared citizens
of the Philippine Islands, except those who elected to preserve
allegiance to the Crown to Spain. By act of Congress on July 1, 1902
(32 Stat. 691) all inhabitants of the Philippine Islands continuing to
reside there who were Spanish subjects on April 11, 1899, and their
descendants, were deemed citizens of the Philippine Islands, nationals
of the United States. Therefore, citizens of the Philippine Islands
were not aliens initially because they did not owe allegiance to any
foreign government, but to the United States. Consequently, prior to
June 29, 1906, no Philippine citizen could become a citizen of the
United States because under the then existing naturalization law
(Revised Statutes 2169), the right of naturalization was limited to
"aliens being free white persons, and to aliens of African nativity and
to persons of African descent.' Not being an alien, a Philippine
citizen, regardless of his race or class, could not be naturalized.
However, section 30 of the act of June 29, 1906 (34 Stat. 606) provided
that all persons not citizens of the United States could proceed toward
naturalization. However, section 30 of the act of June 29, 1906, did
not remove the requirement of eligibility as to face or color. /5/ A
citizen of the Philippines could proceed toward naturalization, but must
meet all of the legal requirements including racial eligibility.
We find from the foregoing discussion that under the applicable
naturalization laws this respondent, a native of the Philippine Islands,
national of the United States, racially Chinese, was ineligible for
naturalization in 1909. Consequently, she was a person who could not be
lawfully naturalized within the provisions of Revised Statutes, section
1994. Obviously she did not acquire United States citizenship by her
marriage to a United States citizen in 1909. A reopening of the
proceedings would avail the respondent nothing. The motion will be
denied. She will be given another opportunity to depart voluntarily.
Order: It is ordered that the motion be and the same is hereby
denied.
It is further ordered that the order of the special inquiry officer
of April 24, 1953, and order of this Board of July 24, 1953, and warrant
of deportation issued pursuant thereto, to withdrawn, and that the alien
be permitted to depart from the United States voluntarily without
expense to the Government, to any country of her 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, when and as
required, the privilege of voluntary departure shall be withdrawn
without further notice or proceedings, and the alien deported pursuant
to law on the charge in the warrant of arrest.
(1) Act of March 26, 1790, 1 Stat. 103; act of January 29, 1795, 1
Stat. 414; act of April 14, 1802, 2 Stat. 153; act of May 26, 1824, 4
Stat. 69.
(2) Act of July 14, 1870, 16 Stat. 254; act of February 18, 1875, 18
Stat. 380; section 2169, Revised Statutes.
(3) Ozawa v. United States, 260 U.S. 178 (1922); United States v.
Thind, 261 U.S. 206 (1923).
(4) See also Chinese Exclusion Act of May 6, 1882 (8 U.S.C. 363)
which prohibited judicial naturalization of Chinese persons (repealed
December 17, 1943, 57 Stat. 600).
(5) Toyota v. United States, 268 U.S. 402 (1925); De La Ysla v.
United States, 77 F.(2d) 988 (1935).
Marriage -- Termination of -- Divorce by mutual consent, China.
Under the law of China, husband and wife may effect a divorce
themselves where they mutually consent to it in writing over the
signatures of at least two witnesses. Where the marriage was celebrated
in China between persons resident and domiciled in China; at least one
of the parties retained domicile in China; the other party voluntarily
consented to the agreement, thereby submitting to the jurisdiction of
this form of divorce; and the marital res appears at all times to have
been in China, a valid divorce decree has been entered in China.
Discussion: This case comes forward on appeal from an order of the
district director dated May 27, 1953, denying the petition for issuance
of immigrant visa on the ground that the petitioner has failed to
establish that the beneficiary is his wife.
The petitioner, a native-born citizen of the United States, seeks
nonquota status under section 101(a)(27) of the Immigration and
Nationality Act on behalf of his alleged wife. A marriage certificate
has been submitted showing the performance of a marriage ceremony on
October 11, 1952, at Scarsdale, N.Y.
The issue in the case involves the question of whether there has been
a valid termination of the prior marriage of the petitioner. The
petitioner was previously married at Shanghai, China, on June 18, 1946.
According to the statement of facts submitted in the brief filed by
counsel for the petitioner, the petitioner had resided in China from
1925 to 1946 and returned to this country in September 1946. His wife,
however, failed to accompany him to the United States and on December 1,
1949, a divorce agreement was entered into between the petitioner and
his first wife presumably at Shanghai, China.
Counsel for the petitioner contends that the divorce agreement
constitutes a valid divorce under the provisions of Title 4 of the Civil
Code of the Republic of China, Articles 1049 and 1050. The provisions
of these articles are as follows:
Article 1049. Husband and wife may effect a divorce themselves
where they mutually consent to it; but in the case of a minor,
the consent of his or her statutory agent must be obtained.
Article 1050. Divorce by mutual consent is effected in writing
and requires the signatures of at least two witnesses. /1/
Counsel asserts that these provisions are the only ones found in the
Civil Code of the Republic of China relating to the manner of effecting
a divorce, except where the parties do not agree when resort must be had
to court action. He emphasizes that no residence requirements are set
forth in the code. A certificate dated October 7, 1952, from the Consul
General of the Republic of China at New York certifies that Mr. Y H and
Mrs. H , nee H J S were legally divorced by agreement on December 1,
1949.
It appears that the divorce agreement was signed by the petitioner
while in the United States and that thereafter he returned it to his
wife in China who also signed it before the signatures of two witnesses,
thereafter she sent one copy to the petitioner and kept one copy for
herself. It may be noted that this prior marriage was celebrated in
China between persons resident and domiciled in China; that at least
one of the parties retained the domicile in China; that the other party
voluntarily consented to the agreement, thereby submitting to the
jurisdiction of this form of divorce; and that the marital res appears
at all times to have been in China. Both the provisions of the Civil
Code of the Republic of China and the opinion of the Chinese consul
general indicate a valid divorce decree has been entered in China.
In addition, there was no concealment of the prior marriage and the
method of its termination when the parties hereto applied for a license
to marry at Scarsdale, N.Y. A ceremonial marriage duly celebrated under
the laws of a state carries with it a strong presumption of its validity
and legality, and proof must be brought forward in order to overcome
such presumption.
In the instant case, there is no finding as to the invalidity of the
Chinese divorce by agreement, but it must be assumed that the conclusion
of an invalid divorce decree was predicated upon reasoning to the effect
that such a divorce decree was similar to a Mexican "mail-order' divorce
decree. However, there is no compelling reason to conclude that this
divorce decree was similar in nature to a Mexican divorce decree because
of the presence of the various elements already set forth which would
appear to confer jurisdiction upon the Chinese method of divorce in this
case. As far as it appears, this divorce by agreement constituted a
valid divorce decree in China. There is no showing that the State of
New York, where the second marriage was celebrated, frowns upon such
divorce decrees nor is there any finding that such a divorce decree was
invalid in China. In view of the fact that the manner of the divorce
was fully set forth in the license application, it would appear that New
York granted full faith and credit or comity to the decree of
termination of the prior marriage. There appears to be no rule of
public policy violated nor any code of morals to which such a divorce is
repugnant. It is, therefore, concluded that this divorce and subsequent
marriage should be recognized as valid for immigration purposes (Matter
of P , 56324/762, 4, I. & N. Dec. 610 (Atty. Gen., 1952)).
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) A memorandum prepared by the Far Eastern Law Section, Library of
Congress, dealing with divorce by mutual consent under Chinese law is
annexed hereto as "Appendix A.'
In considering the matter of divorce by mutual consent under the laws
of the Republic of China, the following article of the Chinese Civil
Code should prove of interest:
Article 1049. A husband and wife may effect a divorce by
themselves where they mutually consent to it; but in the case of
a minor, the consent of his or her statutory agent must be
obtained.
No grounds for divorce are stated.
A divorce by mutual consent is a juristic act. The courts have
stated in several cases who may be involved in this juristic act. The
following quotations from two such cases may prove pertinent:
Whereas the husband and wife are the parties concerned in the
marriage relationship, a divorce by mutual consent must be
performed by themselves * * *. (1926; Appeal Court, No. 1993).
A divorce by mutual consent must be decided by the husband and
wife. No other person can act in their behalf. (1918; Appeal
Court, No. 132).
The attitude of the courts on the question of the mutuality of the
consent has been stated in the following three, among other cases:
The principle of freedom in marriage shall be construed to mean
that in marriage the intent of the parties concerned must be
respected. No third party may interfere with it. It does not
mean, however, that one party must be divorced by the arbitrary
will of the other, or that such may be permitted. (1928, Appeal
Court, Shanghai, No. 729).
Freedom to contract a marriage or effect a divorce means that
the interference of a third party is not permitted. It does not
mean that one party may divorce the other arbitrarily,
irrespective of the interest of the other. (1929, Appeal Court,
No. 106).
In the marital relationship the intention of both parties
concerned must be respected. Even though individuals may have
freedom to contract a marriage or effect a divorce, it must be by
mutual consent and not on the arbitrary will of one of the
parties. (1931, Appeal Court, No. 1764).
A decision of 1941 outlines a possible role open to a third party.
A third party may be asked to act as an intermediary between
husband and wife to convey a voluntary expression of intent, which
is different from delegating another person to act as a legal
representative to determine the effect of a juristic act. (1941,
Appeal Court, No. 1606).
While a minor may under certain circumstances enter into marriage
without the consent of his or her parents or guardian, there is no such
exception provided in Article 1049 cited above. The Judicial Yuen has
interpreted this point as follows:
Concerning divorce of a minor by mutual consent, Article 1049
of the Civil Code has already stipulated that such a divorce must
have the consent of the statutory agent of such minor; and since
no provision has been made for any exception to this requirement,
a divorce secured without such consent must be declared invalid in
accordance with Article 71 of the Civil Code. (1936; Judicial
Yuen, No. 1543).
Article 71 reads as follows:
A juristic act which is contrary to a mandatory or prohibitive
provision of law is void * * *.
The formalities with which those must comply who wish a divorce by
mutual consent are set forth in Article 1050.
Article 1050. Divorce by mutual consent is effected in writing
and requires the signatures of at least two witnesses.
The courts have dealt with this provision in several cases.
The following quotation is illustrative of their reaction:
Divorce by mutual consent must be executed in a written
instrument which must bear the signatures of two or more persons,
as is required by Article 1050 of the Chinese Civil Code. A
divorce by mutual consent arranged in default of this provision
shall be held to be legally invalid in accordance with Article 73
of the Chinese Civil Code. (1936, Appeal Court, Shanghai, No.
1306).
This article reads:
Article 73. A juristic act which is not in the form prescribed
by law is void, unless otherwise provided by law.
Who may witness the instrument has been determined by the courts. In
the decision of a 1939 case the court stated:
Article 1050 of the Civil Code, only prescribes that the form
of divorce by mutual consent must be expressed in a document which
must bear the signatures of two or more witnesses. Whereas, their
is no stipulation to the effect that such witnesses must be
acquainted with the parties concerned, it is, therefore,
immaterial as far as the validity of the divorce is concerned,
whether the witnesses have previously been acquainted with the
husband and wife. (1939, Appeal Court, Shanghai, No. 353).
We have been unable to locate any definite statements in the material
on hand on the question of the validity of an instrument signed by a
husband before two witnesses in one country and by a wife before two
different witnesses in another. It would seem that since the mutuality
of consent which is basic to the act is present and the expression of
this consent is formalized in a document signed by both parties in
interest, the divorce by mutual consent ought to be valid. However, no
positive statement has been found to this effect. The authorities are
clear that such a divorce is not valid unless performed in accordance
with the provisions of the law.
This memorandum does not purport to present a complete statement of
the law of the Republic of China on the subject of divorce by mutual
consent. It merely summarizes a few of the statutory provisions and
judicial decisions dealing with the subject.
Crime involving moral turpitude -- Admission of essential elements of -- Section 212(a)(9) of Immigration and Nationality Act -- False statements in application for extension of stay.
An alien who admits that he, knowingly and willfully, falsely alleged in applications for extensions of temporary stay that he was not employed, lest he be forced to leave the United States upon disclosure of his employment, has admitted the essential elements of the crime defined in 18 U.S.C. 1001 which is a crime involving moral turpitude. He is, therefore, inadmissible to the United States under section 212(a)(9) of the Immigration and Nationality Act. (Cf. Matter of G , 0612/33255, July 13, 1954, Int. Dec. No. 620.)
EXCLUDABLE:
Act of 1952 -- Section 212(a)(9) -- Admits the commission of a crime
-- Making false and fraudulent statements in application for extension
of stay. (18 U.S.C. 1001.)
Discussion: This case is before us on appeal from the decision of
the special inquiry officer dated June 7, 1954, excluding the alien on
the above-mentioned ground. Appellant, a 26-year-old native and citizen
of Cuba, applied for admission for permanent residence at Miami, Fla.,
on May 25, 1954. At that time he was in possession of a valid Cuban
passport and a valid nonquota immigrant visa. He previously entered the
United States at Miami on May 22, 1953, as a temporary visitor for
pleasure until August 22, 1953. Appellant obtained two extensions of
his temporary stay to November 22, 1953, and to January 21, 1954. In
these applications, filed with the Immigration Service in New York City,
appellant stated that he was not employed, although he had in fact taken
employment on May 30, 1953, at the Text Machinery Co., Astoria, Long
Island, N.Y. Appellant has admitted that he made these statements and
that he did so knowingly and willfully, lest he be forced to leave the
United States upon disclosure of his employment.
18 U.S.C. 1001 provides as follows:
Statements or entries generally. -- 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 5 years,
or both. June 25, 1948, c. 645, 62 Stat. 749.
In connection with this offense, the term "fraud' has been defined as
consisting of a misrepresentation of a material fact, made with
knowledge of its falsity and with intent to deceive another, which
representation must be believed and acted upon by the person deceived to
his own damage (United States v. United States Cartridge Co., 95 F.
Supp. 384 (D. Mo., 1950), aff'd 198 F.(2d) 456, cert. den. 345 U.S.
910). In addition, the acts must be done knowingly, willfully, and with
a wrongful purpose in order to satisfy the essential elements of the
offense (United States v. Buckley, 49 F.Supp. 993 (D.C., 1943)).
Since the Supreme Court has determined that offenses containing an
inherent fraud element involve moral turpitude and because of the
above-mentioned judicial construction of 18 U.S.C. 1001, this crime is
clearly one involving moral turpitude (Jordan v. DeGeorge, 341 U.S.
223, 95 L.Ed. 886 (1951)). The record reveals that the elements of the
crime defined in 18 U.S.C. 1001 were definitely present in appellant's
actions and that he has made a valid admission of the commission of this
crime. /1/
It is noted in passing that dissenting opinions, such as those quoted
by the special inquiry officer, /2/ are not considered controlling
precedents. The ground of exclusion under section 212(a)( 9) is,
therefore, sustained and the appeal is accordingly dismissed.
Order: It is hereby ordered that the appeal be dismissed.
(1) The standards for valid admissions, set out in Matter of J ,
56038/559, 2, I. & N. Dec. 285 (Atty. Gen., 1945), have been applied to
section 212(a)(9). Matter of B , unreported, 0100/26634 (B.I.A., April
15, 1953).
(2) Rubinstein v. Brownell, 206 F.(2d) 449 (C.A.D.C., 1953), aff'd
346 U.S. 929 (1954).
Editor's Note: See Matter of B M , A-8949019, Interim Decision No.
735, modifying this decision.
Excludability -- Section 212(a)(22) of Immigration and Nationality Act -- Departed from or remained outside United States to evade or avoid military service.
Where it is established that an alien lawfully admitted to the United States for permanent residence abandoned his domicile in the United States and departed to Mexico for the purpose of evading or avoiding military service in the Armed Forces of this country, he is excludable from the United States under section 212(a)(22) of the Immigration and Nationality Act. Notwithstanding the fact that he is presently applying for admission as a nonimmigrant visitor, he remains inadmissible under section 212(a)(22) since he was not within the nonimmigrant class of aliens at the time of his departure from the United States.
EXCLUDED:
Section 212(a)(22), I. & N. Act -- Departed to escape military service.
Section 212(a)(22), I. & N. Act -- Remained outside the United States
to escape military service.
Discussion: This appeal is from a decision of a special inquiry
officer at Calexico, Calif., on February 12, 1954, excluding the
appellant on the grounds designated above. The appellant, a native and
citizen of Mexico, seeks entry as a nonimmigrant visitor for business.
Counsel, admitting that the appellant was liable for military service
at the time he departed from the United States on October 20, 1942,
contends that his act in departing could not have been to evade or avoid
military service because his eligibility for service had not been
determined. The issue under consideration now is whether the first
ground of exclusion is sustained.
The Service representative urges that this appellant, a resident
alien immigrant at the time he departed to Mexico on October 20, 1942,
is now inadmissible to the United States on the first ground of
exclusion assigned above, notwithstanding the fact that he applied for
admission as a nonimmigrant visitor. In other words, it is urged that
the appellant does not come within the exemption provided for
nonimmigrants in section 212(a)(22) of the Immigration and Nationality
Act of 1952. /1/
The special inquiry officer has summarized the evidence. However,
the pertinent facts will be restated because the acts, conduct and
investigations relating to the appellant cover a period of about ten
years and the record is voluminous.
The appellant is a 40-year-old married male, native and citizen of
Mexico, who was admitted for permanent residence on October 13, 1928.
He attended school up to 1934 when he obtained employment, apparently
with the Colorado River Land Co. in Mexicali, Mexico. He resided in the
United States, used a resident border-crossing card and worked in Mexico
for the same employer up to 1945 or 1946. His home was in Calexico with
his mother and grandmother. He was single up to April 1942. On October
20, 1942, he departed to Mexico, abandoning his domicile in the United
States on the same date. He obtained a nonresident alien's
border-crossing identification card from the Service and surrendered his
resident alien's border-crossing card. The card he obtained was
revalidated on October 21, 1943, to expire on October 21, 1944. He used
the card to enter the United States for temporary visits of a few hours
each up to November 1, 1943, after which date he did not apply to enter
this country until February 1953 when a request was received by the
Service for a waiver of excludability under section 212(d)(3) of the
Immigration and Nationality Act. The request was denied after
investigation. On or about August 28, 1953, he applied for a
nonresident alien's border-crossing card at San Ysidro. After hearing
before a special inquiry officer he was found admissible as a
nonimmigrant on September 9, 1953, and a border-crossing card was
issued. Thereafter, he sought to enter at Calexico, Calif., on November
14, 1953, at which time he was accorded a hearing and excluded on the
grounds stated above. The instant appeal was taken from that decision.
The appellant's wife, a United States citizen to whom he was married
in April 1942, accompanied him to Maxicali, Mexico, on October 20, 1942,
he having obtained an apartment on the day preceding his departure. His
mother and grandmother remained in the United States. He executed a
form "Abandonment of Residence in the United States' on the day of
departure.
The appellant registered for military service with the local draft
board at El Centro, Calif., on October 10, 1940. He was then 27 years
of age, single. He executed a questionnaire on June 16, 1941, and sent
it to the local draft board. On the date he departed to Mexico (October
20, 1942) he wrote the Selective Service Board that he had abandoned his
legal residence in the United States, effective that date. He returned
papers he had received from the draft board and surrendered a permit
that had been given to him to cross the border daily to his work in
Mexico. He did not obtain a permit from the local draft board to leave
the United States to reside in Mexico and did not inform the local draft
board prior to departure of his intention to depart. On February 17,
1943, the local draft board sent him a delinquent notice and requested
that he report for physical examination on February 25, 1943. He
replied to the notice on February 18, 1943, stating that pursuant to
Article IV of an agreement between the governments of Mexico and the
United States he was no longer under the jurisdiction of the Selective
Training and Service laws of the United States. The complete file in
his case was then submitted to the National Director of Selective
Service for review and opinion on September 23, 1943. That officer gave
a decision to the effect that Article IV of the agreement between Mexico
and the United States was inapplicable to persons of Mexican nationality
who departed from the jurisdiction of the United States after May 16,
1942, at which time the liabilities of the Selective Service Act had
attached to them. The appellant was notified of the decision on October
8, 1943, and was later ordered to report for physical examination and
induction on October 28, 1943. He admits that he disobeyed that order.
He alleges that he received the notice on November 1, 1943, and since he
believed he was delinquent, he feared criminal prosecution should he
return to the United States. He admits that he did not cross the border
from Mexico to the United States from November 1, 1943, to on or about
September 9, 1953, a period of more than 9 years.
The Selective Service records show the following concerning the
appellant's classification:
October 16, 1940 -- Registered with Local Board 159
June 20, 1941 -- IV-C (alien)
September 1, 1943 -- Class I-A
June 16, 1942 -- Reclassified Class III-A, (dependents)
August 14, 1944 -- Reclassified Class IV-C
October 9, 1945 -- Class IV-A, over age.
The minutes of the Selective Service Board where the appellant was
registered show the following entries:
June 16, 1942 -- III-A, DSS Form 57 mailed June 18, 1942
September 1, 1943 -- I-A, DSS Form 57, sent on September 2,
1943
August 14, 1944 -- IV-C
August 17, 1944 -- DSS Form 57 mailed registrant
October 9, 1945 -- IV-A
October 11, 1945 -- DSS Form 57 mailed registrant.
The appellant wrote the local draft board on November 18, 1944,
requesting that he be informed concerning his status under the Selective
Service Act. He was advised that should he reenter the United States he
would be placed in the Armed Forces immediately as his delinquency had
not been cancelled. He wrote again on October 30, 1945, concerning his
status under the Selective Service Act. However, he did not enter the
United States, but remained in Mexico, as previously stated, for a
period of about 9 years.
The appellant denies that his departure to Mexico on October 20,
1942, was to evade or avoid American military service. He alleges that
he moved across the border from Calexico to Mexicali for business and
financial reasons; that the Government of Mexico wanted everyone of
Mexican nationality to move to Mexico; and that his employer asked him
to live in Mexico. He referred to one employer, Z W , as a person who
requested him to move to Mexico and obtain employment. A witness, Z W ,
has testified that there were requests for persons employed in Mexico to
move to that country but that no pressure was brought to bear by the
Government of Mexico prior to 1949. This witness had asked this
appellant to join his firm in Mexico, but it is noted that the appellant
did not change employment until 1945 or 1946. Another witness, C C C ,
a United States citizen, who was working with the appellant in October
1942, has testified that he discussed the matter of the appellant taking
over the whole business for the reason that the witness expected to be
drafted into the military service. Although this appellant had
discussed with the witness the subject of an apartment in Mexicali,
Mexico, he had never mentioned to his associate the matter that he
expected to be drafted or to enter the military service. It is well
known that Calexico, Calif., is in close proximity to Mexicali, Mexico.
It is also well known that living conditions in the United States are
better, or at least as good, as they are in Mexico. The appellant's
wife is a native-born citizen.
It appears clear to us from the acts and conduct of the appellant and
the circumstances surrounding his departure on October 20, 1942, as
disclosed by the records of the Selective Service System, and by facts
revealed by his own testimony that he had definitely made up his mind
prior to October 20, 1942, that he, a Mexican national, could evade or
avoid military service by leaving the jurisdiction of the United States.
Evasion of military service was his chief objective. The fact that he
did not inform the local draft board of his prearranged plan; or seek
permission to leave; or ask advice from the Selective Service Board
concerning his status in the event of departure; and the fact that
after departure he immediately replied to demands from the local draft
board requesting him to return by stating that he had changed residence
and was not liable for military service as a Mexican resident, appear to
exclude every other motive or purpose. He had the background of his
associate who anticipated that he would be called for induction. The
appellant believed that by crossing the Mexican border he would be
beyond the reach of the Selective Service laws. He did not notify the
Selective Service System that he had changed his residence until he was
beyond their jurisdiction. Thus, he continued in gainful employment.
We have carefully considered the reasons stated by the appellant for his
departure to Mexico on October 20, 1942, and we find that those reasons
are without merit and did not warrant the action taken. The conclusion
is inescapable from the evidence of record, and in the absence of
affirmative credible evidence to the contrary, that this appellant
departed from the jurisdiction of the United States on October 20, 1942,
for the sole purpose of evading or avoiding military service in the
Armed Forces of the United States.
Concerning the contention of counsel that although the appellant was
liable for American military service at the time he departed from the
United States on October 20, 1942, he does not come within the terms of
the excluding provisions of the statute because his eligibility had not
been determined (through physical and mental examination, etc.) and
because induction was not imminent, we find that this contention must be
rejected. The parallel provision of law concerning persons who departed
from the jurisdiction of the United States to escape military service,
and which was in effect prior to the effective date of current law
(section 212(a)(22), Immigration and Nationality Act) is section 3 of
the Immigration Act of February 5, 1917, as amended on September 27,
1944. /2/ In a decision involving a factual situation under that
provision of law, it was held that the statute embraced a person who
left the United States when induction into the military service was an
imminent possibility. /3/ We also find that the administrative
decisions referred to by counsel are not controlling in the instant
case. Although the facts may appear similar, each case is
distinguishable.
As stated above, this appellant admits disobedience in February 1943
to demands from the local draft board that he report for physical
examination and induction. He alleges that he was afraid to enter the
United States thinking that because he was delinquent on the records of
the Selective Service that he would be criminally prosecuted.
Predicated on the admissions made by the appellant that he remained
outside the United States and disobeyed orders and demands of the local
draft board, we conclude that he is a person who remained outside the
jurisdiction of the United States to avoid or evade military service.
It follows that both grounds of exclusion as found by the special
inquiry officer are sustained.
We next consider whether this appellant was a nonimmigrant at the
time he departed from the United States on October 20, 1942, within the
provisions of section 212(a)(22) of the Immigration and Nationality Act
which provides that, "Persons who have departed from or who have
remained outside the United States to avoid or evade training or service
in the Armed Forces in time of war or a period declared by the President
to be a national emergency' shall be ineligible to receive visas and
shall be excluded from admission into the United States, "except aliens
who were at the time of such departure nonimmigrant aliens and who seek
to reenter the United States as nonimmigrants.'
Section 101(a) of the Immigration and Nationality Act of 1952
(subdivision 15) defines the term "immigrant' to mean every alien except
an alien who is within one of the classes of nonimmigrant aliens
enumerated under that subdivision. An examination of those classes of
aliens fails to reveal a class who are permanent residents of the United
States. Subdivision 20 of section 101(a) 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.
It cannot be disputed that this appellant was a lawfully admitted alien
who was residing permanently in the United States on October 20, 1942.
Residence is the place of general abode. Up to and including October
20, 1942, this appellant had no residence abroad. Interpreting the
statutory language wherein the term "immigrant' is used in section
212(a)(22) of the Immigration and Nationality Act, we must conclude that
this appellant was not within the nonimmigrant classes of aliens at the
time he departed from the United States on October 20, 1942.
Congress in enacting current law recognized the distinction between
immigrants and nonimmigrants who departed from the jurisdiction of the
United States to evade or avoid military service, and limited the
exemption from grounds of exclusion arising therefrom, to those who were
nonimmigrants at the time of departure. /4/ It must follow that the
appellant was an immigrant on October 20, 1942, and is not within the
exception accorded to nonimmigrants, within the provisions of section
212(a)(22) of the Immigration and Nationality Act. Predicated on our
finding that this appellant does not come within the exception granted
to aliens who apply for admission as nonimmigrants; and since the
appellant has not applied for discretionary relief under section
212(d)(3) of the Immigration and Nationality Act, the appeal will be
dismissed.
Order: It is ordered that the appeal in this case be and the same is
hereby dismissed.
(1) Section 212(a)(22), Immigration and Nationality Act, reads:
(a) Except as otherwise provided in this Act, the following classes
of aliens shall be ineligible to receive visas and shall be excluded
from admission into the United States:
(22) Aliens who are ineligible to citizenship, except aliens seeking
to enter as nonimmigrants; or persons who have departed from or who
have remained outside the United States to avoid or evade training or
service in the Armed Forces in time of war or a period declared by the
President to be a national emergency, except aliens who were at the time
of such departure nonimmigrant aliens and who seek to reenter the United
States as nonimmigrants.
(2) Section 3:
That the following classes of aliens shall be excluded from admission
into the United States: * * * persons who have departed from the
jurisdiction of the United States for the purpose of evading or avoiding
training or service in the Armed Forces of the United States during time
of war or during a period declared by the President to be a period of
national emergency (P.L. 431, approved Sept. 27, 1944; * * * repealed,
sec. 403(a)(13), I. & N. Act, effective Dec. 24, 1952).
(3) Matter of V D , 56196/783, 2, I. & N. Dec. 417, 423 (Atty. Gen.,
April 4, 1946). In this case, it was held that an alien who departed
from the jurisdiction of the United States 5 days before reaching the
age of 18 years at which time he would be required to register, left
when induction in the military service of the United States was an
imminent possibility.
(4) See S. Report No. 1515, 81st Cong., 2d sess., pp. 412 and 413,
concerning modifications, additions and deletions from prior laws in
which it was stated "those recommendations on the excludable classes, in
general, will include aliens who are * * * (10) draft evaders and
avoiders.' See also S. Report No. 1137, 82d Cong., 2d sess., p. 13, and
H. Report No. 1365, 82d Cong., 2d sess., p. 52.
Status -- National but not a citizen of the United States -- Native of the Philippine Islands.
While a person born in the United States loses the citizenship
acquired thereby only if he commits expatriating acts, this is not true
of a United States national who does not possess citizenship but merely
owes allegiance to the United States. All citizens of the Philippine
Islands who had not acquired United States citizenship lost their United
States nationality on July 4, 1946, whether residing in the Philippine
Islands or in the United States.
Discussion: This case is before us on counsel's motion for
reconsideration dated March 22, 1954. On April 9, 1954, we stayed the
respondent's deportation pending consideration of the matter.
The special inquiry officer granted voluntary departure after
concluding that the respondent was deportable because, after his
admission as a seaman, he failed to comply with the conditions of his
status. On January 14, 1954, we dismissed the appeal from the special
inquiry officer's decision. The sole point urged on the motion for
reconsideration is that the respondent was a United States national and
that he did not lose his nationality when independence was granted the
Philippine Islands on July 4, 1946. Counsel, in his motion for
reconsideration, asserted that the question was pending before the
Supreme Court in Barber v. Gonzales. Subsequently, on June 7, 1954,
that case was decided without passing on the contention that Gonzales
had not lost his United States nationality. /*/
We have carefully considered the argument of counsel and the cases
cited in his motion for reconsideration and in the supplemental brief
dated March 18, 1954. Those dealing with citizenship or expatriation of
United States citizens are not in point since it is clear from the
record that the respondent has never been a citizen of the United
States. As a matter of fact, until the Act of July 2, 1946 (60 Stat.
416) Filipinos were racially ineligible to become naturalized citizens
of the United States. Most of the remaining cases cited by counsel do
not appear to be particularly analogous or pertinent.
Counsel's principal argument is that the respondent could not be
divested of his United States nationality without his consent. As
previously indicated, the cases he relies on in this connection deal
with loss of United States citizenship. The terms "nationality' and
"citizenship' are not synonymous although some courts have referred to
nationality and loss of nationality in cases involving persons who
claimed United States citizenship. All citizens of the United States
are United States nationals but not all nationals are citizens. Both
nationals and citizens owe allegiance to the United States but those who
are merely nationals and do not possess United States citizenship,
cannot exercise any rights of citizenship. A national of the United
States may acquire United States citizenship through the naturalization
process. /1/ The distinction between citizens and nationals is also
clearly set forth in section 101(b) of the Nationality Act of 1940 which
provides "The term "national of the United States' means (1) a citizen
of the United States, or (2) a person who, though not a citizen of the
United States, owes permanent allegiance to the United States. It does
not include an alien.' /2/
We should also point out that a person born in the United States and
subject to the jurisdiction thereof is a citizen by virtue of the 14th
Amendment to the Constitution of the United States but the Philippine
Islands have never been part of the United States although they were a
possession of this country and under its sovereignty. While a person
who thus acquires citizenship loses it only if he commits an
expatriating act, this is not true of a United States national who does
not possess citizenship but merely owes allegiance to the United States.
Under Presidential Proclamation 2695 of July 4, 1946 (11 F.R. 7517)
the United States withdrew and surrendered all rights of sovereignty
over the territory and people of the Philippines. At that moment, the
allegiance, which the citizens of the Philippine Islands owed to the
United States, was terminated and the corresponding United States
nationality of such persons was likewise terminated.
Although counsel concedes that citizens of the Philippines who had
always resided there lost their United States nationality on July 4,
1946, he argues that a different conclusion must be reached with respect
to citizens of the Philippine Islands who had taken up residence in the
United States. No authority for this proposition has been cited and we
can perceive no legal ground for reaching different conclusions solely
on the basis of whether a Filipino had or had not taken up residence in
the United States. In Cabebe v. Acheson, 183 F.( 2d) 795 (C.A. 9,
1950), the court had under consideration a person born in the Philippine
Islands in 1910 who lawfully entered Hawaii in 1930 and had resided
there ever since. The court held that he lost his United States
nationality upon the granting of independence to the Philippine Islands
on July 4, 1946. His case presented a stronger factual situation than
that of the respondent because the latter first came to the United
States in 1944 as a nonimmigrant seaman; for immigration purposes he
was considered an alien at that time under section 8(a)(1) of the
Philippine Independence Act of 1934; and between May 1, 1934 and July
2, 1946, he could not have been lawfully admitted to the United States
for permanent residence because of his racial ineligibility to
citizenship and the provisions of section 13(c) of the Immigration Act
of 1924.
The view that all citizens of the Philippine Islands, who had not
acquired United States citizenship, lost their United States nationality
on July 4, 1946, whether residing in the Philippine Islands or in the
United States, has been consistently followed by the Immigration and
Naturalization Service and by this Board since the granting of
independence to the Philippines. We find nothing in counsel's argument
nor in the cases cited by him which would persuade us that this view is
erroneous. On the basis of the consistent administrative practice
mentioned and on the authority of Cabebe v. Acheson, (supra), we
conclude that the respondent ceased to be a national of the United
States on July 4, 1946; that he is an alien at this time; and that the
previous decision concerning his deportability was correct.
We are of the opinion that the respondent's failure to depart
voluntarily was predicated on his belief that he was still a national of
the United States as asserted in the motion for reconsideration. Under
these circumstances, we believe that he should be afforded one last
opportunity of departing voluntarily before the entry of an order of
deportation. He was married to a United States citizen in 1949 and is
now entitled to nonquota status.
Accordingly, the following order will be entered.
Order: It is ordered that counsel's motion for reconsideration be
denied and that our stay of deportation of April 9, 1954, be terminated.
It is further ordered that the outstanding order and warrant of
deportation be withdrawn and 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, in any event not less
than 60 days, 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.
(*) Editor's Note: 347 U.S. 637.
(1) Section 321 of the Nationality Act of 1940; section 325 of the
Immigration and Nationality Act of 1952.
(2) A similar definition of this term is contained in section 101(
a)(22) of the Immigration and Nationality Act of 1952.
Preference quota status -- Section 203(a)(4) of the Immigration and Nationality Act -- Brothers and sisters through adoption not eligible.
Brothers and sisters through adoption are not "brothers' or "sisters'
within the meaning of section 203(a)(4) of the Immigration and
Nationality Act and are not eligible for preference quota status under
that section. (Note: 5, I. & N. Dec. 438, holding that adopted "sons'
and "daughters' are eligible for fourth preference status.)
Discussion: The petitioner, a naturalized citizen of the United
States, seeks a preference status on behalf of the beneficiary under the
provisions of section 203(a)(4) of the Immigration and Nationality Act.
This section provides a preference on behalf of qualified quota
immigrants who are brothers or sisters of citizens of the United States.
Documents submitted in connection with the petition establish that
the petitioner and the beneficiary did not have common parents, but that
the beneficiary was adopted by the parents of the petitioner at Kapuvar,
Hungary, on November 20, 1912. The beneficiary was born at the same
place on August 9, 1904, and was adopted by the parents of the
petitioner after his mother died. The issue is whether the term
"brother' in section 203(a)(4) includes a brother through adoption.
The words "brother' or "sister' as used in section 203(a)(4) are not
defined in the Immigration and Nationality Act. In construing the word
"sons' or "daughters' of United States citizens, who are also eligible
for a preference status under section 203(a)(4), it has been held that
adopted sons or daughters were included within the provisions of section
203(a)(4). /1/ This holding was predicated upon authoritative precedent
under the immigration laws to warrant the conclusion reached.
However, authority is lacking to extend a collateral relationship
such as brother and sister to include a brother or sister by adoption.
The terms as used in the Immigration and Nationality Act present a
question of Federal law and are to be taken and understood in their
plain, ordinary and popular sense. In construing similar terms as used
in section 602(g) of the National Service Life Insurance Act of 1940, it
has been held that the term "brother' includes a brother by the whole
blood and a brother by the half blood, but does not include a brother
through adoption. /2/ The phrase "brothers and sisters' as used in
statutes of descent and in inheritance tax statutes, is commonly
construed to include half brothers and half sisters, but no mention is
made of brothers or sisters through adoption. /3/
It is accordingly concluded that a brother through adoption is not
eligible for a preference status under section 203(a)(4) of the
Immigration and Nationality Act. The petition will, therefore, be
denied.
Order: It is ordered that the appeal be and the same is hereby
denied.
(1) Matter of R , VP 3-18004, 5, I. & N. Dec. 438 (1953).
(2) Woodward v. United States, 167 F.(2d) 774 (C.C.A. 8, 1948);
Droney v. United States, 59 F.Supp. 154 (D.C., 1945); Carpenter v.
United States, 72 F.Supp. 510 (W.D. Pa., 1947).
(3) Black's Law Dictionary, Third Edition, p. 253 254; Words and
Phrases, Perm. Ed., Vol. 5, p. 845.
Ineligible to citizenship -- Sections 101(a)(19) and 315(a) of the Immigration and Nationality Act -- Excludability under section 212(a)( 22) of that act -- Not established where liability for service did not exist.
An alien who filed an application for exemption from military service and who was subsequently issued a Certificate of Nonresidence by his local draft board is not ineligible to citizenship under section 101(a)(19) of the Immigration and Nationality Act as an alien permanently debarred from becoming a citizen of the United States under section 3(a) of the Selective Training and Service Act of 1940, as amended. Since he was declared to be a "nonresident alien' by the agency charged with that responsibility, he was not liable for service and his act in applying for relief from a nonexistent duty did not create a bar against citizenship. He is also not ineligible to citizenship under section 315(a) of the act since that section requires both an application for exemption on the ground of alienage and a showing that the applicant was relieved from service on such ground. Such an alien, therefore, is not excludable under section 212(a)(22) of the act.
EXCLUDABLE:
Immigration and Nationality Act -- Section 212(a)(22).
Discussion: This case presents an appeal from an order entered by
the special inquiry officer, April 27, 1954, excluding the
appellant under section 212(a)(22) of the Immigration and
Nationality Act of 1952, as an alien ineligible to citizenship
under section 101(a)(19) of the same act and who seeks to reenter
for permanent residence. Exceptions have been taken to the finding
that the appellant is ineligible to citizenship.
The appellant, a native and citizen of Spain, male, married, 40 years
of age, last arrived in the United States at the port of New York on
April 4, 1954, ex National Airlines, and applied for admission as a
returning resident alien in possession of a permit to reenter valid to
September 21, 1954. The appellant entered for permanent residence under
section 4(b) of the Immigration Act of 1924 on February 13, 1948. His
section 4(b) visa was issued on the basis of his original admission for
permanent residence on November 2, 1942.
It is established that the appellant registered under the Selective
Training and Service Act of 1940 on October 16, 1940, at Local Board No.
2, Winter Park, Fla. Prior to his entry for permanent residence during
November of 1942, the appellant executed and filed DSS Form 301 with his
local board on August 22, 1942. Exhibit 3 is an alien's Certificate of
Nonresidence (DSS Form 303) issued appellant on October 9, 1942, by his
local board at Winter Park, Fla. The Certificate of Nonresidence (DSS
Form 303) issued the appellant has never been revoked or rescinded.
There is a showing that the appellant when issued the Certificate of
Nonresidence was required to surrender his Selective Service
registration certificate. There is also a showing that after appellant
adjusted his immigration status to that of a permanent resident alien he
received from his draft board a new classification consistent with his
becoming a permanent resident.
The special inquiry officer finds that appellant comes within the
scope of section 101(a)(19) of the 1952 act in that he is ineligible to
citizenship, being an individual who is permanently debarred from
becoming a citizen of the United States under section 3(a) of the
Selective Training and Service Act of 1940, as amended. /1/ That
portion of section 101(a)(19), (supra), pertinent here reads as follows:
The term "ineligible to citizenship,' when used in reference to
any individual, means, notwithstanding the provisions of any
treaty relating to military service, an individual who is, or was
at any time, permanently debarred from becoming a citizen of the
United States under section 3(a) of the Selective Training and
Service Act of 1940, as amended * * * or under any section of this
Act * * *.
Accordingly, we must interpret the facts of the case to determine
whether the appellant comes within the provisions of the aforementioned
section of the Selective Training and Service Act as well as section
315(a) of the Immigration and Nationality Act of 1952.
Section 3(a) of the Selective Training and Service Act creates a bar
to citizenship only when an alien resident liable for service asks to be
relieved (McGrath v. Kristensen, 340 U.S. 162, 172 (1950)). Section 10
of the Selective Training and Service Act, (supra), provides in
substance that all rulings by the local draft board are to be final and
the right of appeal strictly limited. The courts have strictly adhered
to the policy of refusing to substitute their judgment for that of the
draft board unless there was no possible basis for its decision (Eagles
v. Samuels, 329 U.S. 304, 311-312 (1946); United States v. Stalter, 61
F.Supp. 732, 734 (D.C., N.D. Ind., 1945)).
This Board has pursued the same policy following the Attorney
General's ruling in a case concerned with the question of whether
Palestine was in fact a neutral country at the time of the filing of an
application for exemption from military service (Matter of D ,
A-3203582, 5, I. & N. Dec. 301). It appears that the Director of
Selective Service was in error when he originally listed Palestine as a
neutral country, an error which was subsequently corrected. The alien
concerned urged that DSS Form 301, executed when Palestine was listed as
a neutral, was a nullity since Palestine was in fact a cobelligerent.
The Attorney General in arriving at his conclusion that we could not
substitute our judgment for that of the official primarily charged with
administration of the Selective Training and Service Act said:
I have arrived at my opinion in this matter without considering
the question raised by the aliens as to whether Palestine was a
neutral at the times of their applications for exemptions from
military service. The arm of the executive branch of the
Government charged with administering the Selective Training and
Service Act of 1940, namely, the Selective Service System,
regarded Palestine as a neutral country for the purposes of that
act. Whether that determination may be questioned by anyone
outside the executive branch of the Government it is unnecessary
to decide. It is clear to me that these aliens, having themselves
asserted the neutrality of Palestine, having applied for
privileges under the law of this country on the basis of such
assertions, and having received the full benefit of such
assertions, namely, exemption from military service, are now, at a
time when all obligation to serve under the Selective Training and
Service Act of 1940 is long since past, in effect estopped from
denying the neutrality of Palestine at the times of their
respective applications.
Under the circumstances, if we were bound by the determination of the
Director of Selective Service in the Palestinian case, (supra), we are
now bound by the finding of appellant's draft board that he was not a
"male person residing in the United States' and, therefore, not liable
for service under section 3(a) of the Selective Training and Service Act
of 1940.
Section 101(a)(19) by its terms also requires us to determine whether
the appellant is ineligible to citizenship under section 315(a) of the
Immigration and Nationality Act of 1952. Section 315(a) provides:
Notwithstanding the provisions of section 405(b) not pertinent
here , any alien who applies or has applied for exemption or
discharge from training or service in the Armed Forces or in the
National Security Training Corps of the United States on the
ground that he is an alien, and is or was relieved or discharged
from such training or service on such ground, shall be permanently
ineligible to become a citizen of the United States.
Paragraph (b) of the same section reads:
The records of the Selective Service System or of the National
Military Establishment shall be conclusive as to whether an alien
was relieved or discharged from such liability for training or
service because he was an alien.
Examining the facts of the case in light of the foregoing provisions
of law and the interpretations thereof, we conclude that the appellant
does not come within the scope of section 101(a)(19) of the 1952 act as
one permanently debarred from becoming a citizen under section 3(a) of
the Selective Training and Service Act of 1940, as amended. We cannot
substitute our judgment for that of the draft board and find contrary to
their determination that the appellant was a resident alien during the
period in question. Since appellant was declared to be a "nonresident
alien' by the agency charged with that responsibility, he was not liable
for service and his act in applying for relief from a nonexistent duty
did not create the bar against citizenship under section 3(a) of the
Selective Training and Service Act (McGrath v. Kristensen, supra, at
page 172).
Appellant is not ineligible for citizenship under section 315(a) of
the Immigration and Nationality Act of 1952. This provision of the 1952
act is in the conjunctive and requires both an application for exemption
on the ground of alienage and a showing that the appellant was relieved
from service on such ground. Paragraph (b) of the same section (315)
makes the records of Selective Service conclusive evidence as to whether
an alien was relieved from service by reason of alienage. The records
of the appellant's local board at Winter Park, Fla., show conclusively
that he was relieved from training and service on the strength of the
issuance of DSS Form 303 (Alien's Certificate of Non-residence) and the
subsequent cancellation of his registration.
The appellant on the occasion of his arrival, April 4, 1954,
presented a reentry permit valid to September 21, 1954. Since he is not
inadmissible under section 212(a)(22) of the Immigration and Nationality
Act, we will sustain the appeal and authorize his admission as a
returning resident alien.
Order: It is ordered that the appeal be and the same is hereby
sustained; the alien's admission is hereby authorized as a returning
resident alien in possession of a valid reentry permit.
(1) Section 3(a) of the Selective Training and Service Act of 1940
provides in substance that every male citizen of the United States, and
every other male person residing in the United States shall be liable
for training and service in the land or naval forces: Provided, That a
neutral alien could be relieved from liability for training and service
if prior to his induction he made application to be relieved from such
liability in the manner prescribed by applicable regulations.
Nonquota status -- Sections 101(a)(27)(E) and 349(a)(1) of the Immigration and Nationality Act -- Timeliness of application.
So long as a person who shall have lost nationality prior to January 1, 1948, through the naturalization in a foreign state of a parent or parents, applies for a nonquota immigrant visa under sections 101(a)( 27)(E) and 349(a)(1) of the Immigration and Nationality Act within one year from the effective date of the act, he is eligible for nonquota status so far as timeliness of the application is concerned and may thereafter, subsequent to the one year period, be admitted to the United States in nonquota status.
EXCLUDABLE:
Section 211(a)(3) -- Immigration and Nationality Act -- Not immigrant
as specified.
Discussion: The case comes forward on appeal filed by the District
Director, New York, from the decision dated February 24, 1954, of the
special inquiry officer finding the applicant admissible to the United
States for permanent residence under section 101(a)(27)(E) of the
Immigration and Nationality Act.
The record relates to a native of the United States, citizen of
Lebanon, 35 years old, male, who last arrived at the port of New York by
plane on February 18, 1954. The applicant sought admission to the
United States for permanent residence and was in possession of a
nonquota immigrant visa issued by the American Embassy at Beirut,
Lebanon, on December 23, 1953, valid to April 22, 1954, bearing nonquota
classification, "P-3.' This symbol, "P-3,' refers to a person who lost
United States citizenship through parent's foreign naturalization as
included within section 101(a)(27)(E) and section 349(a)(1) of the
Immigration and Nationality Act (22 C.F.R. 42.3). No dispute is being
made by counsel on the question of alienage and it is presumed that the
finding of expatriation by the consul for the issuance of the immigrant
visa to the applicant was based upon satisfactory evidence thereof. The
only issue presented by the appeal is whether the application for
admission into the United States is too late to enable the applicant to
take advantage of the second proviso contained in section 349(a)(1) of
the Immigration and Nationality Act.
The second proviso to section 349(a)(1) of the Immigration and
Nationality Act which is in issue here reads as follows:
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 parent or parents, may, within 1 year from
the effective date of this Act, apply for a visa and for admission
to the United States as a nonquota immigrant under the provisions
of section 101(a)(27)(E).
The question presented is whether the phrase, "may, within 1 year
from the effective date of this Act, apply for a visa and for admission
to the United States as a nonquota immigrant,' requires that the
admission into the United States be within 1 year, or does it simply
require the application for a visa to be within 1 year, the admission as
a nonquota immigrant to be permissible at a subsequent time.
In studying the question of nonquota classification of expatriated
citizens in the proposed Immigration and Nationality Act, the
subcommittee made the following recommendation:
Likewise, nonquota status for 1 year from the effective date of
the proposed bill is made in the proposed bill for a child who has
lost his citizenship under section 401(a) of the Nationality Act
of 1940, as amended, and for certain persons who seek to regain
their citizenship. /1/
The above-quoted recommendation would appear to confer nonquota
status for a period of 1 year from the effective date of the proposed
act upon persons eligible for such classification. If the intent, as
appears clear, was to confer such nonquota status for the entire period
of the year, it would seem inconsistent to shorten the period during
which the alien might make application for such nonquota status by
requiring that he also be admitted into the United States within 1 year,
since obviously some period of time must elapse between the application
for admission and the actual entry into the United States.
The term "application for admission' is defined in section 101(a)(4)
of the Immigration and Nationality Act as having reference to the
application for admission into the United States and not to the
application for the issuance of an immigrant or nonimmigrant visa. The
phrase under consideration, "may, within 1 year from the effective date
of this Act, apply for a visa and for admission to the United States as
a nonquota immigrant,' supplies the part specifically negated by the
definition of the term "application for admission' by adding the words
"apply for a visa.' If we construe this section to mean that the alien
must make application for admission to the United States within 1 year,
the phrase "apply for a visa' would appear to be surplusage and of no
effect, as patently an application for a visa must precede application
for admission into the United States. The additional words, therefore,
must be given meaning upon the reasoning that Congress did not put words
into a statutory enactment merely for the purpose of surplusage but to
serve some useful purpose.
In the light of the comment of the congressional committee charged
with revision and clarification of the immigration laws, it would appear
that the proper interpretation of the section under consideration is
that the alien is granted nonquota status for a year from the effective
date of the act and has the entire year within which to make application
for nonquota status. If he makes timely application within the year, he
may thereafter be issued a visa and apply for admission to the United
States as a nonquota immigrant after a year subsequent to the effective
date of the act. This construction is in harmony with regulations
issued by the Department of State which provide as follows: /2/
(c) Children expatriates. -- An alien shall, regardless of
ancestry, be accorded a nonquota immigrant status under the
provisions of section 101(a)(27)(E) of the act only if such alien:
(1) Sustains the burden of presenting evidence which
establishes that he was a citizen of the United States and that he
lost such citizenship prior to January 1, 1948, through the
naturalization in a foreign state of a parent or parents as
provided in section 349(a)(1) of the act; and
(2) Makes application for a nonquota immigrant visa under the
provisions of section 101(a)(27)(E) of the act on or before
December 23, 1953.
The State Department regulations merely require that the application
for a nonquota immigrant visa under the provisions of section 101(a)(
27)(E) be made on or before December 23, 1953, that is, within one year
from the effective date of the act. Harmonious constructions of the
same section by different parts of the Government are not only desirable
but should be employed wherever possible unless irreconcilable
differences exist. There is no requirement of policy or of
interpretation requiring a different construction from that already
reached by the State Department, an interpretation which appears to be
clearly in accord with the legislative intent.
Summarizing, it is concluded that the pertinent clause under
discussion means that a person who shall have lost nationality prior to
January 1, 1948, through the naturalization in a foreign state of a
parent or parents, may within 1 year from the effective date of the act
apply for a visa. As long as the application is made within the year,
he falls within the eligible class as far as timeliness of application
is concerned and may thereafter be admitted to the United States with
nonquota status under the provisions of section 101(a)(27)(E).
Order: It is ordered that the appeal by the district director be
dismissed and that the applicant be admitted to the United States for
permanent residence.
(1) Report of the Committee on the Judiciary pursuant to S. Res.
137, Senate Report No. 1515 (81st Cong., 2d sess.), p. 477.
(2) 22 C.F.R. 42.7(c).
Single scheme of criminal misconduct -- Section 241(a)(4) of Immigration and Nationality Act.
When a criminal act accomplishes a specific and individual criminal objective of and by itself, then the alien who performs it becomes deportable when he again commits another such act, provided he is convicted of both. Therefore, conviction on two counts of forgery of Government checks in the same locality on two dates about one month apart with respect to checks made payable to the same person is not regarded as conviction of two crimes arising out of a single scheme of criminal misconduct within the meaning of section 241(a)(4) of the Immigration and Nationality Act. The fact that the modus operandi in each instance was the same, that the victim in each instance was identical, or that the respondent may have had an overall plan envisioning the perpetration of both of the individual crimes is of no moment. Two crimes do arise out of a single scheme of criminal misconduct when both are part and parcel of a course of criminal conduct designed to accomplish a specific and limited criminal objective.
DEPORTABLE:
Immigration and Nationality Act -- Section 241(a)(4) -- Convicted of
two crimes involving moral turpitude; forging and uttering Government
checks -- 18 U.S.C. 495 -- Two counts.
Discussion: On March 2, 1954, this Board dismissed the appeal from
the special inquiry officer's order of deportation. The case is now
again before us on motion for reconsideration.
The record relates to a 27-year-old female alien, a native and
citizen of Poland. She has resided in the United States continuously
since her admission at New York on July 2, 1949, as a nonquota
immigrant, under the provisions of section 4(a) of the Immigration Act
of 1924. She is married to a native-born United States citizen and has
two native-born minor citizen children. At the time of the hearing she
was expecting the birth of a third child.
The respondent was convicted, on her plea of guilty, in the United
States District Court for the District of Connecticut, on May 25, 1953,
on each count of a two-count criminal information charging her with
forging and uttering Government checks (18 U.S.C. 495), committed at
Ansonia, Connecticut, on or about March 3, 1952, and April 3, 1952.
Imposition of sentence was suspended on each of the two counts and the
respondent was placed on probation for a period of two years. Count one
charged that on or about March 3, 1952, respondent, having obtained
possession of a United States Treasurer's check dated March 1, 1952, and
made payable to one A G in the amount of $85, forged the payee's name to
the check and cashed it. The second count charged that on or about
April 3, 1952, the respondent, having obtained possession of a United
States Treasurer's check dated April 2, 1952, and made payable to the
same A G in the amount of $22.50, forged the payee's name to that check
and cashed it.
The question raised on this motion involves construction of section
241(a)(4) of the Immigration and Nationality Act of 1952. Specifically,
the issue to be decided here is whether or not Mrs. Z has been convicted
of two crimes "arising out of a single scheme of criminal misconduct.'
Counsel has referred to a statement we made in our prior opinion,
wherein we stated: "In the instant case the alien was convicted on
pleas of guilty to two counts charging the commission of crimes
violating section 495 of Title 18, U.S.C., in the same locality on two
different dates by forging checks made payable to two different
persons.' He points out that such statement is incorrect, since the
payee was the same in each instance. He then argues that it is because
the checks of only one payee were here involved that there is only one
scheme of misconduct.
We find that the inadvertent misstatement in our prior opinion does
not require any change in the decision we then reached. As we view the
situation, it makes no difference whether the payee was the same or a
different person in each instance. That is, we conclude that the
misstatement was immaterial, for reasons which we will set forth
hereinafter.
Counsel urges that the situation presented in this case has no
parallel to that with which we were confronted in Matter of A , 532/
271, 5, I. & N. Dec. 470, relied upon by us previously, wherein the
alien committed robbery on different occasions, in three different towns
on three different individuals. Apparently, this distinction is based
on the theory that there can be only one "single scheme of criminal
misconduct' when the checks of only one payee are forged and cashed.
Such a construction is not, in our opinion, permissible. To us, the
natural and reasonable meaning of the statutory phrase is that when an
alien has performed an act which, in and of itself, constitutes a
complete, individual and distinct crime, then he or she becomes
deportable when he or she again commits such an act, provided he or she
is convicted of both. The fact that the acts may be similar in
character, that the same person is the victim in each instance, or that
each distinct and separate crime is part of an overall plan of criminal
misconduct is immaterial (cf. Matter of D , E-077114, 5, I. & N. Dec.
728, B.I.A., April 7, 1954).
Counsel also urges that if the respondent's acts did not arise out of
a "single scheme of misconduct,' it is impossible to conceive of any
case where the statutory phrase would apply. In this connection, we
differentiate the situation which obtains here from that wherein two
crimes flow from and are the natural consequence of a single act of
criminal misconduct. That is, we distinguish it from the case where
there are two separate and distinct crimes in a transaction which
morally constitutes only a single wrong. For example, a counterfeiter
may be indicted in one count for possession of a bill, and in another
for passing it, though he cannot pass it without having possession; so
also, a person might break and enter a store with intent to commit a
larceny and in connection therewith commit an assault with a deadly
weapon upon the night watchman who seeks to prevent the larceny (cf.
Matter of D , (supra)). (Note: -- However, with reference to the
latter example, we would reach a different result if, after breaking,
entering, committing larceny and assault in one store, the person did
the same thing in the adjoining store.)
Counsel's final contention is that the decision in the Weiss case
(Weiss v. United States, 120 F.(2d) 472) is controlling here. We,
however, find that it is not. As we read the Weiss case, the
circumstances with which the court was confronted and those now before
us have no parallel. Therefore, we conclude that counsel's contention
in this respect is without merit.
Weiss was hired as an architect by the State of Louisiana to prepare
plans and specifications for a school building, to draw the contract
between the contractor and the State, to supervise and inspect the
actual construction, to issue certificates for expenses and contract
payments as the work progressed and, in general, to represent the State
to assure proper performance of the contract as inexpensively as
possible. He was indicted for using the mails to carry out a scheme to
defraud the State, its educational institutions, and its taxpayers out
of $56,914.42 by fraudulently increasing the contract price, and by
filing and collecting for fictitious extra work, in violation of 18 U.
S.C.A. 338 (now 1341).
Count one of the indictment charged Weiss with mailing his
architect's certificate calling for payment of $3,000, in furtherance of
and for the purpose of executing the scheme to defraud. Count two dealt
with his causing to be mailed his architect's certificate for $74,818.71
from New Orleans, La., to Ruston, La., and count three dealt with his
causing the certificate covered by count two to be mailed from Ruston,
La., to the State auditor, both in furtherance of and for the purpose of
executing the scheme to defraud. The mailing of the certificate covered
by counts two and three occurred about a year subsequent to the mailing
of the certificate covered by count one. Weiss was convicted on all
three counts and received a 5-year sentence on count one, the sentence
on counts two and three being suspended.
On appeal from the conviction by the district court, Weiss contended,
inter alia, that he was tried simultaneously on two separate and
distinct schemes to defraud. That is, apparently, he argued that the
indictment was void for duplicity. The court of appeals, in affirming
the conviction, held that the indictment charged but one "scheme' to
defraud because it appeared from the evidence that the transactions
mentioned in the various counts of the indictment were but separate
steps in the execution of one systematic plan to defraud. It is this
pronouncement of the court that counsel would have us apply to the
present case.
In the first place, in connection with the Weiss case, the court was
considering a different statute from the one involved here. The word
"scheme' in section 241(a)(4) of the Immigration and Nationality Act of
1952 is modified by the word "single,' which is not the case in 18 U.S.
C.A. 338, the statute involved in the Weiss case, and we find this
difference to be most significant. That is, we feel that Congress
created a definitive distinction in the meaning of the word "scheme' as
far as these two statutes are concerned.
Second, we take the fair meaning of section 241(a)(4) to be that when
a criminal act accomplishes a specific and individual criminal objective
of and by itself, i.e. -- without regard to any other such act and when
considered completely apart from it, then the alien who performs it
becomes deportable when he or she commits another such act, provided
both such acts are followed by convictions. As applied to the facts of
the present case, this means that when the respondent received the money
from the first forged check she accomplished a specific criminal
objective; and that when she received the money from the second forged
check she accomplished another and distinct criminal objective. The
accomplishment of each criminal objective, the obtaining of the money in
each instance, was a complete crime in and of itself and without
reference to the other. The fact that the modus operandi in each
instance was the same, that the victim in each instance was identical,
or that the respondent may have had an overall plan envisioning the
perpetration of both of the individual crimes is of no moment, at least
not as we view the situation.
Third, and in our opinion, two crimes do arise out of a "single
scheme' when both are part and parcel of a course of criminal conduct
designed to accomplish a specific and limited criminal objective. To
repeat an example, we refer to the case of the man who breaks and enters
a building to commit larceny and assaults the guard who surprises him in
the act of committing the larceny. The larceny is the specific and
limited criminal objective and the assault merely an incident thereto
and necessary to the accomplishment thereof. In such case, we would
hold the crime of larceny and the crime of assault to be two crimes
arising out of a single scheme of criminal misconduct.
Finally, the construction urged upon us by counsel would, if followed
to its logical conclusion, result in extreme absurdities. It would
render section 241(a)(4) of the Immigration and Nationality Act of 1952
completely inapplicable in any case where an alien committed myriad
crimes, provided he or she first had the foresight to, or even the
prescience to claim that he or she did formulate a broad plan of
criminal misconduct, or even the devotion of his or her entire life to
crime. Such a construction is clearly unjustified and unjustifiable.
On the basis of the foregoing, we find that this respondent has been
convicted of two crimes not arising out of a single scheme of criminal
misconduct. Therefore, we conclude that she is deportable under the
provisions of section 241(a)(4) of the Immigration and Nationality Act
of 1952. No other issue has been presented for our consideration.
Accordingly, we will deny this motion.
Order: It is ordered that the motion be and the same is hereby
denied.
Editor's note: Cf. Matter of J , A-3203990, Interim Decision No.
656 (B.I.A., 1954).
Suspension of deportation -- Motion to reopen to apply for that relief denied where former member of Communist Party did not avail himself of prior opportunity to apply therefor, did not testify in the proceedings, and makes no disavowal of membership.
A motion to reopen to permit the filing of an application for suspension of deportation is denied in the case of a former member of the Communist Party who did not avail himself of a prior opportunity to apply for such relief, who did not testify in the proceedings, and who has made no express disavowal of membership in a subversive organization during the past ten years.
DEPORTABLE:
Act of 1918 -- Member of the Communist Party of the United States
after entry.
Discussion: Respondent's appeal from the order of the special
inquiry officer requiring his deportation was dismissed on September 22,
1953, by this Board. We found that the record established that the
respondent was a voluntary member of the Communist Party of the United
States in 1935. Respondent did not testify. He was given an
opportunity to apply for discretionary relief and did not do so. This
motion is now made for reopening of proceedings to enable respondent to
apply for suspension of deportation.
Because respondent was given an opportunity to apply and did not
avail himself of the opportunity and because he did not testify in the
proceedings, we believe his motion should be denied. Furthermore, the
motion is accompanied by an affidavit signed by the respondent which in
the general language of the statute states his belief that he is
elegible for relief. There is no express disavowal of membership in a
subversive organization within the past 10 years or evidence of such
nature. Oral argument was requested upon the motion to reopen. We find
no need for granting such request. The motion will be denied.
Order: It is ordered that the motion be and the same is hereby
denied.
Misrepresentation -- Inadmissibility under section 212(a)(19) of Immigration and Nationality Act.
An alien who entered the United States in 1952 as an agricultural worker by presenting an alien laborer's permit which he had willfully obtained in another person's name has procured a document by willful misrepresentation of a material fact and is inadmissible to the United States under section 212(a)(19) of the Immigration and Nationality Act.
EXCLUDABLE:
Section 212(a)(19), I. & N. Act -- Procured a visa or other documentation by fraud.
Section 212(a)(20), I. & N. Act -- No passport and no immigrant visa.
Discussion: This is an appeal from the order of the special inquiry
officer excluding appellant on the grounds stated above.
The applicant, a 31-year-old married male, is a native and citizen of
Mexico. He is applying for admission to work as an agricultural laborer
and there is no indication in the record that he is not in possession of
documents entitling him to enter in such a capacity. Inadmissibility is
based upon the fact that in 1952 he had entered the United States as an
agricultural worker by presenting an alien laborer's permit which he had
obtained in another person's name. This was willfully done because that
other person had been given a contract number and had been reached for
the issuance of an agricultural laborer's permit whereas the respondent
had not yet been granted a number, and it appeared to him that the
assignment of contracts would be completed before he would be reached.
There is no other derogatory information concerning him.
We believe the appellant is inadmissible to the United States. An
alien who has procured a document by fraud or willful misrepresentation
of a material fact is inadmissible to the United States (section 212(
a)(19), Immigration and Nationality Act; Matter of R , A-4591363, 5, I.
& N. Dec. 494). The appellant's willful misrepresentation of his
identity concerned a material issue (Matter of B and P , 56152/825 and
56154/758, 2, I. & N. Dec. 638). He, therefore, falls within the
category set forth in section 212(a)(19) and is inadmissible. Since his
inadmissibility is so established, we will not discuss or sustain
inadmissibility on the ground that he was without passport and visa.
Order: It is ordered that the appeal be and the same is hereby
dismissed insofar as it relates to the appellant's exclusion under
section 212(a)(19) of the Immigration and Nationality Act.
Preference quota status -- Section 203(a)(3) of the Immigration and Nationality Act -- Child -- Adoption under Austrian law not legitimation within meaning of section 101(b)(1) of the act.
A child born out of wedlock who is adopted under Austrian law has not
been legitimated by that procedure within the meaning of section
101(b)(1) of the Immigration and Nationality Act, since Austrian law
provides separate procedures for legitimation and adoption each of which
confers a distinct family status. Therefore, such adopted child is not
eligible for preference quota status under section 203(a)(3) of the act.
Discussion: The matter comes forward on appeal from the order of the
District Director, Baltimore, dated February 2, 1954, denying the visa
petition on the ground that the beneficiary cannot be considered a child
within the meaning of section 101(b)(1) of the Immigration and
Nationality Act.
The petitioner, a permanent resident alien, seeks preferential status
on behalf of the beneficiary under the provisions of section 203(a)(3)
of the Immigration and Nationality Act. This section provides a
preference for the children of permanent resident aliens. The term
child is defined in section 101(b)(1) of the Immigration and Nationality
Act to include a legitimate or legitimated child.
It is conceded that the beneficiary was born out of wedlock.
However, it is claimed that the child has been legitimated by virtue of
an adoption which it is alleged under Austrian law is the equivalent of
legitimation.
In order to resolve the question presented, inquiry was addressed to
the Foreign Law Section of the Library of Congress which under date of
May 11, 1954, submitted a memorandum entitled "Adoption and Legitimation
under Austrian Law.' This memorandum sets forth that Austrian family law
is basically regulated by the Austrian General Civil Code of June 1,
1811, as amended. Under this code there are two methods of giving a
child a status in the family similar to a child born in wedlock. One is
adoption and the other is legitimation.
There exist presently two methods of legitimation. The first is
legitimation by subsequent marriage which is automatic. The second is
legitimation by act of grace of the president which is termed
legitimation pursuant to special petition of grace (gnadengesuch).
Thus, legitimation upon special petition of grace is a method of
obtaining legitimation different from that by subsequent marriage. It
is not adoption.
The memorandum then sets forth translation of the pertinent
provisions of the Austrian General Civil Code. Section 161 relates to
legitimation by subsequent marriage and provides that children who are
born out of wedlock and have joined the family by virtue of the
subsequent marriage of their parents shall, along with their own
offspring, be counted the children born in wedlock; however, they may
not attack the status of primogeniture and other rights already acquired
by the legitimate children conceived in a marriage entered into in the
meantime. Section 162 of the Austrian General Civil Code refers to
legitimation by act of grace and provides that illegitimate birth shall
not prejudice a child with respect to its civil rights and means of
making a living. For this purpose no special act of grace by the
president of the federal republic shall be required whereby the child is
declared legitimate. The parents only may apply for such a legitimation
in cases where they desire that the child should, in the same manner as
a legitimate child, share the privileges of their estate and any
property which may devolve, without restriction, through descent and
distribution. This act of grace shall not affect the other members of
the family.
The subject of adoption is dealt with in sections 179 to 185 of the
Austrian General Civil Code. Section 179 provides that persons who have
not taken solemn vows and who have no legitimate children of their own,
may adopt. Section 181 provides that the adoption may take place only
with the consent of the legitimate father, or if unobtainable, with the
consent of the mother, guardian and the court. Section 183 provides
that unless otherwise provided by law, the same legal rights shall exist
between adoptive parents and adoptive child and his or her descendents
as between legitimate parents and their children.
The subject of Inheritance by Operation of Law of Legitimated
Children under Austrian Law is dealt with in section 752, section 533
and section 555 of the code. These sections provide for differences in
inheritance rights as among children born out of wedlock and legitimated
by subsequent marriage of the parents; an illegitimate child,
legitimated by the president's act of grace; and adoptive children.
It is to be noted, however, that Austrian law makes a distinction
between legitimated children and adopted children. The fact that there
exist two procedures, the one to effect legitimation and the other to
effect adoption, makes it clear that these two procedures are not the
same but are different both in their application and in their legal
effect. Similar statutes exist in this country. The terms, however,
are not interchangeable, but provide for the acquisition of two distinct
family statuses. The existence of such different statuses leads to the
conclusion that adoption is not legitimation and does not satisfy the
requirement of the immigration statute that a child as defined is one
who has been legitimated.
The petitioner is the mother of the beneficiary born out of wedlock.
This relationship does not confer a preferential status upon the
beneficiary (Matter of A , VP 6-2026, 5, I. & N. Dec. 272 (A.G., 1954)).
Nor does the fact that the beneficiary has been adopted assist the
beneficiary in obtaining preferential status. Upon the present record
the visa petition must be denied. It has been indicated that there is
pending with the Austrian Federal President a special petition of grace
or "gnadengesuch.' As already indicated, this latter procedure would be
equivalent to legitimation and would confer the required status upon the
beneficiary. Upon the present record the petition will be denied.
Should the application for legitimation by act of grace be completed,
the legitimating parent may then file another petition for an immigrant
visa on behalf of the beneficiary.
Order: It is ordered that the appeal be and the same is hereby
dismissed.
Motion to reopen and reconsider -- Jurisdiction.
The Board of Immigration Appeals is without jurisdiction to act on a
motion to reopen and reconsider in a deportation proceeding (including
arrest and deportation and exclusion and deportation) where the alien
departed from the United States subsequent to the filing of the original
appeal and prior to the Board's action thereon. Such departure
constitutes withdrawal of the appeal and the initial decision in the
case is final to the same extent as though no appeal had been taken (8
C.F.R. 6.12; 8 C.F.R. 236.14). The Immigration and Naturalization
Service also is without jurisdiction to act since the alien has departed
from the United States (8 C.F.R. 8.1).
Discussion: On September 11, 1953, this Board dismissed the alien's
appeal from the decision of the special inquiry officer excluding him on
the ground that he was inadmissible under the Immigration and
Nationality Act of 1952 as one affiliated with the Communist Party of a
foreign state. Appeal from the order of the special inquiry officer was
filed on August 13, 1953. On the following day the alien departed from
the United States. We had no knowledge of this departure when we
entered our decision of September 11, 1953. This motion for reopening
and reconsideration was submitted on November 24, 1953. It is based on
new evidence, which it is urged would establish appellant's
admissibility and the fact that membership in the subversive
organization was involuntary. The facts have been fully stated in the
special inquiry officer's order and since they are not involved at this
time, will not be repeated.
We believe we are without jurisdiction to act on the motion. Lack of
jurisdiction stems from the fact that our order of September 11, 1953,
is a nullity and must be regarded as if it had never been entered. This
conclusion is required by 8 C.F.R. 6.12 which in pertinent part
provides: "Departure from the United States of a person who is the
subject of deportation proceedings /1/ subsequent to the taking of an
appeal but prior to a decision thereon shall constitute a withdrawal of
the appeal and the initial decision in the case shall be final to the
same extent as though no appeal had been taken' (see also 8 C.F.R.
236.14). In law there exists no decision of this Board in this case.
It follows that we are without jurisdiction to entertain a motion to
reconsider the decision. No. order of the Board exists; the alien is
outside the United States; we are without jurisdiction to reopen
proceedings (8 C.F.R. 6.2).
If the alien were in the United States, he could have addressed a
motion for reconsideration or reopening to the special inquiry officer
(8 C.F.R. 8.1(c)). Since he is not, a motion by him or on his behalf
for reopening or reconsideration cannot be made effectively. This is
because the regulations provide that "A motion to reopen or a motion to
reconsider shall not be made by or in behalf of a person who is the
subject of deportation proceedings /2/ subsequent to his departure from
the United States' (8 C.F.R. 8.1). It follows, therefore, that neither
we nor the Service has jurisdiction in this matter. The alien must make
a new application for admission before jurisdiction can be acquired.
The motion will be dismissed for lack of jurisdiction.
While we have no jurisdiction to consider this case, we will briefly
discuss counsel's contention that the alien, who applied for admission
as a returning resident, was deprived of due process because he was not
given the opportunity to gather proper evidence as to his admissibility.
If this issue were before us, we would find the contention wholly
without merit. We have carefully reviewed the record and find that the
alien was represented by counsel; that he was informed of his right to
present evidence and cross-examine; that his counsel participated in
the hearing; that no request for delay in the hearing was made so that
additional evidence could be submitted; and that no claim of denial of
due process was made in connection with the appeal. In fact, two
affidavits from Cuba are attached to the appeal and were considered. We
would find that the respondent had been accorded full due process.
Attached to the motion are a number of affidavits. These should be
returned to the appellant for whatever use they may serve him if he
desires to make a new application.
Order: It is ordered that the motion be and the same is hereby
dismissed for want of jurisdiction.
(1) The phrase "deportation proceedings' here includes both arrest
and deportation, and exclusion and deportation proceedings.
(2) See footnote 1.
Marriage -- Effect of annulment in California on voidable marriages.
Under California law, the rule is firmly established that the annulment of a void or voidable marriage makes the marriage a nullity ab initio. Therefore, when judgment is entered by the court, the marriage is considered as having been judicially annulled retroactively to the date of inception.
CHARGE:
Warrant: Act of May 14, 1937 -- Preference quota visa obtained by
fraud -- Contracting a marriage judicially annulled after entry
retroactively to date of marriage.
Discussion: This is an appeal from the order of the special inquiry
officer finding the respondent deportable on the ground stated above and
denying discretionary relief.
Respondent is a 39-year-old married male, native and citizen of
Yugoslavia, who was admitted to the United States for permanent
residence in 1950 upon presentation of a preference quota immigration
visa. The special inquiry officer found that the evidence establishes
that the preference quota visa which the respondent presented to secure
admission was secured by fraud in that it was based on a marriage which,
subsequent to respondent's entry, was judicially annulled retroactively
to the date of the marriage. Counsel contends that the annulment was
invalidly issued by the court; and that it is not retroactive to the
date of the marriage. Further, it is requested that as a discretionary
matter, the alien be permitted to remain in the United States because he
is of good character and would become a good citizen.
Respondent was given the status of a first preference quota immigrant
by reason of his marriage on December 9, 1949, in France. This marriage
was annulled on January 14, 1952, by the Superior Court of the State of
California, in and for the county of Los Angeles. The findings of fact
and conclusions of law entered by the court reveal that the female's
"consent to said marriage contract was induced by fraud on the part of
the defendant (respondent) in that at the time said marriage was
performed and said contract entered into defendant did not intend to
cohabit with the plaintiff upon arriving in the United States of America
and married plaintiff for the sole purpose of obtaining a visa to gain
entry into the United States.' The court concluded that "the marriage is
voidable and should be annulled because of defendant's fraud.' On
January 14, 1952, judgment of annulment of a voidable marriage was
entered holding that "the marriage heretofore entered into by and
between plaintiff and defendant be and the same is hereby annulled.'
Respondent was represented by counsel who appeared and agreed to the
entry of judgment by default.
Deportation of respondent is sought under section 3 of the act of May
14, 1937, which makes deportable "any alien who at any time after
entering the United States is found to have secured either a nonquota or
preference-quota visa through fraud, by contracting a marriage which,
subsequent to entry into the United States, has been judicially annulled
retroactively to date of marriage.'
The first issue we must therefore determine is whether the marriage
in question has been judicially annulled retroactively to the date of
marriage. Counsel urges that the judgment, as a matter of law, did not
annul the marriage retroactively to the date of the marriage. He
distinguishes between the effect of an annulment on a void and a
voidable marriage. While he agrees that the annulling of a void
marriage operates retroactively, he contends that a judgment annulling a
voidable marriage is effective only from the date of judgment, and that
the marriage involved herein, if a proper subject for annulment at all,
is a voidable marriage.
We agree that the marriage is a voidable one, but we do not find that
the contention that its nullity is effective from the date of judgment
is supported by the California decisions. A review of these decisions
reveals that the rule is firmly established that the annulment of a
voidable marriage makes the marriage a nullity ab initio. In Estate of
Gregorson, 160 Calif. 21, 25, 116 P. 60, the court stated that even if a
marriage is only voidable a decree of nullity "determines that no valid
marriage ever existed.' This was cited with approval in McDonald v.
McDonald, 6 Calif.(2d) 457, 58 P.( 2d) 163.
In re Eichhoff, 101 Calif. 600, 36 P. 11, the court stated concerning
a voidable marriage, "It did not render the marriage void, but simply
declared that it had been void, and the marriage thereby annulled is to
be regarded as never having, in fact, existed, except insofar as was
necessary to protect the civil rights that others may have acquired in
reliance upon its apparent validity.'
In Coats v. Coats, 160 Calif. 671, 118 P. 441, the court stated the
following concerning a voidable marriage: "The effect of a decree of
nullity is to declare that the marriage was void from the beginning.'
Millar v. Millar, 175 Calif. 797, 167 P. 394, involved among other
matters the annulment of a marriage induced by fraud -- a voidable
marriage. The nature of such an annulment was explained by the court as
follows:
* * * An annulment proceeding is maintained upon the theory
that, for some cause existing at the time of marriage, no valid
marriage ever existed. This is true even though the marriage be
only voidable at the instance of the injured party, or in the
words used in Estate of Gregorson * * *, "capable of being
annulled.' And the decree of nullity in such a proceeding
determines that no valid marriage ever existed. * * *
Millar is cited in support of the statement in Withers v. Superior
Court of California, 91 Calif.App. 735, 267 P. 547, that after the entry
of an annulment decree, the parties were "as though they had never been
married.'
Counsel has chosen to ignore these cases which we have cited. We,
therefore, do not have the benefit of his comment upon them. These
cases establish the rule in California to be that a voidable marriage
upon annulment is to be regarded as having never existed, except insofar
as is necessary to protect the civil rights that others may have
acquired in reliance upon its apparent validity. Cases cited by counsel
are not pertinent. He relies upon In re Gosnell's Estate, 63
Calif.App.(2d) 38, 146 P.(2d) 42; and In re Karau's Estate, 26 Calif.
App.(2d) 606, 80 P.(2d) 108.
Gosnell's Estate is a case which concerned the fact that a California
court had annulled a marriage which had occurred in Nevada and caused
the annulment decree to read that the marriage was void ab initio. On
appeal, the court held that in determining the right of a party to seek
an annulment, the California courts are "governed by the law which
determines the validity of the marriage,' and that since the marriage in
question occurred in Nevada, the law of Nevada was controlling. The law
of Nevada provided that a marriage "shall be void from the time its
nullity is declared.' The appeal court held that since the Nevada law
was controlling, and since it provided for the nullification of the
marriage as of the date of judgment, the California tribunal was without
authority to annul the marriage ab initio. It is undisputed that the
California law does not contain the same limitation as the Nevada law.
Gosnell's Estate construed the law of Nevada, not the law of California,
regarding annulment. The issue before us was not presented (See Briggs
v. United States, 90 F.Supp. 135, 140, Court of Claims, footnote 1).
Karau involved the effort of a surviving sister of a person devoid of
understanding to obtain letters of administration in California in
opposition to the efforts of the representative of the decedent's
husband. The surviving sister contended that the marriage of her
sister, which had taken place in Nevada, was void because of the
decedent's lack of understanding. Neither of the parties to the
marriage had ever attempted to attack the marriage and no annulment had
ever been obtained. The marriage terminated by reason of the death of
one of the parties. The court ruled that a voidable marriage existed
under the laws of both California and Nevada; that the marriage had
never been declared void in accordance with the laws of either state.
The marriage was not void under California laws because an annulment had
not been obtained. The marriage was not void under Nevada law, because
the Nevada law provided that the marriage of a person devoid of
understanding shall be void from the time its nullity is declared by the
court. Nowhere do we find any support for counsel's contention that in
this case the court identified "a California annulment of a voidable
marriage as identical with one under the laws of Nevada where an
annulment takes effect only from its declaration.' No annulment was
involved.
As further proof of his contention that the California annulment in
the instant case is effective from the date of the declaration of
nullity and not from its beginning, counsel has established that in
California there are two different court forms for the entry of judgment
of annulment by default. One form relates to the annulment of a "void
marriage' and reads that the marriage is "hereby declared to be void
from the beginning, and is ennulled'; the other relating to a "voidable
marriage' declares the marriage is "annulled' without the phrase "to be
void from the beginning.' The reason for the distinction in the entry of
the judgments has not been made clear to us. However, we must assume
that it has some meaning not related to defining the date of the nullity
of the marriage, for the law clearly establishes that the marriage is
void ab initio whether it was classified as a voidable or void marriage.
We conclude that the annulment of the marriage herein, except for
certain matters with which we are not concerned, voided the marriage ab
initio -- retroactively.
We come now to counsel's contention that the decree of annulment was
invalidly issued, because the law which determines the validity of the
marriage determines its nullification and the law of France where the
marriage occurred does not make the alleged fraud of respondent a ground
for annulment. It is also urged that fraud was committed upon the court
in obtaining the annulment. An annulment entered under California law
may be collaterally attacked, and the Government could attack this
decree if respondent had made it the basis of rights and it desired to
attack it (Briggs v. United States, supra; see Price v. Price, 24
Calif.App.(2d) 462, 75 P.(2d) 655). However, the Service does not
attack the validity of the annulment and we believe respondent is barred
from attacking it here on the ground urged. First, we must observe that
the court which granted the annulment had jurisdiction of both parties
who were domiciled and resided in California. If any fraud were
involved, it was not exercised to give the court a jurisdiction which it
did not possess. The parties were properly before the court.
Furthermore, section 86 of the California Civil Code provides that "A
judgment of nullity of marriage is conclusive only as against the
parties to the action and those claiming under them.' The judgment of
annulment would therefore appear to be conclusive as to the respondent,
a party to the action. He is barred from attacking it in the manner
attempted herein (see Price v. Price, supra). In addition, we note the
decree was entered with at least the tacit consent of respondent who
made no attempt to oppose the grant of annulment based on his fraud when
he had his day in court. He refers to no attempt made subsequently to
purge the record of the alleged fraud. He has taken advantage of this
decree and caused an innocent third party to enter into marriage with
him. Under all these circumstances, we do not believe that the question
as to whether the facts in the case would be grounds for an annulment
under the laws of France or whether fraud was practiced upon the court
in establishing a ground of annulment, is a proper subject for inquiry
herein.
The final contention for consideration is counsel's claim that the
entry of a judgment of annulment, instead of a decree of divorce, should
be considered a fortuitous matter; and that the respondent should be
held as one who was merely divorced. We do not believe that a decree of
a court annulling a marriage should be assumed to be other than the
result of the court's desire to enter a proper decree upon the facts
before it. "The grounds for divorce in California are entirely
different from the grounds for annulment and the court would scarcely
grant one where the other was indicated' (Briggs v United States,
supra). Furthermore, "annulment is not a relief granted promiscuously
as a matter of right.' "The State is interested in seeing to it that no
marriage is declared void as a result of fraud or collusion, and that
the statutory grounds on which the annulment is sought actually do
exist' (Maslow v. Maslow, 117 Calif.App.(2d) 237, 255 P.(2d) 65). A
judgment of annulment was entered. We cannot say that it was a decree
of divorce.
We conclude that the marriage which was the basis for the issuance of
the preference quota visa respondent obtained was subsequent to his
entry judicially annulled retroactively to the date of marriage and that
he was properly found deportable. Application for discretionary relief
has been made. We believe this was properly disposed of by the special
inquiry officer and requires no further comment.
Order: It is ordered that the appeal be and the same is hereby
dismissed.
Inadmissibility under section 212(a)(19) of the Immigration and Nationality Act -- Retrospective and prospective application.
The first part of section 212(a)(19) of the Immigration and Nationality Act which relates to procuring a visa or other documentation by fraud or by willful misrepresentation of a material fact is retrospective as well as prospective a application. However, the second part, which relates to seeking to enter the United States by fraud or by willfully misrepresenting a material fact is prospective in application only. Hence, prior fraud or misrepresentation in seeking to enter the United States, which falls within the second part of section 212(a)(19), does not result in a finding of inadmissibility.
DEPORTABLE:
Act of 1917 -- Entered at other than a designated port.
Act of 1924 -- No immigration visa.
Act of 1918 -- No passport.
Act of 1929 -- Arrested and deported -- Reentered within one year.
Act of 1917 -- Afflicted with tuberculosis at time of entry.
Discussion: The record relates to a native and citizen of Mexico who
last entered the United States near Brownsville, Tex., on June 9, 1941.
He has been found deportable on the grounds stated above and on March 8,
1949, an order was entered by the Assistant Commissioner granting the
respondent the privilege of voluntary departure and the advance exercise
of the discretion contained in the 7th proviso to section 3 of the
Immigration Act of 1917 to cover his inadmissibility as one who is or
may be afflicted with tuberculosis, and, in addition, permission to
reapply after arrest and deportation was granted. On October 22, 1952,
this Board approved the order of the Assistant Commissioner dated May 6,
1952, authorizing preexamination in addition to the voluntary departure
privilege and the advance exercise of the discretion contained in the
7th proviso to section 3 of the Immigration Act of 1917 to cover
affliction with tuberculosis. Under date of January 20, 1954, the
district director informed the respondent that since he failed to effect
departure under outstanding order of voluntary departure, the last
extension of temporary stay having expired on January 1, 1954, it was
proposed to recommend a warrant be issued directing deportation to
Mexico, and appeal has been taken from this proposal.
In connection with the appeal, attorney for the respondent has
enclosed a copy of a letter dated December 14, 1953, from the American
Consul at Windsor, Ontario, Canada. This letter referred to the fact
that the respondent had entered the United States on August 18, 1934, on
a border-crossing card belonging to a friend, and that after an
examination of the facts in the case, it was determined that he made a
willful misrepresentation of material fact in connection with his entry
into the United States at Laredo, Tex., on August 18, 1934. The consul,
therefore, advised that respondent is ineligible to receive an immigrant
visa and should he appear personally at the consulate to execute a
formal application for an immigrant visa, the examining officer would
have no alternative other than to deny him an immigrant visa under
section 212(a)(19) of the Immigration and Nationality Act. Counsel for
the respondent requests that the respondent be granted a further
extension of time in which to depart voluntarily and that the 7th
proviso already granted him be extended to cover the charge of
inadmissibility set forth by the American consul. However, inasmuch as
this is a new ground of inadmissibility set up by the Immigration and
Nationality Act, the 7th proviso to section 3 of the Immigration Act of
1917 cannot be used to waive this ground of inadmissibility.
There remains for consideration, in connection with this appeal,
determination of whether the ground of inadmissibility found by the
American consul is a valid one. Section 212(a)(19) of the Immigration
and Nationality Act provides that the following class of aliens shall be
ineligible to receive visas and shall be excluded from admission into
the United States:
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.
An examination of this provision readily discloses that it is
composed of two parts, which may be divided as follows:
(a) Any alien who seeks to procure, or has sought to procure,
or has procured a visa or other documentation, by fraud, or by
willfully misrepresenting a material fact;
(b) Any alien who seeks to enter the United States by fraud, or
by willfully misrepresenting a material fact.
It is to be noted that the first part referring to procuring a visa
or other documentation by fraud or by willfully misrepresenting a
material fact contains words in the past tense as well as words in the
present tense. This part is retrospective as well as prospective in
application. However, the second part referring to seeking to enter the
United States by fraud or by willfully misrepresenting a material fact
does not contain any words in the past tense. The omission of words in
the past tense as to the second part leads to the conclusion that it was
intended that the clause referring to entering the United States by
fraud or by willful misrepresentation of a material fact should be only
prospective in application and should not cover acts of that nature
which occurred prior to the passage of the Immigration and Nationality
Act.
In the instant case the respondent testified that he effected an
entry into the United States on August 18, 1934, by presenting a
border-crossing card that was not issued to him but to another man.
This conduct did not constitute a ground of inadmissibility under the
former immigration statute, inasmuch as there was no showing that he had
procured this border-crossing card by fraud or by misrepresentation. We
conclude that the respondent is not subject to an additional ground of
inadmissibility under the Immigration and Nationality Act of 1952
because of the events which occurred on August 18, 1934. A comparison
with section 212(a)(28) and (31) of the Immigration and Nationality Act
appears to confirm this interpretation since both of those subsections
specifically refer to aliens who are, or at any time have been members,
or who, at any time shall have performed acts included within the
proscribed conduct set forth therein. It is, therefore, considered that
the previous grant of the discretion contained in the 7th proviso to
section 3 of the Immigration Act of 1917 covers any ground of
inadmissibility which may be lodged against the respondent insofar as
any facts developed in this record are concerned.
We shall direct that the alien be granted an additional period of
time within which to comply with the order of the Assistant Commissioner
dated May 6, 1952. However, inasmuch as there appears to be a conflict
of construction as indicated by the holding of the Department of State
and by its regulations, 22 C.F.R. 42.42(i), which provides that an alien
shall be found to be ineligible to receive an immigrant visa under the
provisions of section 212(a)(19) of the act if the consular officer,
after reviewing the evidence, knows of or has reason to believe that
such alien committed an act, regardless of the time of commission, which
would constitute fraud or willful mispresentation of a material fact for
the purpose of gaining admission into the United States, the Immigration
and Naturalization Service has requested that the case be forwarded to
the Attorney General for review.
Order: It is ordered that the alien be granted an additional period
of 6 months from date of notification of the decision within which to
comply with the order of the Assistant Commissioner dated May 6, 1952.
In accordance with the provisions of section 6.1(h) of Title 8, Code
of Federal Regulations, the case is certified to the Attorney General
for review of the Board's decision.
The determination of the Board of Immigration Appeals dated May 19,
1954, is affirmed.
Editor's Note: See Matter of M , A-8945846, Interim Decision No.
736.
Citizenship -- Expatriation -- Departure from or remaining outside United States to avoid military service -- Section 401(j) of Nationality Act of 1940, as amended -- Excludability under section 212( a)(22) of Immigration and Nationality Act.
Grounds which serve as a basis for a finding of expatriation under section 401(j) of the Nationality Act of 1940, as amended, will also serve as a basis for exclusion under section 212(a)(22) of the Immigration and Nationality Act, in view of the similarity of the language in these two sections.
EXCLUDABLE:
Immigration and Nationality Act: Section 212(a)(20) -- No immigrant visa.
Section 212(a)(22) -- Departed to evade military service.
Discussion: This case is before us on appeal from the special
inquiry officer's order of May 29, 1953, directing that the appellant be
excluded from the United States on the grounds stated above.
The facts of this case have been succinctly set forth in the opinion
of the special inquiry officer and need not be repeated here. Briefly,
that official has concluded that the appellant, at birth a dual national
of the United States and Mexico by virtue of birth in the latter and
under section 1993 of the Revised Statutes of the United States, lost
his United States citizenship and effected his expatriation under the
provisions of section 401(j) of the Nationality Act of 1940 by departing
from and/or remaining outside of the United States in time of war or
national emergency for the primary purpose of evading or avoiding
training or service in the land or naval forces of the United States.
/1/ His inadmissibility on the above-stated grounds is predicated on
that conclusion.
We have carefully considered the evidence of record and concur in the
conclusion of expatriation reached by the special inquiry officer. It
is clear to us that the actions on the appellant's part are inconsistent
with his present denials. Those actions make inescapable the conclusion
that he departed from and/or remained outside of the United States for
the primary purpose of escaping military service in the Armed Forces of
this country. As pointed out by the special inquiry officer, we are not
bound by the appellant's testimony as to his motives where, as here,
such testimony is clearly contradicted by his conduct. We have so held
in the past, /2/ and we find nothing in this record calling for a
reversal of that ruling.
With respect to the appellant's inadmissibility on the ground last
stated above, we note that section 212(a)(22) of the Immigration and
Nationality Act of 1952 provides a ground of exclusion appearing for the
first time in the immigration laws in the Immigration and Nationality
Act of 1952. However, we also note that section 401(j) of the
Nationality Act of 1940 contained a similar provision relating to
expatriation. In view of the similarity of the language in these two
sections, we hold that grounds which serve as a basis for a finding of
expatriation under section 401(j) of the Nationality Act of 1940 will
also serve as a basis for exclusion under section 212(a)(22) of the
Immigration and Nationality Act of 1952. Accordingly, and on the basis
of the foregoing, we concur in the conclusion of the special inquiry
officer that the appellant is excludable under section 212(a)(22) of the
Immigration and Nationality Act.
However, we do not find that the evidence of record sustains a
finding that the appellant is excludable under the provisions of section
212(a)(20) of the Immigration and Nationality Act of 1952. The evidence
of record does not establish, to our satisfaction at least, that the
appellant is an immigrant at this particular time. Therefore, we will
not affirm the special inquiry officer's order of exclusion insofar as
it is based on section 212(a)(20) of the Immigration and Nationality
Act.
The appellant, in a letter submitted in support of the appeal, has
expressed a belief that he should not be denied permission to enter the
United States on the ground that he willfully tried to evade military
service in the United States. He bases this belief on the following
factors: (a) A consular certificate is not sufficient to establish
prima facie evidence of American citizenship; (b) that in cases where
one of the parents is an alien (in this case his father), the rights and
duties of citizenship shall not descend unless the child comes to the
United States and resides therein continuously for at least 5 years
immediately previous to his 18th birthday and unless, within six months
after the child's 21st birthday he shall taken an oath of allegiance
before judges to the United States of America as prescribed by the
Immigration and Naturalization Service; (c) that he had dual
nationality before becoming 21 years of age and the fact that he was in
Mexico at the time of attaining military age in the United States was
merely coincidental and should not, by any fair means, be construed to
imply that he was of his own volition trying to evade service; (d) that
he did not intend to evade military service in any of the branches of
the Armed Forces of the United States. Apparently, by the foregoing,
appellant is contending that because he has asserted Mexican citizenship
rather than citizenship of the United States he has thereby nullified
the effect of his departing from and/or remaining outside of the United
States.
We find the appellant's contentions to be without merit. As we view
the situation, the question of the appellant's citizenship, as raised by
him, is immaterial to the present consideration. The fact remains that
under the present law he is excludable, even if he was always an alien
and never a citizen of this country, if he departed from and/or remained
outside of the United States to escape military service in the Armed
Forces of this country. Also, and as previously pointed out in this
opinion, the evidence of record demonstrates beyond any question of
doubt that he did depart from and/or remain outside the United States
for the primary purpose of evading or avoiding military service in the
Armed Forces of this country.
No other issues have been presented which require our consideration.
Therefore, we will now enter an appropriate order.
Order: It is ordered that the excluding decision of the special
inquiry officer be and the same is hereby affirmed, solely on the ground
that the alien is inadmissible as one who has departed from and/ or
remained outside of the United States for the primary purpose of evading
or avoiding training or service in the Armed Forces of the United States
in time of war or national emergency.
(1) Appellant, upon attaining the age of 21, obtained a certificate
of Mexican nationality on the basis of birth in Mexico and failure to
exercise his foreign nationality. He does not now assert United States
citizenship.
(2) Matter of G R , A-6732816, 3, I. & N. Dec. 141, 153.
Ineligible to citizenship -- Section 315(a) of the Immigration and Nationality Act -- Applied for and received relief from training and service in the Armed Forces of the United States -- Excludability under section 212(a)(22) of the act.
A lawful permanent resident of the United States who applied for and received relief from training and service in the Armed Forces of the United States under the Universal Military Training and Service Act of 1951 (50 U.S.C.A. Appendix 454(a)) is ineligible to citizenship under section 315(a) of the Immigration and Nationality Act and is excludable from the United States under section 212(a)(22) of that act even though he was not entitled under the law to apply for and receive such exemption from military training and service. (Matter of D , A-3203582, 5, I. & N. Dec. 301, adhered to. Position supported by decision U.S.D.C. for Southern District of New York, Petition of S , No. 614454, 10-21-53.)
EXCLUDABLE:
Section 212(a)(22) -- Immigration and Nationality Act -- (Ineligible
to citizenship -- Applied for and received relief from training and
service in the Armed Forces of the United States).
Discussion: This case is before us on appeal from the special
inquiry officer's decision of March 29, 1954, ordering that the
appellant be excluded from admission to the United States on the
above-stated ground. The request here is that the order of the special
inquiry officer be reversed.
The subject is a 25-year-old single male alien, a native and citizen
of France, who was lawfully admitted to the United States for permanent
residence on December 9, 1951. Thereafter, he registered for military
service and, on August 7, 1952, was placed in class IV-C, this status to
continue to December 10, 1952. On January 8, 1953, he was notified that
he had been placed in class I-A. On January 15, 1953, he executed and
filed with his local draft board Form SSS 130, "Application By Alien For
Relief From Training and Service In The Armed Forces.' The following
day, January 16, 1953, he was granted relied from training and service
and placed in class IV-C. Shortly thereafter he applied for and was
issued, on March 27, 1953, a permit to reenter the United States valid
to March 27, 1954. He presented such document at the time he applied
for readmission at New York on March 20, 1954, but was then excluded for
the reason stated above.
The sole issue we are called upon to determine in this case is the
effect of the alien's application for, and the subsequent granting by
Slective Service authorities of, exemption from military training and
service.
It is urged that at the time the subject executed form SSS 130, he
was a permanent resident alien and as such not eligible under the law to
apply for or receive exemption from training or service. It is argued
that, therefore, the filing of the form and the granting of the
exemption are a nullity, i.e., without legal effect.
Support for the foregoing argument has been sought in the decision of
the United States District Court for the Eastern District of Michigan,
Southern Division, in the Petition of Ajlouny (77 F.Supp. 327 (1948)).
In that case, the alien, a native and citizen of Palestine, made a claim
for exemption from military service as a neutral alien under the
provisions of section 3(a) of the Selective Training and Service Act of
1940, 50 U.S.C.A., Appendix, section 303(a), by executing the
appropriate selective service form, known as Form 301, in which he
applied as a neutral alien for relief from liability from military
service and he was given the classification which recognized such a
status. The basis for the exemption applied for and granted was set
forth in 50 U.S.C.A., Appendix, section 303(a):
That any citizen or subject of a neutral country shall be
relieved from liability for training and service under this Act
if, prior to his induction into the land or naval forces, he has
made application to be relieved from such liability in the manner
prescribed by * * * the President, but any person who makes such
application shall thereafter be debarred from becoming a citizen
of the United States.
At the time involved in the Ajlouny case, the Selective Service
Director had listed Palestine as a neutral country. The court therein
pointed out that the action of the Director of Selective Service in
listing it as such did not make it so and found that, in fact, Palestine
was not a neutral country. The court then held: "It follows,
therefore, that the petitioner's claim for exemption as a citizen of a
neutral country was a nullity and without legal effect, since he was not
in fact a citizen of such a country and the section could have no
application in this case.' That is the ruling we are requested to apply
to the facts of this case.
The provisions of the Universal Military Training and Service Act of
1951 govern this case. The section thereof here pertinent 50 U.S.C.
A., Appendix, sec. 454(a) reads as follows:
* * * Every male alien admitted for permanent residence * * *
shall be liable for training and service in the Armed Forces of
the United States: * * * provided further, that any male alien *
* * who has remained in the United States in a status other than
that of a permanent resident for a period exceeding 1 year * * *
shall be liable for training and service in the Armed Forces of
the United States, except that any such alien shall be relieved
from liability for training and service under this title said
sections if, prior to his induction into the Armed Forces he has
made application to be relieved from such liability in the manner
prescribed by and in accordance with rules and regulations
prescribed by the President; but any alien who makes such
application shall thereafter be debarred from becoming a citizen
of the United States. * * *
Thus, it appears that the appellant was not entitled under the law to
apply for or receive an exemption from military service. However, the
fact remains that he did request such relief and it was granted to him.
That is, the appellant applied for privileges under the law of this
country and received the full benefit of exemption from military
service.
We note that in rendering his decision, the special inquiry officer
relied upon a prior decision of this Board (Matter of D , A-3203582, 5,
I. & N. Dec. 301 (1953)). That case involved the same issue as was
before the court in the Petition of Ajlouny, (supra), and was subsequent
thereto. In reaching that decision, we relied upon advice furnished by
the Deputy Attorney General to the Acting Legal Advisor of the
Department of State on March 10, 1949, to the effect that aliens
situated as was the one in the case we were considering were ineligible
to citizenship and, therefore, under section 13(c) of the Immigration
Act of 1924 unable to obtain immigration visas. The Deputy Attorney
General's advice continued as follows:
I arrive at this conclusion simply by applying to the situation
the plain language of section 3(a) of the Selective Training and
Service Act of 1940. These aliens, as nationals of Palestine,
asserted their Palestinian nationality and asserted the neutrality
of Palestine in their applications to be relieved from liability
for training and service under the Selective Training and Service
Act of 1940. As the result of such assertions by the aliens,
their applications for exemption from military service were
granted and they were not called upon to, nor did they, render any
military service to the United States. In these circumstances
section 3(a) clearly debars them from becoming citizens of the
United States.
I have arrived at my opinion in this matter without considering
the question raised by the aliens as to whether Palestine was
neutral at the times of their applications for exemptions from
military service. The arm of the executive branch of the
Government charged with administering the Selective Training and
Service Act of 1940, namely, the Selective Service System,
regarded Palestine as a neutral country for the purposes of that
act. Whether that determination may be questioned by anyone
outside the executive branch of the Government it is unnecessary
to decide. It is clear to me that these aliens, having themselves
asserted the neutrality of Palestine, having applied for
privileges under the law of this country on the basis of such
assertions, and having received the full benefit of such
assertions, namely, exemption from military service, are now, at a
time when all obligation to serve under the Selective Training and
Service Act of 1940 is long since past, in effect estopped from
denying the neutrality of Palestine at the times of their
respective applications.
We then believed that we were bound by the decision of the Deputy
Attorney General, rather than by the decision of the court in the
Petition of Ajlouny.
An attempt has been made to distinguish the present situation from
that involved in Matter of D , (supra), and the decision of the Deputy
Attorney General. It is urged that the Deputy Attorney General based
his theory of estoppel on the use of a factual situation determined for
a particular act, whereas here the special inquiry officer is basing his
theory of estoppel on an error the Selective Service draft board in
accepting and giving validity to the filing of SSS Form 130. Then, it
is contended that the appellant has not concealed or misrepresented any
fact nor has the Government relied on any untrue fact; that this is a
case purely of error on the part of the draft board in interpreting the
law and cannot give rise to estoppel; and that estoppel cannot be
predicated on errors of judgment by the persons asking its benefit, but
must originate in a statement of fact and not an opinion or statement or
statement of law. /1/
We have carefully considered the arguments advanced by counsel and,
those contentions to the contrary notwithstanding, we find that the
decision of the special inquiry officer must be affirmed. We are of the
opinion that the case is controlled by the language of section 315 of
the Immigration and Nationality Act of 1952.
Subsection (a) of section 315 provides, in substance, that any alien
who has applied for and been granted exemption from military training
and service shall be permanently ineligible to become a citizen of the
United States. Subsection (b) thereof provides substantially that
Selective Service records shall be conclusive as to whether an alien was
granted the exemption on the ground of alienage.
The specific language of the foregoing provisions of the Immigration
and Nationality Act leaves no doubt in our minds but that this appellant
is inadmissible under section 212(a)(22) thereof. The record clearly
establishes that he requested exemption from military training and
service on the basis of alienage and was granted relief on that ground.
The evidence in this respect comes from the record of the Selective
Service System. In addition, the evidence of record definitely
demonstrates that he knowingly and intentionally waived his rights to
citizenship and entry and, thus, made an intelligent election between
diametrically opposed courses required as a matter of law to effect the
forfeiture found by the special inquiry officer (Moser v. United
States, 341 U.S. 41; 71 S.Ct. 553). /2/
We note that the SSS Form 130 executed in this case appears to have
been issued for use in processing claims for exemption from military
service under provisions of section 4(a) of the Selective Service Act of
1948, rather than for use under the Universal Military Training and
Service Act. This is clear from the terminology of the "Notice' at the
bottom of form. The pertinent provisions of the Selective Service Act
of 1948 (Public Law 759, 80th Cong., ch. 625, 2d sess.) read as follows:
Section 4(a) * * * every male citizen of the United States, and
every other male person residing in the United States, * * * shall
be liable for training and service in the Armed Forces of the
United States. Any citizen of a foreign country, * * * shall be
relieved from liability for training and service under this Title
if, prior to his induction into the Armed Forces, he has made
application to be relieved from such liability in the manner
prescribed by and in accordance with rules and regulations
prescribed by the President; but any person who makes such
application shall thereafter be debarred from becoming a citizen
of the United States. * * *
It is not clear whether forms specifically adapted for use under the
terms of the Universal Military Training and Service Act had been issued
to the local boards at the time here in question, whether the form
actually executed in this case was issued to the appellant by
inadvertence on the part of the draft board employee, or whether the
claimed exemption was processed by the Selective Service authority
without awareness of the change in the provisions of the Selective
Service laws here pertinent. Whatever the facts may have been in this
respect, on the basis of the foregoing, we feel that they are immaterial
to the present consideration.
Finally, we feel that our conclusion in this case is buttressed by a
decision handed down by the United States District Court for the
Southern District of New York (Petition of Snitkofsky, No. 614454, Oct.
21, 1953). In that case, the petitioner for naturalization was lawfully
admitted for permanent residence. In 1950 he applied for and was
granted exemption from military training and service on the grounds of
alienage. Subsequently, he was inducted into the United States Armed
Forces, under the provisions of the Universal Military Training and
Service Act of 1951. In denying his petition, the court said:
* * * there is, unfortunately, no discretion residing in this
court to grant his petition. Under section 315 of the Immigration
and Nationality Act, 8 U.S.C. 1426, as well as under 4(a) of the
Selective Service Act of 1948, 50 U.S.C.App. 454(a), he is
ineligible for citizenship. The petitioner's predicament might
well merit legislative intervention. But this court is powerless
to aid him.
On the basis of the foregoing, we conclude that this appeal must be
dismissed and we will now so order.
Order: It is ordered that the appeal be and the same is hereby
dismissed.
(1) Counsel have furnished citations for the concepts of the doctrine
of estoppel urged as applicable to this case.
(2) The opinion of the special inquiry officer adequately disposes of
an off the record argument advanced by counsel at the hearing that the
circumstances surrounding the execution of Form SSS 130 by the subject
constituted duress sufficient to nullify the effect of his executing the
form.
Editor's note: Writ of habeas corpus filed with the United States
District Court for the Southern District of New York in the instant case
was dismissed by that court on June 14, 1954.
Advance permission to return to unrelinquished domicile -- Section 212(c) of Immigration and Nationality Act.
An alien who resided in the United States for 8 years following an
entry in 1940 which was unlawful is not eligible for relief under
section 212(c) of the Immigration and Nationality Act since he does not
have the unrelinquished lawful domicile of 7 consecutive years required
by that section.
Discussion: The District Director at Boston, Mass., in a decision
dated April 7, 1954, denied the alien's application for advance exercise
of the discretion contained in section 212(c) of the Immigration and
Nationality Act. The case now comes before us on certification.
This record relates to a 61-year-old male alien, a native and citizen
of Italy. He first entered the United States on August 29, 1913, at New
York for permanent residence, remaining in this country until December
of 1924 when he departed through the same port for Italy. He remained
in Italy until his departure from that country immediately prior to his
arrival in the United States at the port of New York on his second entry
on July 13, 1925. At that time he was detained at Ellis Island and
appeared before a board of special inquiry on the same day. He was
thereupon excluded as one who admits the commission of a crime involving
moral turpitude, namely: bigamy and adultery. He failed to appeal and
was deported from the United States on July 18, 1925.
The subject again came to the United States, arriving at the port of
New York on May 9, 1940. He then presented nonpreference quota
immigration visa No. 3062 issued to him by the American Consul at
Naples, Italy, on April 29, 1940, and he was admitted. On December 29,
1948, a warrant was issued for his arrest on the ground that he was in
the United States in violation of the Immigration Act of May 26, 1924,
in that he was, at time of entry, not entitled under said act to enter
the United States for the reason that the immigration visa which he
presented was not valid because procured by fraud or misrepresentation.
He was also charged with violation of the act of February 5, 1917, in
that he admitted having committed a felony or other crime or misdemeanor
involving moral turpitude prior to entry into the United States, to wit:
bigamy. The subject departed from the United States without awaiting a
determination of the legality of his residence in this country.
Accordingly, a reentry permit for which he had applied was not issued to
him.
The district director's decision is based on a finding that the
subject alien does not have the lawful unrelinquished domicile in the
United States of seven consecutive years required by the provisions of
section 212(c) of the Immigration and Nationality Act. If the district
director is correct in this respect, then there is no basis upon which
to predicate a grant of the relief requested. Accordingly, the issue
presented by this case is readily apparent.
Determination of this case depends upon the question of whether the
subject's 1940 entry was lawful. In this connection, consular
immigration visa No. 3062, which is part of this record, was submitted
by this alien at the time of the entry in question. Examination of that
document reveals that the subject failed, in answer to question 24
thereon, to state that he had been previously deported. At page 5 in a
statement made to an officer of the Immigration and Naturalization
Service at Hartford, Conn., on December 8, 1947, the subject states that
he did not furnish this information to the American consul because he
knew that if he did the American consul would have refused him the
immigration visa. He claimed that he did not inform the American consul
of the pertinent facts in this regard because he was not asked
specifically about them. He has further stated that his application for
the immigration visa was filled out by one of the secretaries at the
American consulate, that he was the director of a restaurant in Naples
at which the American consul was patron and knew him, and that he did
not wish the consul to know of his difficulties in the United States.
However, the fact remains that he did conceal the information required
to be given and did so because he knew that revelation of the pertinent
facts would lead to the refusal of the visa by the American consul.
On the basis of the foregoing, it is clear that the subject alien's
entry in 1940 was not a lawful one for permanent residence. This Board
has consistently held that failure to disclose prior deportation amounts
to fraud and misrepresentation in the procurement of the immigration
visa and, accordingly, renders the entry gained thereby unlawful (Matter
of C , A-4852428, 3, I. & N. Dec. 662). Therefore, the district
director correctly denied the subject's application for advance
permission to enter the United States under section 212(c) of the
Immigration and Nationality Act, and his decision must be affirmed.
The alien has stated that he was married to T S in Scafati, Italy, on
February 10, 1910, and that that marriage has never been terminated. A
document contained in the visa shows that he was married to the woman
claimed on March 14, 1911. He has further stated that in 1917 or 1918
he married one R H in Hartford, Conn., without securing a divorce from
his first wife. The record contains a photostatic copy of marriage
certificate of this alien and one R H obtained from the Department of
Health, Hartford, Conn., which establishes the fact that he and R H were
married in Hartford, Conn., on May 8, 1919. He has admitted, page 7 of
the statement to immigration officer on December 8, 1947, that he knew
he was committing the crime of bigamy when he married R H . The alien
has claimed that he was forced into the marriage with R H by police
officials who found the two of them in bed together, but the fact
remains that the police officers, according to his testimony, asked him
if he was married at the time and he denied it. In addition, there is
evidence in the record to indicate that he contracted a third marriage
under an assumed name with a B S , but the alien claimed that he did not
marry that woman, merely taking out a marriage license.
The foregoing evidence substantiates the statement in the district
director's decision that the alien appears to be inadmissible to the
United States under the provisions of section 212(a)(9) of the
Immigration and Nationality Act as one who has admitted the commission
of a crime involving moral turpitude, to wit: bigamy; and that he may
be inadmissible to the United States under the provisions of section
212(a)(19) of the same act as an alien who has procured a visa by fraud
or willfully misrepresenting a material fact.
On the basis of the foregoing, we find that the decision of the
district director must be affirmed and we will now so order.
Order: It is ordered that the decision of the District Director,
Boston, Mass., dated April 7, 1954, denying the subject alien's
application for advance permission to return to unrelinquished domicile
in the United States, under section 212(c) of the Immigration and
Nationality Act be and the same is hereby affirmed.
There is no basis in the record for the exercise of discretion
pursuant to section 212(c) of the Immigration and Nationality Act of
1952.
The decision and order of the Board of Immigration Appeals dated May
5, 1954, are hereby approved.
Fine -- Section 273(a) of Immigration and Nationality Act -- No liability thereunder with respect to alien crewmen not in possession of valid visas.
The provisions of section 273(a) of the Immigration and Nationality Act do not apply to alien crewmen and liability for fine does not lie with respect to alien crewmen who are not in possession of valid visas.
IN RE: SS. Greystoke Castle which arrived at San Francisco,
California, on November 24, 1953, 56 alien crewmen involved; M/V
Western Queen which arrived at Port Everglade, Florida, on July 27,
1953, alien crewman involved: R W R .
Discussion: The two appeals referred to above have been joined in
this decision since the same question of law is involved in both cases.
Case F-1300-161 is an appeal from the decision of the District Director
at San Francisco, Calif., on January 27, 1954, imposing a fine of
$56,000, and case F-0605-48 is an appeal from the decision of the
District Director at Miami, Fla., on August 21, 1953, imposing a fine of
$1,000.
In case F-1300-161, the British steamship Greystoke Castle sailed
from Kobe, Japan, for San Francisco, Calif., with a crew of 73,
including the master. The latter had engaged a crew of Chinese at Hong
Kong in September 1952 and they have sailed with him since, but the
vessel had not called at a United States port prior to its arrival on
November 24, 1953, as indicated above. On November 9, 1953, while the
vessel was in port at Kobe, Japan, a crew list was prepared in
compliance with the Immigration and Nationality Act and this was taken
to the American co sular officer by the ship's agent. The following day
it was returne to the master of the vessel with the American consul's
notation reading "Lines 1 thru 14 visaed-remainder not visaed because of
insufficient time to secure required clearances.' The manifest contains
the names of the 73 alien crewmen and a photostatic copy thereof is part
of the record. Upon the arrival of the vessel, a notice was served on
the master to detain the 59 aliens whose names had not been visaed and
the following day an application was made for a waiver of visa on behalf
of these crewmen, but this application was denied. On November 27,
1953, the American consul at Kobe, Japan, informed the San Francisco
office of the Service that the names of three alien crewmen had been
inadvertently omitted from the visa which he had placed on the crew
list. Hence, there remain 56 alien crewmen who are not included in the
visa of the American consul.
The 56 alien crewmen, referred to above, were ordered detained on
board the vessel, and it appears from the affidavit of the vessel's
master that the San Francisco agent for the vessel employed guards to
prevent any of these seamen from going ashore. He also states "at no
time did the American consul advise me not to sail with my complement of
Chinese crew members.' All of the alien crewmen involved were still on
board the vessel when it departed from San Francisco on December 8,
1953. Although the immigration officer recommended the imposition of a
fine, he made the following statement, nevertheless, in his summary, "It
is conceded that, as pointed out in the second contention of the agents,
certain extenuating circumstances surround the violation.' This
contention had reference to the assertion of the agent for the vessel
that the master of the SS. Greystoke Castle acted at all times in
complete good faith; that in the latter's experience as a master of
over 27 years, his crews had always been allowed shore leave in ports
throughout the world; that when the vessel left Kobe, the master did
not know that the failure to visa the entire crew was for any reason
other than insufficient time, on the part of the American consular
officer, to complete the visa procedure; and that he believed that upon
arrival in the United States, he could rely on the procedure of applying
for a special waiver of the visa on behalf of the crewmen who were not
included in the consular visa.
With respect to case F-0605-48, the alien crewman involved was not in
possession of an unexpired visa and was not included in the visaed crew
list, his name having been added to the formal manifest after the
consular officer had placed his visa thereon. It appears from the
special inquiry officer's "summary' that the master had previously
requested the American consul to issue individual visas for all members
of his crew, but the consul stated that he was not prepared to do so at
that time. The alien crewman in this case was detained on board the
vessel and a waiver of the visa requirement was not applied for nor
obtained. The M/V Western Queen was under charter to the Western
Electric Company and was engaged in conveying supplies to the nearby
British West Indies in the installation of submarine cables for the
United States Air Force. The vessel had been so engaged since February
18, 1953, and this alien crewman had signed on the vessel in the Bahamas
on March 26, 1953, and served until June 15, 1953, when he signed off at
Nassau because of illness in his family. He again signed on as a member
of the crew on Saturday, July 25, 1953. The master of the vessel had
obtained a visa of the crew list from the American consul at Nassau,
Bahamas, on July 24, 1953, and was unable to obtain a visa for this
alien crewman on July 25th or 26th (Saturday and Sunday) as the American
consulate was closed after 4 p.m. on Friday. The vessel sailed for the
United States at 3 p.m. on Sunday, July 26, 1953.
We have carefully considered the points urged by consul, by brief and
at the oral argument, in case F-1300-161, as well as the contentions of
the Service representative. The statutory provision involved in this
case is section 273(a) of the Immigration and Nationality Act, the
pertinent part of which is as follows:
It shall be unlawful for any person, including any
transportation company, or the owner * * * of any vessel * * *, to
bring to the United States from any place outside thereof (other
than from foreign contiguous territory) any alien who does not
have an unexpired visa, if a visa was required under this act or
regulations issued thereunder.
Essentially, the contention of the Service is that the phrase "any
alien' in the statutory provision quoted above, when coupled with the
definition of alien contained in section 101(a)(3) of that act,
comprehends all aliens, including alien crewmen. On cursory
examination, it might seem that there is merit in this position. It is
true, as the Service representative contended at the oral argument, that
another section (section 212(a) which relates to aliens ineligible to
receive visas and excluded from admission) employs the phrase "the
following classes of aliens' without particularly mentioning alien
crewmen but crewmen are held to be inadmissible if they are within any
of the classes set forth in section 212(a). Such a conclusion is, of
course, necessary because section 252(a) of the act specifically
provides that an alien crewman shall not be permitted to land
temporarily unless he is "otherwise admissible,' which obviously
requires admissibility in accordance with section 212(a).
The statutory provision, comparable to section 273(a) of the
Immigration and Nationality Act and in force prior to the effective date
of that act, was section 16(a) of the Immigration Act of 1924 (43 Stat.
163; repealed 8 U.S.C. 216(a)). Its language was almost identical with
that contained in section 273(a) except that the provision in the 1924
act was limited to the bringing of "any immigrant,' whereas section
273(a) referes to "any alien.' Because of this change in language, it is
clear that section 273(a) is no longer restricted to aliens who are
immigrants and that some classes of nonimmigrants are also included.
However, for the reasons set forth hereinafter, it is not considered
opinion that those nonimmigrants, who are alien crewmen, are not within
the purview of section 273(a).
Preliminary to our discussion of the specific question, it may be
well to make certain general observations. Throughout Title II of the
Immigration and Nationality Act, relating to "Immigration,' there are
many references to "aliens,' "an alien other than an alien crewman' and
"an alien including an alien crewman.' /1/ Obviously, no difficulty is
encountered when the two explicit phrases are used. However, we do not
agree with the position taken by the Service which is, in effect, that
the word "alien' must be considered as including alien crewmen except
where Congress specifically stated that it did not. If that were the
case, there could be no logical explanation for the many instances where
Congress used the phrase "an alien, including an alien crewman' for the
mere use of the word "alien' would have been sufficient. Under these
circumstances, we think more is required than a blind reliance on the
most encompassing definition which can be attributed to the word
"alien.' Rather, we believe that where only the word "alien' is used,
the purpose and intent of the particular statutory provision must be
considered to determine whether alien crewmen are included. In our
opinion, this view is supported by the long course of legislative
history dealing with immigration which shows a traditional
differentiation between the inspection, admission and deportation of
alien crewmen as compared with other nonimmigrants and immigrants, and
this distinction has been carried over into the Immigration and
Nationality Act.
Not only has there been the distinction mentioned above but there is
a logical reason for this in view of an important respect in which the
cases of seamen differ from those of all other immigrant or nonimmigrant
aliens. Aliens, other than alien crewmen, are on board the vessel for
the purpose of transport to, and entry into, the United States either
for indefinite or temporary periods. The alien crewman is on board the
vessel in the course of his employment and not for any actual purpose of
entering the United States, and whether he should or should not be
permitted to enter this country temporarily as a seaman is unrelated to
his presence on board the vessel.
Since alien passengers on board a vessel are coming to the United
States solely for the purpose of entering this country either
temporarily or permanently, it is logical to penalize the transportation
company if it brings an alien passenger to the United States who does
not have a required visa and to require the transportation company to
refund the passage money which the alien has paid. In such cases, the
transportation company has only to refuse to transport the passenger who
does not have a visa. On the other hand, the 56 alien crewmen in case
F-1300-161 had served on board the vessel since September 1952. In
November 1953, the vessel, for the first time, was scheduled to proceed
to the United States, but when the crew list containing the names of all
the members of the crew was presented to the American consul, he
excluded 56 of the alien seamen from his visa of the crew list. We
think that it is readily apparent that there is a vast distinction
between such a situation and the case where the carrier need only refuse
to transport the passenger who does not have a visa since the vessel
could not have sailed without the 56 crewmen.
At the oral argument in the case last mentioned, a question was
raised as to whether the 56 aliens involved were bona fide members of
the crew inasmuch as the American consular officer had excluded them
from his visa of the crew list. We do not perceive the slightest
substance to such a contention. Section 101(a)(10) of the Immigration
and Nationality Act provides, "The term "crewman' means a person serving
in any capacity on board a vessel or aircraft.' The 56 aliens involved
had been serving as members of the crew of the vessel since September
1952 and, therefore, come squarely within the definition quoted above.
The fact that the consul had excluded their names from his visa of the
crew list bears only on their admissibility to the United States and
precludes the granting of shore leave but it does not detract, in any
way, from their status as bona fide members of the crew. The same is
true of the alien crewman involved in case F-0605-48 who was a regular
member of the crew of that vessel.
We previously had occasion to consider an appeal from the imposition
of a fine under section 16(a) of the act of 1924 (the predecessor of
section 273(a) of the Immigration and Nationality Act) for bringing to
the United States an alien who was occupationally a seaman and arrived
as a member of the crew but who was also an applicant for admission as
an immigrant (Matter of SS. Fred Herrling, F-4870, 3, I. & N. Dec. 753,
decided March 9, 1950). We there held that a fine had not been
incurred. Since we found in that case that the alien crewman was
actually an immigrant, the change in terminology from "immigrant' in the
1924 act to "alien' in section 273(a) of the Immigration and Nationality
Act does not render inapplicable our prior determination.
Our decision in Matter of SS. Fred Herrling, (supra), was largely
predicated on Taylor v. United States, 207 U.S. 120 (1907). That case
involved section 18 of the Immigration Act of March 3, 1903, which
provided that "it shall be the duty of the owners * * * of any vessel
bringing an alien to the United States to adopt due precautions to
prevent the landing of any such alien from such vessel at any time or
place other than that designated by the immigration officers * * *.' The
court, in reversing the judgment of conviction, held that this section
did not apply to the case of a seaman deserting while on shore leave and
made the following statement:
The phrase which qualifies the whole section is, "bringing an
alien to the United States.' It is only "such' officers of "such'
vessels that are punished. "Bringing to the United States,' taken
literally and nicely, means, as a similar phrase in section 8
plainly means, transporting with intent to leave in the United
States and for the sake of transport -- not transporting with
intent to carry back, and merely as incident to employment on the
instrument of transport.
The decision in Taylor v. United States, (supra), is significant also
because the earlier immigration acts had used the term "alien immigrant'
whereas the act of 1903 had omitted the word "immigrant,' and the
Government contended that the omission of the word "immigrant' showed
the congressional intention of including seamen as well as immigrants.
Hence, the same change of phraseology which is now before us, that is,
the change from "immigrant' to "alien' was also before the Supreme Court
when the Taylor case was decided.
The Supreme Court again considered the matter in Osaka Shosen Kaisha
Line v. United States, 300 U.S. 98 (1937), which involved section 10 of
the Immigration Act of 1917, as amended by section 27 of the act of May
26, 1924. This provision is entirely similar to section 18 of the act
of March 3, 1903, which had been considered in the Taylor case. In the
Osaka Shosen Kaisha Line case, the court concluded that there had been a
violation of section 10 of the Immigration Act of 1917, as amended,
where an alien passenger enroute from Brazil to Japan on a through
ticket was allowed, by the negligence of the ship's officers, to land in
the United States without permission of the immigration officers. The
steamship line had contended that under the decision in Taylor v.
United States, (supra), it was necessary, in order to constitute the act
of bringing an alien to the United States, that there should be an
intent to leave him in this country. The court stated that the phrase
"intent to leave,' which it had used in the Taylor case, was entirely
correct as applied to a seaman on board a vessel, but that it may not be
extended to include an alien through passenger. However, the Court
expressly affirmed the view it had stated in the Taylor case, namely,
that the transportation of the sailor was merely an incident to
employment on the instrument of transport and that the sailor was one of
the agencies which brought the ship in rather than an alien brought in
by the ship.
The Supreme Court, in the Osaka Shosen Kaisha Line case, also said at
page 103: "When we consider the relation of the sailor to the ship --
that he is, for all practical purposes, a part of it and not, like a
passenger, apart from it -- it is quite apparent that the word "alien'
as used in section 10 does not, and was not intended to, include an
alien sailor.' This construction of the word "alien,' as used in section
10 of the act of 1917, as amended by the act of 1924, is highly
pertinent to the question before us since both section 1 of the act of
1917 and section 28 of the act of 1924 had defined the term "alien,' in
general, as including any person who was not a citizen of the United
States. The Supreme Court, in that case, had also cited with approval
the language of Chief Justice Marshall in The Wilson v. United States, 1
Brock. 423, 30 Fed.Cas. 239, 244 (1820): "It is true that a vessel
coming into port, is the vehicle which brings in her crew, but we do not
in common language say, that the mariners are "imported,' or brought in
by a particular vessel; we rather say they bring in the vessel.'
It must be assumed that when Congress used the language "* * * bring
to the United States * * * any alien * * *' in section 273(a) of the
Immigration and Nationality Act, it was aware of the interpretation
which the Supreme Court had placed on almost identical language in
section 18 of the Immigration Act of March 3, 1903, and section 10 of
the Immigration Act of 1917, as amended. Under these circumstances, the
fact that Congress did not specify that the term "alien' in section
273(a) should include alien crewmen, as it expressly did in section
274(a), is a rather clear indication that crewmen were not intended by
Congress to be included. In addition, section 271(a) of the Immigration
and Nationality Act, which is a substantial reenactment of the
legislation which had been considered by the Supreme Court in the two
cases cited above, employs the language "bringing an alien to, or
providing a means for an alien to come to, the United States * * *.' The
latter part of the quoted phrase might conceivably be held to include an
alien crewman but this is not true of section 273(a) where only the
language "bring to the United States' was used.
In determining whether the word "alien' in section 273(a) of the
Immigration and Nationality Act includes also an alien crewman, it is
essential to bear in mind that this statutory provision, being penal in
nature, must be strictly construed. We must also give consideration to
the well-settled rule of statutory construction, namely, 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, /2/ 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. /3/
In Church of the Holy Trinity v. United States (footnote 3) and Toyota
v. United States, 268 U.S. 402 (1925), the Supreme Court had under
consideration statutory provisions using the precise phrase we have
before us, namely, "any alien,' and in both cases that court held that
certain aliens were, nevertheless, not included.
In interpreting one section of the Immigration and Nationality Act,
we must, of course, also give consideration to the act in its entirety.
Section 273, under which it is sought to impose the fines, is contained
in chapter 8 which is captioned "General Penalty Provisions.' The
penalty provisions, which are particularly applicable to alien crewmen,
are contained in chapter 6, entitled "Special Provisions Relating To
Alien Crewmen.' /4/ Under these circumstances and in view of the use of
the word "General' in the title of chapter 8, we believe that the
penalty provisions of chapter 8 were not intended to be applicable to
alien crewmen except insofar as particular sections contain specific
language to that effect.
In addition to section 273, there are also penal provisions,
applicable to transportation companies, contained in sections 271, 272
and 274. With the exception of section 273, the other sections contain
specific provisions either excluding alien crewmen or including them.
Subsections (a) and (b) of section 272 contain statements excluding
alien crewmen; section 274 includes alien crewmen; and section 271(a)
refers to an alien "including an alien crewman whose case is not covered
by section 254(a).'
The effect of the above-mentioned provision in section 271(a) is to
exclude alien crewmen whose cases are covered by section 254(a).
Section 254(a) prescribes inter alia a penalty of $1,000 for failure to
detain an alien crewman on board until he has been inspected and section
271(a) prescribes a like penalty for failure to prevent the landing of
an alien at any time or place other than as designated by immigration
officers. Both sections, therefore, are intended to prevent the
unauthorized landing of aliens. The provision in section 271(a), which
precludes its application to most alien crewmen, is highly significant
as showing that, where Congress had prescribed a specific procedure in
section 254(a) to prevent the unauthorized landing of alien crewmen, the
similar provisions of section 271(a) were to be inapplicable in such
cases. Since Congress enacted two separate sections dealing with this
one subject matter and in view of the special provisions relating to
alien crewmen which are set forth in chapter 6 of the act, we think
there is unmistakable evidence that Congress did not intend that alien
crewmen should be placed on the same footing as other nonimmigrant
aliens but rather that they were to be considered as forming an entirely
distinct category. Likewise, we believe that Congress did not intend
that a penalty should be imposed upon a transportation company for
bringing an alien crewman who was not in possession of an unexpired visa
but instead that, in such cases, the duty of the transportation company
was to detain the alien crewman on board until the departure of the
vessel, subject to the penalty mentioned in section 254 for failure to
do so.
There are certain additional factors which convince us that
subsection (a) of section 273 was not intended to apply to alien
crewmen. Two of these are the fact that the phrase "any alien' in
subsection (a) obviously is not intended to be all-inclusive since
subsection (d) provides a specific procedure for dealing with another
class of aliens, namely, stowaways, and the fact that section 257 makes
it an offense to sign an alien on the vessel's articles with the intent
of permitting him to enter or land in the United States in violation of
law, which negates any contention that the application of section 273(
a) to alien crewmen is necessary to prevent collusion between the master
of the vessel and members of the crew who intend to desert as soon as
the vessel reaches the United States.
A third factor which has contributed to our conclusion is the
provision of subsection (b) of section 273 which is to the effect that
the transportation company shall pay the sum of $1,000 for each alien
who was brought to the United States in violation of subsection (a)
"and, except in the case of any such alien who is admitted, or permitted
to land temporarily, in addition, a sum equal to that paid by such alien
for his transportation from the initial point of departure, indicated in
his ticket, to the port of arrival, such latter sum to be delivered by
the collector of customs to the alien on whose account the assessment is
made.' By using the words "and in addition,' there is a clear indication
that Congress contemplated that, in every case within the purview of
section 273(a), the alien who was brought to the United States would be
a passenger who had paid his transportation to this country and this is
further borne out by the other language in this statutory provision to
which we have supplied emphasis. We think it is clear, therefore, that
section 273(a) was not intended to apply to an alien crewman who has not
purchased a ticket or paid for his transportation.
In connection with the provision of section 273(b) which has been
quoted above, the Service representative urged at the oral argument that
the language therein reading "permitted to land temporarily' is
applicable only to alien crewmen and is precisely the language used in
section 252(a) relating to the manner in which alien crewmen are
admitted to the United States as nonimmigrants. From our view of other
sections of the act, we are satisfied that the phrase "permitted to land
temporarily' is not restricted solely to alien crewmen and that Congress
has used interchangeably such terms as "landed,' "admitted,' and
"admitted temporarily' in referring to the manner in which nonimmigrants
(including alien crewmen) gain entry into the United States. For
example, sections 235(b), 272(a) and 272(b), from which alien crewmen
are specifically excluded, use the word "land,' and section 273(d)
provides that a stowaway shall not be "permitted to land in the United
States, except temporarily for medical treatment.' On the other hand,
section 221(f) provides "such alien crewman may be admitted, * * *.' We
believe, therefore, that the phrase "permitted to land temporarily' in
section 273(b) does not have the connotation which the Service seeks to
attribute to it, and that it may be applied with equal propriety to
other classes of nonimmigrants (visitors, etc.) who are, in fact,
"permitted to land temporarily,' that is, for the duration of their
authorized stay.
We believe that the foregoing amply demonstrates the soundness of our
position in this matter. We have deemed it appropriate to consider the
matter in its broadest aspect although we would have found it necessary
to reach the same conclusion if we had approached the matter from a more
technical viewpoint. From the latter standpoint, we must consider that
portion of section 273(a) which 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.' In other
words, was an alien crewman required to have a visa under the provisions
of the act at the time these cases arose?
In considering the question mentioned above, we observe that a
nonimmigrant visa is defined in section 101(a)(26) as "a visa properly
issued to an alien * * *.' Even though the name of an alien crewman
appears on a visaed crew list, this is not a visa issued to the alien
and, hence, is not a nonimmigrant visa as defined by the act. Nor does
the act spell out any intention of making a visaed crew list identical
with the possession by the alien crewmen of individual visas. Where
there was such an intention with respect to reentry permits, it was
specifically stated in section 223(e) that the permit "shall be accepted
in lieu of any visa.' Section 221(f) provides, in effect, that until
such time as it becomes practicable to issue individual nonimmigrant
visas to alien crewmen, such aliens may be admitted if their names
appear in the crew list of the vessel on which they arrive and the crew
list has been visaed by an American consular officer. Since we have
previously indicated that the two documents (visaed crew list and
nonimmigrant visa) are not identical, it follows that, at the time these
cases arose, the alien crewmen were not required to have unexpired visas
by reason of the specific provisions of section 221(f) and, therefore, a
fine cannot be imposed under section 273(a) in any event. Of course,
the question of whether a conditional permit to land temporarily could
be granted to these alien crewmen is an entirely different matter
because, as to that, it is clear that such permits could not be granted
inasmuch as the aliens' names on the crew list had not been visaed.
Closely allied to the matter under discussion above is the question
of whether all alien crewmen arriving in United States waters are
subject to the documentary requirements of the act or whether these are
only applicable where the alien crewmen desire conditional permits to
land temporarily under section 252(a). The 56 alien crewmen in case
F-1300-161 were obviously applicants for shore leave, but in case
F-0605-48, the record does not disclose whether the seaman involved had
even applied for admission to the United States. Section 212(a)(26)
provides for the exclusion of "Any nonimmigrant who is not in possession
of * * * (B) at the time of application for admission a valid
nonimmigrant visa or border-crossing identification card.' Hence, this
constitutes an additional reason for holding that an alien crewman, who
does not seek shore leave, is not required to be in possession of a
nonimmigrant visa, nor is there a requirement that his name on the crew
list to included in the American consul's visa. This view is supported
by the provision of 22 C.F.R. 41.60(c) which refers to an application
for a visa as a nonimmigrant on the part of an alien crewman "seeking to
proceed to and land in, the United States temporarily,' and by the
provisions of 22 C.F.R. 41.65(b) which also indicate that the visaed
crew list or nonimmigrant visa is material only insofar as the alien
crewmen are applicants for admission as nonimmigrants.
We have also considered the fact that section 221(f) specifically
authorizes the consular officer to exclude any alien crewman from the
crew list submitted to him, and that the American consul did take that
action in case F-1300-161. If we held that section 273(a) applied to
alien crewmen, the master of the vessel would be liable for the arrival
in the United States of a crewman on his ship if, after the alien was
signed on the vessel, the consular officer excluded him from the crew
list visa, and yet the only other alternative which the master would
have would be to violate the terms of the contract of employment. To
interpret section 273(a) as relating to alien crewmen might well be
construed as an attempt by this Government to dictate to the owner of a
vessel, sailing under a foreign flag, what seamen he could employ on his
ship under penalty of a fine of $1,000 for having on board an alien
crewman who had not been "screened' by the United States authorities
even though the seaman did not set foot on our soil and had made no
application for shore leave. The injustice of such a position is even
more apparent where, as in case F-1300-161, the alien crewmen were not
excluded from the American consul's visa because of any supposed threat
to the security of the United States but only for the reason
"insufficient time to secure required clearances.' On the other hand,
our interpretation that section 273(a) does not apply to alien crewmen
is an equitable solution since there is no interference with the right
of the owner of the vessel to employ any bona fide seaman, and the
interests of the United States are protected because, if the alien
crewman does not have an individual nonimmigrant visa and is not on a
visaed crew list, he will not be permitted to land but must be detained
on board under a penalty of $1,000 (sec. 254) or a fine of $5,000 under
section 257 if there was an intent to assist the alien to enter the
United States illegally.
For the reasons set forth above, we hold that section 273(a) does not
apply to alien crewmen. Accordingly, the appeals will be sustained.
Order: It is ordered that the appeals be sustained and that the
proceedings be terminated.
(1) There is frequent use of the word "alien' in sections 212 to 223
and the two other phrases are used on numerous occasions in sections 232
to 237 and sections 241, 271, 272, and 274.
(2) Stewart v. Kahn, 78 U.S. 493, 504 (1870).
(3) Wilkinson v. Leland, 27 U.S. 627, 662 (1829); Church of the Holy
Trinity v. United States, 143 U.S. 457 (1892); Ozawa v. United States,
260 U.S. 178, 194 (1922).
(4) Secs. 251, 254, 255, 256, and 257 of ch. 6.
These matters are before the Board of Immigration Appeals on appeal.
Both involve aliens. The first case had its inception at San Francisco,
Calif., and the second at Miami, Fla., and although determination was
made by separate and distinctly different special inquiry officers in
these two different parts of the country, these officers arrived at
diametrically opposite conclusions.
Both matters were joined for consideration by the majority of the
members of the Board of Immigration Appeals, obviously for reasons which
will become apparent from a study of the facts and the applicable law
and regulations hereinafter set forth.
The first matter, covered by file F-1300-161, involves an appeal from
the decision of the District Director of Immigration and Naturalization,
San Francisco, Calif., bearing date January 27, 1954, wherein fine in
the amount of fifty-six thousand dollars ($56,000), $1,000 for each
alien involved, was imposed upon Williams, Dimond & Co., agents for the
SS. Greystoke Castle, which vessel arrived at the port and on the date
hereinabove set forth from Kobe, Japan, for violation of section 273 of
the Immigration and Nationality Act.
The specific violation complained of is bringing to the United States
56 aliens who did not have unexpired visas.
When this vessel arrived it had a complement of 73 aliens including
the master. It would appear that the aliens here involved were all of
the Chinese race. They were engaged for employment at Hong Kong, China,
and it is averred that they have followed this employment for several
years. The vessel, however, had not called at a port of the United
States before the present arrival.
While the ship was in the port of Kobe, Japan, a crew list was
prepared as required by the Immigration and Nationality Act (Public Law
414); and although the said list was presented to the United States
consul for visa purposes by the ship's agent, the list was returned with
the notation made by the United States consul to the effect that the
names of aliens appearing on lines one through fourteen had received the
requisite "nonimmigrant visa' but the remainder of the names did not
contain a visa, presumably for the reason as noted thereon, that there
was insufficient time to obtain the necessary clearances. In other
words, the United States consul had not satisfied himself as to the bona
fides of the status of these aliens. A photostatic copy of the list is
attached to and made part of the record.
It is important to note at this point that the burden placed upon the
United States consul is to satisfy himself of the nonimmigrant status of
such aliens and as to their subsequent admissibility to the United
States in such category. /*/
The term "alien' is defined in section 101(a)(3) of the Immigration
and Nationality Act as any person not a citizen or national of the
United States.
The term "immigrant' as defined in section 101(a)(15) of the
Immigration and Nationality Act means every alien except an alien who is
a nonimmigrant.
22 C.F.R., section 41.17, effective December 24, 1952, published
December 19, 1952, relating to refusal of nonimmigrant documentation,
provides in part as follows:
(a) Every alien shall be presumed to be an immigrant until he
establishes to the satisfaction of the consular officer that he is
properly classifiable within a nonimmigrant category specifically
referred to in section 41.5.
Following the arrival of the SS. Greystoke Castle as hereinabove
indicated a notice was served upon the master requiring him to detain on
board and to deport from the United States 59 of the aliens for whom no
visa had been issued by the United States consul. On the day following
arrival an application was made to the Department of State for a waiver
of visa requirements under the provisions of section 273 of the
Immigration and Nationality Act on behalf of the said 59 aliens but this
application was specifically denied by the said Department of State,
apparently thereby confirming the action of the United States Consul in
Kobe, Japan.
Under date of November 27, 1953, the United States Consul, Kobe,
Japan, informed the Immigration and Naturalization Service at San
Francisco, Calif., that the names of three of the aliens had been
inadvertently omitted from the visa on the aforesaid lists, hence there
remained a total of 56 aliens for whom no visa whatsoever was issued,
either by the United States Consul in Kobe, Japan, or by specific waiver
of the United States Department of State; yet, notwithstanding the
declination or refusal by the United States consul of a visa or waiver
thereof by the United States Department of State for these 56 aliens,
the master of the vessel nevertheless brought these aliens to the United
States in circumstances hereinafter set forth. Certainly the action of
the United States consul was sufficient notice to the master that these
aliens were not categorized by the United States consul as nonimmigrant
immigrant aliens and their admissibility to the United States as such
had not been determined.
The second matter is before the Board of Immigration Appeals (file
F-0605-48) by reason of an appeal from the decision of the District
Director of Immigration and Naturalization, Miami, Fla., bearing date
August 21, 1953, disaffirming an opinion of the special inquiry officer
bearing date August 3, 1953, wherein the proceedings were terminated.
Four members of the Board of Immigration Appeals are of the opinion
that these proceedings should be terminated and with that conclusion I
must respectfully disagree for all of the reasons hereinafter set forth.
The District Director of Immigration and Naturalization, Miami, Fla.,
ordered that the fine covered by file F-0605-48 in the amount of $1,000
be imposed against the Port Everglades Terminal Co., agents of the M/V
Western Queen, which vessel arrived at the port and on the date
hereinabove set forth from the foreign port or place as indicated for
violation of section 273 of the Immigration and Nationality Act (8 U.S.
C. 1323).
The specific violation complained of in this instance is bringing to
the United States from Nassau, Bahamas, a port or place outside this
country, the alien R W R , who was not in possession of an individual
unexpired visa and was not included on the visa appearing on the crew
list issued by the United States consul. This alien, and the 56 others,
subjects hereof, were not exempt from visa requirements under and
pursuant to the provisions of section 212(a)(26) of the Immigration and
Nationality Act (8 U.S.C. 1182), which provides in part as follows:
(a) Except as otherwise provided in this Act, the following
classes of aliens shall be ineligible to receive visas and shall
be excluded from admission to the United States: * * *
(26) Any nonimmigrant who is not in possession of (A) a
passport valid for a minimum period of 6 months from the date of
the expiration of the initial period of his admission or
contemplated initial period of stay authorizing him to return to
the country from which he came or to proceed to and enter some
other country during such period; and (B) at the time of
application for admission a valid nonimmigrant visa * * *. /1/
The vessel as aforesaid (M/V Western Queen) was under charter to the
Western Electric Co. carrying supplies to the nearby Bahamas, B.W.I.,
used in connection with the installation of submarine cables which the
Western Electric Co. was installing under contract to the United States.
The vessel had been under such charter since February 18, 1953. The
subject hereof was signed on the articles of the vessel at Nassau in the
Bahamas on March 26, 1953. He continued in employment until June 15,
1953, when, because of alleged illness in his family, he signed off the
vessel's articles and was re-signed on the ship's articles on July 26,
1953. He is shown as a British subject. It is conceded that this alien
was signed on the articles of the vessel after the master had procured a
visa from the United States consul on the crew list for other members of
the crew but R 's name was neither among those for whom a visa was
obtained on July 24, 1953, nor was he possessed of an individual visa as
required.
The sole issue in these cases is whether or not a violation of
section 273(a) of the Immigration and Nationality Act (8 U.S.C. 1323) is
established for bringing these aliens to the United States who were
neither in possession of individual visas nor were their names included
in the visa on the crew list.
Four members of the Board of Immigration Appeals rely to a great
extent upon the decision of the court in the case of Taylor v. United
States, 207 U.S. 120 (1907). In that case the court was interpreting
the provisions of section 18 of the Immigration Act of March 3, 1903.
Considerable immigration legislation was passed by Congress subsequent
thereto, and our particular attention is focused upon the provisions of
section 273 of the Immigration and Nationality Act (Public Law 414),
(supra), wherein the Congress sought to prevent recurrences of the
situation which obtained under this old act, and upon which the Congress
sought specifically to legislate in the said Immigration and Nationality
Act by using the words "any alien.'
Section 273 of the Immigration and Nationality Act (Public Law 414)
(8 U.S.C. 1323) provides in part as follows:
(a) It shall be unlawful for any person, including any
transportation company, or the owner, master, commanding officer,
agent, charterer, or consignee of any vessel * * * to bring to the
United States from any place outside thereof * * * any alien who
does not have an unexpired visa, if a visa was required under this
Act or regulations issued thereunder;
(b) If it appears to the satisfaction of the Attorney General
that any alien has been so brought, such person, or transportation
company, or the master, commanding officer, agent, owner,
charterer or consignee of any such vessel * * * shall pay to the
collector of customs of the customs district in which the port of
arrival is located the sum of $1,000 for each alien so brought
and, except in the case of any such alien who is admitted, or
permitted to land temporarily, in addition, a sum equal to that
paid by such alien for his transportation from the initial point
of departure, indicated in his ticket, to the port of arrival, * *
*.
(c) Such sums shall not be remitted to refunded, unless it
appears to the satisfaction of the Attorney General that such
person, and the owner, master, commanding officer, agent,
charterer, and consignee of the vessel * * * prior to the
departure of the vessel * * * from the last port outside the
United States, 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. /2/
Section 221(f) of the Immigration and Nationality Act /3/ reads as
follows:
(f) Each nonimmigrant shall present or surrender to the
immigration officer at the port of entry such documents as may be
by regulation required. In the case of an alien crewman not in
possession of any individual documents other than a passport and
until such time as it becomes practicable to issue individual
documents, such alien crewman may be admitted, subject to the
provisions of this title, if his name appears in the crew list of
the vessel or aircraft on which he arrives and the crew list is
visaed by a consular officer, but the consular officer shall have
the right to exclude any alien crewman from the crew list visa.
Here it must be emphasized that all of these aliens not having been
classified by the United States consul as nonimmigrants they could not
be considered bona fide members of the crew. Hence, they were
immigrants as hereinafter shown, and the masters of the vessels were
fully cognizant that these aliens were not in possession of the required
nonimmigrant visas, and, consequently, the said aliens should not have
been permitted to come to the United States.
22 C.F.R., section 41.17, provides for refusal of nonimmigrant
documentation:
(a) Every alien shall be presumed to be an immigrant until he
establishes to the satisfaction of the consular officer that he is
properly classifiable within a nonimmigrant category specifically
referred to in section 41.5.
(b) Except as provided in paragraphs (c), (d), and (e) of this
section, the provisions of section 212(a) of the Act specifying
the grounds for refusal of visas to aliens as implemented by
section 42.42 of this subchapter, shall apply to all
nonimmigrants.
Because of the law and the regulations herein set forth, it is my
opinion that the carriers were fully aware of the applicability of the
nonimmigrant visa provisions of the statute and the regulations. Yet,
notwithstanding, they brought the 57 aliens here involved to the United
States without being properly documented by the United States consul;
consequently, all said 57 aliens were brought to the United States in
contravention of law, thereby rendering the carriers subject to civil
penalty.
8 C.F.R., section 212.1, provides:
Except as otherwise provided in the Immigration and Nationality
Act and this chapter, an alien (including an alien crewman) who
applies for admission to the United States as a nonimmigrant shall
present a valid unexpired nonimmigrant visa issued to him under
the nonimmigrant classification in which he seeks admission, and
an unexpired passport valid for at least the period set forth in
section 212(a)(26) of the Immigration and Nationality Act: * * *.
The majority of the Board of Immigration Appeals contend that section
16 of the Immigration Act approved May 26, 1924 (8 U.S.C. 216) is the
comparable statutory provision in previous legislation. Of course, this
provision of the previous law was repealed specifically by the
Immigration and Nationality Act (Public Law 414). The majority assert
that the language is almost identical. They reason that certain
nonimmigrant aliens are not within the provisions of section 273 of the
Immigration and Nationality Act (supra). A mere reading of the statutes
and a comparison reveal the differences. The reasons for the changes
are all too evident; Congress intended to strengthen the control of
"all aliens.' They intended no weakening for security reasons. The
majority would attempt to carve certain nonimmigrants from "all aliens.'
Congress intended to include all and to exclude none. This view, I
believe, is supported adequately by the report of the Committee on the
Judiciary (S. Rept. No. 1515, 81st Cong., 2d sess., pp. 545-555).
Section 16 of the Immigration Act approved May 26, 1924 (8 U.S.C.
216) provides in part as follows:
(a) It shall be unlawful for any person * * * or the owner * *
* of any vessel to bring to the United States by water from any
place outside thereof (1) any immigrant who does not have an
unexpired immigration visa. * * *
(c) The penalty of $1,000 mentioned in subsection (b) shall not
be remitted or refunded unless it appears to the satisfaction of
the Attorney General that such person, and the owner * * * of the
vessel, prior to departure of the vessel from the last port
outside the United States, did not know and could not have
ascertained by the exercise of reasonable diligence, (1) that the
individual transported was an immigrant * * *.
Nothing could be more obvious than that Congress fully intended to
change the provisions of section 16 of the Immigration Act approved May
26, 1924, (supra). That section referred only to immigrants and there
was nothing in the way of penalty relating to other than the bringing of
an immigrant without proper documentation.
22 C.F.R., section 41.60, provides:
(a) An alien applying for a nonimmigrant visa under the
provisions of section 101(a)(15)(D) of the Act shall be required
to establish to the satisfaction of the consular officer that he
seeks to proceed to, and land in, the United States temporarily
and solely in pursuit of his calling as a nonimmigrant crewman
serving in good faith as such in some capacity required for normal
operation and service on board a vessel * * * proceeding to the
United States. Aliens employed on board such vessel * * * in a
capacity not ordinarily associated with, or required for, normal
operation and service on board the vessel, * * * or persons
employed or listed as regular members of the crew in excess of the
number normally required shall be considered as passengers and
shall be documented as any other passenger not employed aboard the
vessel * * *.
(c) Each nonimmigrant crewman seeking to proceed to and land in
the United States temporarily in pursuit of his calling shall,
except as provided in section 41.64, apply for an individual visa
as a nonimmigrant under the provisions of section 101(a)(15)(D) of
the Act and in accordance with the provisions of section 41.9
(sec. 101, 66 Stat. 167; 8 U.S.C. 1101).
Thus from the foregoing it will be seen that each nonimmigrant
crewman must have an individual visa or temporarily a visa may be issued
by the United States consul on the crew list. Each such nonimmigrant
must meet the burden of proof as hereinafter set forth.
22 C.F.R., section 41.61 -- Burden of proof and evidence of crewman
status -- provides:
(a) An alien applying for a visa as a nonimmigrant under the
provisions of section 101(a)(15)(D) of the Act shall not only have
the burden of establishing that he is entitled to classification
as a crewman within the meaning of that section of the Act, but
also that he is not ineligible to receive a visa as a nonimmigrant
under the provisions of section 212 of the Act, or any other
provision of law, and section 41.17.
(b) An alien applying for a visa as a nonimmigrant under the
provisions of section 101(a)(15)(D) of the Act shall establish
specifically that:
(1) he intends to proceed to, and land only temporarily in, the
United States solely in pursuit of his calling as a crewman;
(2) he intends in good faith, and will be able, to depart from
the United States with the vessel * * * on which he will arrive,
or on some other vessel * * *; and that
(3) he is in possession of a national passport or other
document, crewman's identity certificate, or other papers which
establish his origin, identity, and nationality, if any, and shall
further establish unconditionally that he will be permitted to
enter some foreign country after a possible temporary landing in
the United States (sec. 291, 66 Stat. 234; 8 U.S.C. 1361).
Significantly, the United States consul in Kobe, Japan, was not
satisfied as to the 56 aliens here involved, and as to the single seaman
from Nassau, Bahamas, B.W.I., there was laxity in obtaining the
requisite documentation.
Above all, unless specifically indicated, a separate class of alien
nonimmigrants cannot be carved from the words "all aliens' as contained
in section 273(a) of the Immigration and Nationality Act (supra).
Certainly Congress meant what it said in using the term "all aliens'
and it is all too evident that the Congress knew of the decision of this
Board in the Matter of the SS. Fred Herrling, 3, I. & N. Dec. 753, March
9, 1950. In that case we said that an alien crewman signed on here for
a round-trip voyage was not comprehended within the provisions of
section 16 of the Immigration Act approved May 26, 1924 (8 U.S.C. 216).
That case is distinguishable from the case at bar. The Congress
intended by its very action in enacting section 273 of the Immigration
and Nationality Act to make the statute applicable to "all aliens.'
Congress did not authorize any alien to come to this country unless a
visa had been issued to that alien.
So, too, was the Congress apprised of the decision in the case of
Taylor v. United States, 207 U.S. 120 (1907), wherein the court said, in
substance, that a seaman brings a vessel to the United States. The
knowledge of the Congress is quite apparent because the earlier
immigration acts had used the term "alien immigrant' and the present act
uses the term "all aliens.'
Moreover, the Congress was also familiar with the decision in the
case of Osaka Shosen Kaisha Line v. United States, 300 U.S. 98 (1937).
This case, however, pertained to a criminal prosecution under the
pursuant to the provisions of section 10 of the Immigration Act of
February 5, 1917, and the court was particularly concerned by the
question of "intent to leave,' and the Congress in the Immigration and
Nationality Act intended to block the previous so-called loopholds.
Section 31 of the act of February 5, 1917 (43 Stat. 165; 8 U.S.C.
167(c)), which section was repealed by the Immigration and Nationality
Act, provided in part as follows:
That any person, including the owner, agent, consignee, or
master of any vessel arriving in the United States from any
foreign port or place, who shall knowingly sign on the ship's
articles, or bring to the United States as one of the crew of such
vessel, any alien, with intent to permit such alien to land in the
United States in violation of the laws and treaties of the United
States regulating the immigration of aliens, or who shall falsely
and knowingly represent to the Immigration authorities at the port
of arrival that any such alien is a bona fide member of the crew,
shall be liable to a penalty not exceeding $5,000, for which sum
the vessel shall be liable * * *.
Section 31 of the act of February 5, 1917 has been replaced by
section 257 of the Immigration and Nationality Act (8 U.S.C. 1287).
That section provides as follows:
Any person, including the owner, agent, consignee, master or
commanding officer of any vessel * * * arriving in the United
States from any place outside thereof, who shall knowingly sign on
the vessel's articles, or bring to the United States as one of the
crew of such vessel * * * any alien, with intent to permit or
assist such alien to enter or land in the United States in
violation of law, or who shall falsely and knowingly represent to
a consular officer at the time of application for visa, or to the
immigration officer at the port of arrival in the United States,
that such alien is a bona fide member of the crew employed in any
capacity regularly required for normal operation and service
aboard such vessel * * * shall be liable to a penalty not
exceeding $5,000 for such violation, for which sum such vessel * *
* shall be liable and may be seized and proceeded against by way
of libel in any district court of the United States having
jurisdiction of the offense.
Congress was fully cognizant of the situation as applicable to aliens
seeking to be brought to the United States as herein set forth and they
not only provided for a civil liability and strengthened the provisions
of the statute but also provided for a criminal liability as well, and
both sections of the statute may be violated.
Section 32 of the act of 1917 (43 Stat. 165; 8 U.S.C. 167) was
repealed by the provisions of section 20(d) of the act of 1924. The
foregoing provisions of the statute were legislative enactments
preceding the passage of the Immigration and Nationality Act (supra) and
were repealed by that act. Section 16 of the act approved May 26, 1924
(8 U.S.C. 216) was also legislation preceding the enactment of section
273 of the Immigration and Nationality Act (supra). That provision of
the 1924 act made it unlawful "for any person, including any
transportation company, or the owner, master, agent, charterer, or
consignee of any vessel to bring to the United States by water from any
place outside thereof * * * (1) any immigrant who does not have an
unexpired immigration visa, * * *.'
The Congress sought to incorporate in the provisions of section 273
all of the provisions of the previous legislation, and at the same time
attempted to strengthen the statutory provisions so as to make it
unlawful for any of the persons mentioned in the statute to bring to the
United States from any place outside thereof "any alien who does not
have an unexpired visa.' Emphasis supplied.
Certainly the carrier here brought the aliens involved, since they
were not properly classified as bona fide nonimmigrant aliens, not
having been classified as such by the consuls of the United States.
Yet, notwithstanding, and with full knowledge of the deficiency, the
aliens were nevertheless brought to this country in definance of law.
It will be observed that section 273(a) (supra) provides for a
penalty to be imposed upon any of the persons mentioned therein for
bringing 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.' It might be well to contrast the provisions of
section 271 and section 274 which are also under the heading of general
penalties and it will be noted therein that these sections include an
alien crewman while section 272 relates to the bringing of aliens "other
than alien crewmen.'
The mere fact that the word "crewmen' is not contained within the
provisions of section 273(a) is no basis for a conclusion that crewmen
were not intended by Congress to be within the particular section under
discussion. Where it saw fit, Congress inserted the terminology
"including alien crewmen' merely for emphasis and appropriately employed
the terminology "other than alien crewmen.' Certainly Congress did not
intend to except alien crewmen from the operation of section 273(a) for
it specifically refers to the bringing of "any' alien. Since the term
"any' is employed, it encompasses all aliens and it is authoritative
insofar as it means just what it says.
Of course, the foregoing is a distinct change in the law as compared
with the predecessor section 16 of the Immigration Act approved May 26,
1924, /4/ wherein it was made unlawful to bring to the United States an
immigrant not in possession of an immigration visa. Obviously, Congress
intended to strengthen the law by imposing a penalty for bringing other
aliens to this country without proper documents. In this connection
reference might be made to the "Omnibus' bill which preceded the
Immigration and Nationality Act (S. 3455, 81st Cong., 2d sess.), in
section 273 of which the Congress made it unlawful to bring an immigrant
without a visa or a quota immigrant having an improper visa or a
nonimmigrant who does not have an unexpired visa, if required, so that
section 273, representing as it does section 16 of the 1924 act,
included a new section applicable to any alien who does not have an
unexpired nonimmigrant visa if required.
The following Omnibus bill, S. 716, /5/ made a change and referred
therein to the bringing of "any alien' just as is contained in the
statute as finally enacted. It is, therefore, quite obvious that
Congress intended to change the law as it appeared in section 16 of the
Immigration Act approved May 26, 1924, so that it would encompass the
bringing of any alien and not only the bringing of immigrants. The
language contained in subsection (b) of section 273 supports the view
that the section was intended to apply to the bringing of crewmen
illegally and the carrier is exempted from liability in the case of any
alien who was admitted or permitted to land temporarily. This is the
language which appears in section 252(a) of Public Law 414 /6/ and this
section relates to the manner in which alien crewmen are to be admitted
to the United States as nonimmigrants. All of this supports the
conclusion that subsection (a) specifically applies to crewmen as well
as others who are required to be possessed of an appropriate visa.
The foregoing may lead to one additional question, and that is
whether or not a visa is required in the case of an alien as here
involved and as provided in section 273(a). Accordingly, section 221(
f) of Public Law 414 (supra) and 8 C.F.R. 212.1 have been quoted, and a
reading of the said section and of the regulation makes it quite clear
that any alien who is not in possession of an individual nonimmigrant
visa, as in the instant cases, is inadmissible to the United States
unless his name appears on a visaed crew list. In the cases under
consideration the evidence of record establishes beyond a doubt that the
aliens involved were neither in possession of individual visas nor were
their names contained in the visaed crew lists, a prerequisite to the
admissibility of such nonimmigrants.
To eliminate any question in this regard the regulations promulgated
by the Attorney General pursuant to the authority contained in Public
Law 414 require all nonimmigrants, including alien crewmen, to be in
possession of a valid nonimmigrant visa or a border-crossing card. /7/
In the opinion of the special inquiry officer and in the opinion of
four members of the Board in the case of file F-0605-48, reference is
made to the language in the case of Taylor v. United States, 207 U.S.
120, as contained in the Matter of SS. Fred Herrling, F-4870, 3, I. & N.
Dec. 753, in which case the word "bring' is mentioned concerning a
member of the crew of a ship who is engaged in bringing the vessel to a
port of the United States. In the Taylor case, which involved the
conviction of a carrier charging willful permission of an alien to land
at a time and place not designated, section 18 of the act of March 3,
1903, was being interpreted, and there is found no similar provision in
section 271 of the Immigration and Nationality Act (8 U.S.C. 1321),
because in Public Law 414 Congress declared specifically that the
penalty provisions for failure to prevent the unauthorized landing of
aliens shall apply to all aliens, including alien crewmen. It is my
opinion that the language of the court in the Taylor case is
inapplicable to the case at bar, wherein the provisions of section 273(
a) of the Immigration and Nationality Act are involved, and wherein the
Congress sought to change the law to prevent just such another
determination.
The majority opinion of the Board also seeks to establish the belief
that the Taylor case, (supra), is applicable to the cases under
consideration because one of the reasons urged for affirming the
conviction of that time was that the earlier immigration acts had used
the term "alien immigrant,' whereas the act of 1903 had omitted the word
"immigrant' and that the terminology in section 273 is similar in
import. That reasoning cannot here apply because section 273 refers
especially to any alien, whether immigrant or nonimmigrant. Moreover,
the majority are of the opinion that the decision of the Supreme Court
in the case of Osaka Shosen Kaisha Line v. United States, 300 U.S. 98,
decided in 1937, is also applicable to the present cases. Obviously,
this reasoning is fallacious, because the court there was interpreting
the provisions of section 10 of the Immigration Act of February 5, 1917,
as amended (8 U.S.C. 146), which imposed a duty upon "every person,
including owners, masters, officers, and agents of vessels of
transportation lines * * * which may enter into a contract as provided
in section 23, bringing an alien to, or providing a means for an alien
to come to, the United States, to prevent the landing of such alien in
the United States at any time or place other than as designated by
immigration officers, * * *.'
When the language contained in section 273(a) of the Immigration and
Nationality Act, (supra), was adopted the Congress was fully cognizant
of the foregoing decisions of the Supreme Court, and obviously it was
the intent of the legislators to fortify the terminology by including in
the term "any alien,' alien crewmen. Appropriate statutory construction
requires that the intent of the legislators be carried out, and on the
basis of all of the evidence of record, as well as in the light of all
of the applicable law and regulations, it is my conclusion that section
273 of the Immigration and Nationality Act, (supra), applies to any
alien, including an alien crewman, and that such crewmen were required
to have either individual nonimmigrant visas or that their names appear
on visaed crew lists. Since they were not in possession of such
individual visas, and their names did not appear on such visaed crew
lists, a violation of section 273 of the Immigration and Nationality
Act, (supra), is established. There are no exceptions in the
regulations of the Attorney General or the Department of State insofar
as the facts here presented are concerned. Consequently, after careful
consideration of all of the law and of all of the regulations and of all
of the evidence, as well as the representations of the agents, it is my
conclusion that the decisions of the District Directors of Immigration
and Naturalization, San Francisco, Calif., and Miami, Fla., should be
affirmed, and that the opinion of the four members of the Board of
Immigration Appeals should be reversed.
(*) Of considerable interest but not of record here, and not used in
this determination is the practice obtaining in matters as herein
discussed. Investigation by the Immigration & Naturalization Service
and the Consular Service indicate that aliens pay certain sums of money
to hiring agents in Hong Kong to be signed on articles of vessels as
crew members, and that crew agents are fully aware of the intentions of
the aliens to desert in the United States. It has been reported that
each such alien is required to deposit some 750 Hong Kong dollars as a
guarantee of return to China, plus a guarantee of from 1,000 to 5,000
American dollars to cover any fines imposed against the shipping company
in the event of desertion.
(1) 66 Stat. 184; 8 U.S.C. 1182(a)(26).
(2) 66 Stat. 227; 8 U.S.C. 1323.
(3) 66 Stat. 192; 8 U.S.C. 1201(f).
(4) 8 U.S.C. 216; 43 Stat. 163.
(5) 82d Cong., 1st sess., Jan. 29, 1951.
(6) 66 Stat. 220, 8 U.S.C. 1282(a).
(7) 8 U.S.C. 1182(d)(4).
It is ordered that pursuant to the request of the Assistant
Commissioner, Immigration and Naturalization Service, and under the
authority of Title 8, Code of Federal Regulations, section 6.1(h)(1)(
iii), the decision of the Board is certified to the Attorney General for
review.
The decision and order of the Board of Immigration Appeals are
approved.
Crime involving moral turpitude -- "Loan sharking' -- Conspiracy to violate sections 340 and 357 of the Banking Law of New York not a crime involving moral turpitude -- Not unlawful commercialized vice within section 212(a)(12) of the Immigration and Nationality Act -- Alien engaged in unlawful commercialized vice after entry not deportable under section 241(a)(12) of the act.
(1) Conspiracy to violate sections 340 and 357 of the Banking Law of New York is not a crime involving moral turpitude since those sections are only a licensing and regulatory enactment. Statement in the conspiracy count relating to intimidation and threats is immaterial since not necessary for conviction.
(2) An alien who has engaged in unlawful commercialized vice after entry is not deportable under section 241(a)(12) of the Immigration and Nationality Act as a member of a class specified in section 212(a)(12) of the act since the latter section requires that the individual be coming to the United States to engage in such unlawful commercialized vice and does not proscribe conduct subsequent to entry.
(3) "Loan sharking' (usury) is a crime by statute in most jurisdictions and, while of a commercialized nature, it cannot be regarded as "any other unlawful commercialized vice, whether or not related to prostitution' within the meaning of section 212(a)(12) of the Immigration and Nationality Act, since there is a clear distinction between "crime' and "vice.'
CHARGES:
Warrant: Act of 1952 -- After entry, became member of class specified in section 212(a)(12), namely, alien who has been supported by or received proceeds of an unlawful commercialized vice (Loan Sharking).
Lodged: Act of 1952 -- Convicted of two crimes involving moral
turpitude -- Petty larceny; conspiracy to commit crime of violation of
banking law.
Discussion: On the 19th day of April 1954, the Board of Immigration
Appeals entered an order for the termination of the proceedings in this
case, having concluded that respondent was not deportable on the charges
shown above. The Service contends that respondent's deportability on
these charges has been established.
The record relates to a native and citizen of Italy, whose only entry
into the United States occurred on January 1, 1906, at which time he was
lawfully admitted for permanent residence. In 1921 respondent was
convicted of petty larceny committed on May 6, 1920. In 1939, in the
State of New York, in an indictment consisting of 10 counts, respondent
was charged with the commission of extortion (counts 1, 2, 4, and 5) and
in count 10 with conspiracy, together with other persons named in the
indictment, to commit the crime of violating sections 340 and 357 of the
New York Banking Law during the period from October 1934 to April 1938.
This count further states:
It was further a part of the said conspiracy, in the event the
borrower should become or remain delinquent, or refuse to pay the
principal or interest as it accrued, that the defendants would
resort to unlawful means and intimidate the said borrower and make
threats to him to do bodily harm in the event that he failed to
comply with the terms of the loan, as laid down by the said
defendants.
After setting forth the various overt acts committed by the
defendants, count 10 of the indictment concludes with the allegation:
All of the acts and transactions alleged in the several counts
of this indictment are connected together and constitute parts of
a common scheme and plan, and constitute crimes of the same or of
a similar nature.
On May 12, 1941, respondent pleaded guilty to count 10, conspiracy to
commit the crime of violation of section 340 and section 357 as a
misdemeanor and was sentenced to serve a term of 4 months' imprisonment.
The charge in the warrant of arrest alleges that respondent is
deportable under the provisions of section 241(a)(12) of the Immigration
and Nationality Act in that by reason of conduct, behavior, or activity
at any time after entry, he became a member of one of the classes
specified in section 212(a)(12), namely: An alien who has been
supported by or received in whole or in part the proceeds of unlawful
commercialized vice, to wit: loan sharking.
Section 241(a)(12) provides that an alien in the United States shall
be deported who:
by reason of any conduct, behavior or activity at any time
after entry became a member of any of the classes specified in
paragraph (12) of section 212(a); * * *.
Section 212(a)(12) provides in pertinent detail for the excludability
from admission into the United States of:
* * * aliens who are or have been supported by, or receive or
have received, in whole or in part, the proceeds of prostitution
or aliens coming to the United States to engage in any other
unlawful commercialized vice, whether or not related to
prostitution.
The Board of Immigration Appeals has concluded that respondent is not
deportable on the charge stated in the warrant of arrest for the reason
that the last category set forth in section 212(a)(12) of the act
relates to aliens coming to the United States to engage in any other
unlawful commercialized vice and does not authorize the deportation of
an alien who has been supported by the proceeds of an unlawful
commercialized vice. This conclusion by the Board requires further
consideration.
Section 241(a)(12) calls for the deportation of any alien who by
reason of any conduct, behavior or activity at any time after entry
became a member of any of the classes specified in paragraph (12) of
section 212(a). Section 212(a)(12) sets forth as one of the classes
"aliens coming to the United States to engage in any other unlawful
commercialized vice, whether or not related to prostitution.' It is
therefore necessary to determine whether respondent was a member of such
class. Counsel for respondent contends that the designated class
relates to aliens coming to the United States to engage in any other
unlawful commercialized vice and that unless an alien is coming for such
purpose he is not deportable. In other words, this argument emphasizes
the phrase "coming to.' Following this argument to a conclusion, it
would mean that an alien who engaged in unlawful commercialized vice
after his entry into the United States would not be deportable. It is
the view of the Service that such a contention is without reasonable
basis.
The words "coming to' were inserted in section 212(a)(12) of the act
for the purpose of excluding those persons who were coming to the United
States for the proscribed purpose. The important phrase designating the
class is "engage in any other unlawful commercialized vice.' Section
241(a)(12) provides for the deportability of any alien who by reason of
any conduct, behavior, or activity at any time after entry became a
member of such class. It is apparent that Congress intended that
aliens, whose conduct, behavior, or activity after entry was that of
engaging in unlawful commercialized vice, were not deemed to be
desirable residents of the United States and, consequently, were to be
deported. A holding to the contrary would give no effect to the
language contained in section 241(a)(12) and would lead to the absurdity
that a person coming to the United States to engage in unlawful
commercialized vice would be debarred from entry into the United States,
whereas a person who succeeded in entering the United States and
thereafter engaged in the proscribed conduct could remain here and
continue to engage in an illegal practice which warranted his exclusion
from the United States. Such could not have been the intent of
Congress. The various portions of a statute should be read harmoniously
in order to effectuate the overall legislative design (Shomberg v.
United States, 115 F.Supp. 336, affirmed 210 F.(2d) 82 (C. A. 2,
1954)).
The warrant of arrest charged the alien as being one who has been
supported by, or received in whole or part, the proceeds of an unlawful
commercialized vice. The phraseology might have been clearer had the
warrant of arrest charged respondent with being an alien who had engaged
in unlawful commercialized vice. However, deportation charges do not
depend on the form of the warrant of arrest (Jurgens v. Seaman, 25
F.(2d) 35 (C.C.A. 8, 1928); Sormunen v. Nagle, 59 F.(2d) 398 (C.C. A.
9, 1932)). The courts never have insisted that such warrants must have
the formality or particularity of a criminal indictment (Kostenowczyk v.
Nagle, 18 F.(2d) 834 (C.C.A. 9, 1927)). The warrant of arrest notified
the alien that he was deportable under section 241( a)(12) of the act,
in that he was a member of a class specified in section 212(a)(12), and
particularly designated that he was supported by, or received in whole
or in part, the proceeds of an unlawful commercialized vice, to wit;
loan sharking. To say this charge is defective for failing to state
that the alien had been engaged in an unlawful commercialized vice is
merely a play on words. Certainly an alien who has been supported by,
or received in whole or in part, the proceeds of an unlawful
commercialized vice has been engaged in such vice. The warrant of
arrest certainly contains sufficient information to have enabled
respondent to prepare a defense to, or refutation of the charge.
It now becomes necessary to determine whether the conduct, behavior
or activity of the alien after his entry constituted engaging in
unlawful commercialized vice. Respondent's conduct is fully set forth
in the indictment which led to his conviction in 1941. It shows that
respondent participated in a scheme to obtain monies from various
individuals at exorbitant rates of interest contrary to the banking laws
of the State of New York and to enforce collection illegally by
intimidation, threats of bodily harm, and extortion.
The statute uses the phrase "unlawful commercialized vice, whether or
not related to prostitution.' There does not appear to have been any
definition given or discussion had as to the meaning of these words by
the various congressional committees, or in the debate in Congress.
Language in a statute is generally construed according to its natural
and most obvious sense, without resorting to an artificial or forced
construction. Words of ordinary import should receive their understood
meaning and technical terms are construed in their special sense (United
States Lines Co. v. Shaughnessy, 101 F.Supp. 61 (S.D.N.Y., 1951), 195
F.(2d) 385 (C.A. 2, 1952)).
Webster's New International Dictionary, 2d ed. (1940) contains as one
of the definitions of the word "commercialize' the following:
"specifically to cause to yield pecuniary profit; as, to commercialize
vice.' Thus, "commercialized gambling' is such gambling as is a source
of sure and steady profit (State v. Gardner, 92 So. 368, 371, 151 La.
874 (Sup. Ct., 1922)). The word "vice' is defined as "state of being
given up to evil conduct or habit; depravity; wickedness;
corruption.' While the phrase "commercialized vice' has been referred to
as "traffic in women for gain,' or "immoralities having a mercenary
purpose' (Caminetti v. United States, 242 U.S. 470, 484, 497 (1917)),
the court there was speaking of the White Slave Traffic Act which
relates specifically to prostitution. However, in the provision of law
under discussion, the phrase "commercialized vice' is enlarged by the
use of the words "whether or not related to prostitution.' It was,
therefore, clearly intended by Congress that in construing the phrase
"commercialized vice,' the definition was not to be ejusdem generis with
prostitution but was to be given meaning wider in scope.
The term "loan shark' has been commonly used to describe those who
lend small sums at higher rates of interest than the law allows. See
article entitled "Loan Shark Problem' (Law and Contemporary Problems,
Vol. VIII, 1941, School of Law, Duke University). In a related article
in the same volume, entitled "Evasion and Avoidance of Usury Laws,' the
following is stated:
The most notorious of usurers in modern city life are the "five
for six boys' in the large cities. The designation grows out of
the practice of making loans of $5. for a week or 2 weeks and
exacting a promise to repay $6. No interest rate is stated. By
reputation these lenders are generally gangsters or racketeers who
readily admit their business is illegal, and who enforce their
contracts by fear of brute force.
See also article entitled "Collection Tactics of Illegal Lenders' and
in particular the discussion under the subtopic "Strong-Arm Collectors.'
Respondent was convicted of conspiracy in violation of sections 340
and 357 of the Banking Law of the State of New York. Section 340
penalizes conducting a loan business without a license, whereas section
357 punishes the offense of loaning money at usurious rates of interest
(People v. Faden, 271 N.Y. 435, 3 N.E.(2d) 584 (1936) affirming 247
App.Div. 777, 286 N.Y.S. 405 (1936)). Pertinent to the problem here
under discussion is the case of Commonwealth v. Donoghue, 250 Ky. 343,
63 S.W.(2d) 3 (1933), which "deals with the sufficiency of an indictment
charging the common-law offense of conspiracy and relates to what are
popularly referred to by the invidious and iniquitous term of "loan
sharks'.' The court sets forth a detailed history of the moral sanctions
against usury beginning with Biblical days, pointing out that usury has
been bitterly denounced in all ages of the civilized world and in most
Christian countries. "It suffices to say that the business of the
usurer has always called for vigorous condemnation and has ever been
regarded as against public welfare and public policy.' The court
furthermore stated:
The indictment does not charge the accused with the mere
exaction of usury, or of isolated instances of collecting slight
excesses over the legal rate of interest. The objects of the
conspiracy were not incidents to a legitimate business. If that
were all, it might be doubted whether it could be regarded as an
offense or an unlawful act within the meaning of that term in its
relation to conspiracy. It charges a nefarious plan for the
habitual exaction of gross usury, that is, in essence, the
operation of the business of extortion. The import of the
indictment is to charge systematic preying upon poor persons, of
taking an unconscionable advantage of their needy conditions, of
oppressing them, of extorting money from them through the disguise
of interest, and, as an intrinsic part of the plan, to prevent
restitution by obstructing public justice and the administration
of the law. If ever there was a violation of public policy as
reflected by the statutes and public conscience, or a combination
opposed to the common weal, it is that sort of illegitimate
business. It was extortioners of this class, called money
changers, whom the Christ drove from the Temple on two occasions.
The Service believes that respondent's conduct, behavior, and
activity described in the indictment as obtaining pecuniary profits
through usury, in violation of law, by means of intimidation, threats of
bodily harm and extortion, comes within the plain meaning of the term
"commercialized vice,' according to its natural and most obvious sense.
It is, therefore, urged that respondent was properly found deportable by
the special inquiry officer on the charge stated in the warrant of
arrest.
As to the lodged charge, the Board has concluded that respondent's
conviction in 1941 for conspiracy to commit the crime of violating
sections 340 and 357 of the Banking Law of the State of New York was not
a conviction for a turpitudinous offense since the crime at its minimum
did not involve moral turpitude. It is submitted that this conclusion
too, warrants further examination.
In the Matter of C , A-5595280, 5, I. & N. Dec. 65, the Board of
Immigration Appeals on October 12, 1953, stated as follows:
Upon closer scrutiny of the decision in United States ex rel.
Mylius v. Uhl (supra) /*/ we are of the opinion that while we
cannot go to the evidence or testimony outside the record of
conviction to determine moral turpitude, it is entirely proper to
determine moral turpitude upon a record of conviction itself. * *
*
The judicial pronouncements appear to postulate the rule that
in these broad divisible statutes which involve acts which do and
acts which do not involve moral turpitude, while it is improper to
go to testimony or evidence as to the nature of the particular
act, it is entirely correct and eminently fitting to base a
determination of moral turpitude upon the record of conviction,
i.e., the complaint information or indictment, plea, verdict, and
sentence. Indeed, we are precluded from going outside the record
of conviction. Where the record of conviction is of no assistance
in determining the moral obloquy of the crime, a finding of moral
turpitude cannot be made. But, where, as in the instant case, the
record of conviction clearly shows lewd and lascivious acts
involved in the commission of a crime contained in a divisible
statute, we are justified in basing thereon a conclusion that the
crime involved moral turpitude.
Respondent herein was convicted of the crime of conspiracy to commit
offenses in violation of sections 340 and 357 of the New York Banking
Law. The crime of conspiracy is defined by New York Penal Law, section
580 (McKinney's Consolidated Laws of New York, Annotated), in pertinent
part as follows:
If two or more persons conspire:
1. To commit a crime; or
6. To commit any act injurious to the public health, to public
morals, or to trade or commerce, or for the perversion or
obstruction of justice, or of the due administration of the laws,
Each of them is guilty of a misdemeanor.
It appears that respondent was convicted either under subsection 1 or
subsection 6 of section 580 of the New York Penal Law. As respondent
was convicted under a broad divisible statute, the principle of law
enunciated in the Matter of C , above, becomes pertinent. Drawing an
analogy with what was stated in Commonwealth v. Donoghue, (supra), the
indictment in the instant case did not charge respondent with the mere
exaction of usury or of isolated instances of collecting slight excesses
over the legal rate of interest. The indictment charged respondent with
a nefarious plan for the habitual exaction of gross usury and the
operation of usury by intimidation, threats of bodily harm and
extortion. It has been stated that "the unlawful taking of the property
of another by force or threats is a crime so vile that it unquestionably
involves moral turpitude' (Matter of C , A-4888223, 5, I. & N. Dec.
370). If effect is given to the language contained in the indictment,
in accordance with the doctrine enunciated in the Matter of C , 5, I. &
N. Dec. 65, respondent must be held to have been convicted of a crime
involving moral turpitude. In our view he should be found deportable on
the lodged charge as well.
Upon the basis of the foregoing, the Board of Immigration Appeals is
requested to reconsider its decision in this case, to withdraw its order
of April 19, 1954, and to enter an order directing respondent's
deportation on both of the charges discussed herein.
Motion is hereby made that the Board of Immigration Appeals
reconsider and withdraw its order of April 19, 1954, and enter an order
for the deportation of respondent.
(*) EDITOR'S NOTE: 210 Fed. 860 (C.C.A. 2, 1914).
Discussion: This case is before us on the basis of the Assistant
Commissioner's motion of April 21, 1954, requesting that we reconsider
and withdraw our order of April 19, 1954, and enter an order for the
deportation of the respondent.
The facts are set forth in our decision of April 19, 1954. Briefly,
the respondent received a suspended sentence in 1921 in connection with
a conviction for petty larceny and he pleaded guilty in 1941 to the
conspiracy count of an indictment and was sentenced to imprisonment for
4 months. It is not disputed that petty larceny involves moral
turpitude. The Service contends that the second offense also involves
moral turpitude and, on the basis of the second conviction, seeks to
sustain a charge that the respondent was engaged in an unlawful
commercialized vice, namely, "loan sharking.'
We have carefully considered the arguments set forth and cases cited
in the Assistant Commissioner's motion as well as the reply brief
submitted by the respondent's counsel. We will deal first with the
question of whether the respondent's conspiracy conviction involved
moral turpitude. The conspiracy count, to which the respondent pleaded
guilty in 1941, is the tenth count of an indictment. In that count, the
respondent and certain other defendants were accused of conspiracy, from
October 1934 until April 1938, to commit the crime of violating sections
340 and 357 of article 9 of the Banking Law of New York, these sections
being thereafter set forth, in substance, in count 10.
We have consistently held that the determination of whether the crime
of conspiracy involves moral turpitude must be made on the basis of
whether the substantive crime, which the defendants conspired to commit,
is or is not of that nature. /1/ In the respondent's case, we must
examine, therefore, sections 340 and 357 of the Banking Law of New York.
Section 340 is as follows:
340. Doing business without license prohibited. -- No person,
co-partnership, association, or corporation shall engage in the
business of making loans of money, credit, goods, or things in
action in the amount or of the value of $300 or less and charge,
contract for, or receive a greater rate of interest, discount, or
consideration therefor than the lender would be permitted by law
to charge if he were not a licensee hereunder except as authorized
by this article and without first obtaining a license from the
superintendent of banks.
The pertinent part of section 357 is as follows:
357. Restrictions on loans of three hundred dollars or less by
nonlicensees, interest; other charges; when unenforceable. -- No
person, co-partnership, association, or corporation, except as
authorized by this article, shall directly or indirectly charge,
contract for, or receive any interest, discount, or consideration
greater than the lender would be permitted by law to charge if he
were not a licensee hereunder upon the loan, use, or forbearance
of money, goods, or things in action, or upon the loan, use, or
sale of credit of the amount or value of $300 or less.
Section 352 of article 9 provides that a person licensed under
article 9 may loan any sum not exceeding $300 and charge 3 per cent per
month on the first $150 and 2 1/2 per cent per month on the remainder.
The violation of sections 340 and 357 is made a misdemeanor by section
358. The foregoing statutory provisions may be briefly summarized as
follows: Section 340 prohibits the doing of a small loan business
without a license; section 352 permits a licensee to charge more than 6
per cent interest per year; and section 357 prohibits a nonlicensee
from charging more than 6 per cent.
It is well settled that the presence or absence of moral turpitude
must be determined, in the first instance, from a consideration of the
crime as defined by the statute; that we cannot go behind the judgment
of conviction to determine the precise circumstances surrounding the
commission of the crime; and that, if the offense, as defined in the
statute, does not inherently or in its essence involve moral turpitude,
then no matter how immoral the alien may be, or how iniquitous his
conduct may have been in the particular instance, he cannot be deemed to
have been guilty of base, vile or depraved conduct. /2/ It is only
where the statute includes within its scope offenses which do and some
which do not involve moral turpitude, and is so drawn that the offenses
which do embody moral obloquy are defined in divisible portions of the
statute and those which do not in other such portions, that the record
of conviction, that is, the indictment, plea, verdict and sentence may
be examined to ascertain therefrom under which divisible portion of the
statute the conviction was had and determine from that portion of the
statute whether moral turpitude is involved. /3/
In Matter of P , A-3748813, 2, I. & N. Dec. 117, 121, decided June
23, 1944, we said "One of the criteria adopted to ascertain whether a
particular crime involves moral turpitude is that it be accompanied by a
vicious motive or corrupt mind' and we also stated that it was in the
intent that moral turpitude inheres. When we examine, in the light of
the principles discussed above, the statutory provisions which the
respondent was convicted of conspiring to violate, namely, sections 340
and 357 of the Banking Law of New York, we find only a licensing and
regulatory enactment with a complete absence of any element which could
be considered to denote baseness, vileness or depravity. No criminal
intent is required to be established and negligence in failing to secure
a license to carry on a small loan business or inadvertently "receiving'
more than the interest permitted would make the offender subject to
prosecution. In view of the foregoing, we have no hesitancy in holding
that the crime, of which the respondent was convicted in 1941, does not
involve moral turpitude.
In reaching the conclusion mentioned, we have not, of course,
overlooked the argument by which the Assistant Commissioner has sought
to persuade us that the crime does involve moral turpitude. It runs
thus. The crime of conspiracy is defined in section 580 of the New York
Penal Law; the respondent was convicted under either subsection 1 or
subsection 6 thereof; and hence, it is a broad divisible statute.
Therefore, it is urged that we look to the allegations which were made
in the indictment. In this connection, the Service relies heavily on
our decision in Matter of C , A-5595280, 5, I. & N. Dec. 65, decided
October 12, 1953. We are convinced that the applicable part of section
580 is subsection 1 which provides that if two or more persons conspire
"To commit a crime' each of them is guilty of a misdemeanor; that no
broad divisible statute is involved in this case; and that our decision
in Matter of C , (supra), has no application.
The Assistant Commissioner's motion also refers to the fact that the
respondent and other defendants were charged with extortion in counts 1,
2, 4, and 5 of the same indictment that contained the conspiracy count
to which the respondent pleaded guilty /4/ and that the conspiracy count
contains a statement that it was part of the conspiracy "that the
defendants would resort to unlawful means and intimidate the said
borrower and make threats to him to do bodily harm in the event that he
failed to comply with the terms of the loan, as laid down by the said
defendants.' Apparently, these matters are the basis for the following
statement in the motion, "The indictment charged respondent with a
nefarious plan for the habitual exaction of gross usury and the
operation of usury by intimidation, threats of bodily harm and
extortion.'
The respondent was not convicted on the counts of the indictment
which charged extortion and those charges were dismissed. It is true
that some of the "overt acts' relating to the conspiracy count contain
allegations that intimidation and threats of bodily harm (which would
constitute extortion) were resorted to by the defendants to enforce
payment of the loans. However, other "overt acts' relate solely to the
loaning of money and the voluntary repayment without intimidation or
threats. /5/
The Supreme Court, in United States v. Britton, 108 U.S. 199, 204
(1883), said "This offense (conspiracy) does not consist of both the
conspiracy and the acts done to effect the object of the conspiracy, but
of the conspiracy alone.' In addition, conspiracy is complete upon the
commission of a single overt act and, if several overt acts are charged
in the indictment, it is sufficient to establish that at least one of
these acts was committed in furtherance of the conspiracy. /6/ We hold,
therefore, that the respondent's plea of guilty to, and his conviction
of, conspiracy to commit the crime of violation of sections 340 and 357
of the Banking Law does not establish that he or his coconspirators
resorted to intimidation or threats of bodily harm as alleged in some of
the overt acts, since the respondent's conviction might equally have
been predicated on an overt act which did not involve that element.
Likewise, we must disregard the statement, quoted above from the
conspiracy count itself, relating to intimidation and threats since it
is immaterial, for the purpose of a conviction under sections 340 and
357, whether intimidation and threats were resorted to or whether the
borrower voluntarily paid more than the legal rate of interest. For the
reasons mentioned, we must reject the contention of the Service that the
crime, of which respondent was convicted in 1941, involved moral
turpitude.
We turn now to the ground asserted in the warrant of arrest which
charges that the respondent is deportable under section 241(a)(12) of
the Immigration and Nationality Act because, after entry, he became a
member of a class specified in section 212(a)(12) of that act, namely,
"an alien who has been supported by or received in whole or in part the
proceeds of an unlawful commercialized vice, to wit: Loan Sharking.'
Paragraph (12) of section 241(a) directs the deportation of an alien who
"by reason of any conduct, behavior or activity at any time after entry
became a member of any of the classes specified in paragraph (12) of
section 212(a); * * *.' Section 212(a) sets forth the classes of aliens
who shall be excluded from admission into the United States and
paragraph (12) thereof is, in part, as follows:
Aliens who are prostitutes * * *; and aliens who are or have
been supported by, or receive or have received, in whole or in
part, the proceeds of prostitution or aliens coming to the United
States to engage in any other unlawful commercialized vice,
whether or not related to prostitution.
We have emphasized above the language relied upon in the warrant of
arrest. As stated in our previous decision, there is no legal basis for
thus attempting to connect the language relating to one class of aliens
with language pertaining to another class. In its motion, the Service
urges that we find the respondent deportable on the ground that he
engaged in an unlawful commercialized vice after entry, and that this is
substantially the same as the charge in the warrant of arrest. We need
not pass on the question of whether the charges are sufficiently similar
since we hold that the statute does not authorize the respondent's
deportation on the charge which is now proposed.
The Service contends that the class of aliens are those engaged in
any other unlawful commercialized vice, and we are asked to disregard
the phrase "coming to the United States.' It is argued that there is an
absurdity in excluding a person who is coming to the United States for
the purpose of engaging in an unlawful commercialized vice and failing
to provide for the deportation of persons who, although not coming to
the United States for that purpose, subsequently become engaged in such
activity. We perceive no incongruity although we might point out that,
even the construction urged by the Service, would not reach aliens
applying for admission who had been engaged in unlawful commercialized
vice (other than prostitution) prior to entry and who were not coming to
the United States to engage in such activity.
There are other illustrations of a differentiation made by Congress
between arriving aliens and those who have taken up residence in the
United States. /7/ We note also that in the first part of section 212(
a)(12) where the same phrase was used, /8/ it was coupled with the
present and past tenses, thus clearly rendering deportable aliens who
engaged in prostitution after entry, and that in section 241(a)(12) a
specific provision was made with respect to aliens who, after entry, had
been connected with the management of a house of prostitution. We
entertain no doubt that a similar specific provision would have been
included if Congress had intended to authorize the deportation of aliens
who engaged in unlawful commercialized vice after entry. In addition,
it is well settled that, where the language of a statute is plain and
unambiguous, the duty of interpretation does not arise. /9/ In such
cases, the literal meaning of the words used must prevail. It is
obvious that the respondent was not "coming to the United States' to
engage in an unlawful commercialized vice since his only entry occurred
on January 1, 1906, when he was approximately 8 years of age.
Another matter which requires consideration is whether the Government
has established, as alleged in the warrant of arrest, that the
respondent was engaged in "loan sharking.' We have not found any
authoritative definition of that phrase. The Assistant Commissioner, in
his motion, has defined it as follows: "The term "loan shark' has been
commonly used to describe those who lend small sums at higher rates of
interest than the law allows.' If we accept that definition, the phrase
"loan sharking' adds nothing to the 1941 conviction because essentially
that was the offense involved. If "loan sharking' implies the use of
intimidation, threats or physical violence, then the evidence does not
establish "loan sharking' on the basis of the conviction record for the
reasons previously stated; there is no other evidence establishing that
the respondent was engaged in "loan sharking'; and his testimony
contains a denial that he received proceeds from loan sharking, or that
he was engaged in any unlawful commercialized vice or that he ever used
threats of physical harm to collect usurious rates of interest.
There is one additional reason why the warrant charge cannot be
sustained. We do not believe that "loan sharking' comes within the
phrase "any other unlawful commercialized vice, whether or not related
to prostitution' which appears in section 212(a)(12) of the Immigration
and Nationality Act. In 15 Corpus Juris Secundum, page 578,
commercialized vice is defined as "traffic in women for gain' and this
is based on a statement made in Caminetti v. United States, (supra)
(note 9) page 484. It is clear that a broader meaning must now be given
to "commercialized vice' in view of the added phrase "whether or not
related to prostitution.'
Insofar as the word "commercialized' is concerned, it seems obvious
that a commercialized vice is one that has been made a matter of trade
or a source of profit. However, the Service contention appears to be
that in the phrase "commercialized vice,' the word "vice' should be
given a meaning synonymous with "crime' so that any crime from which
pecuniary profits are derived would be a form of commercialized vice.
Had this been the congressional intention, it would have been logical to
employ the words "commercialized crime.' In Webster's New International
Dictionary (2d ed.), the word "vice' is defined as follows: "1. A moral
fault or failing; esp., immoral conduct or habit, as in the indulgence
of degrading appetites; as, the vice of gluttony. 2. State of being
given up to evil conduct or habit; depravity; wickedness;
corruption.' Statutory words are presumed to be used in their ordinary
and usual sense and with the meaning commonly attributed to them
(Caminetti v. United States (supra) (note 9) page 485). We think there
is a clear distinction between "crime' and "vice' and that the ordinary
and usual sense in which the latter is used is in describing a moral
failing or an immoral habit, as for example, the vice of prostitution,
of gambling, of addition to narcotics, etc. While "loan sharking'
(usury) is made a crime by statute in most jurisdictions and while it is
a crime of a commercialized nature, we are convinced that it cannot, in
any true sense of the word, be considered a vice. For the reasons set
forth above, we adhere to our previous conclusion that the charges
against the respondent are not sustained and that the proceedings should
be terminated. Accordingly, the Assistant Commissioner's motion will be
denied.
Order: It is ordered that the motion of the Assistant Commissioner
dated April 21, 1954, be and the same is hereby denied.
(1) Matter of N , A-1779952, 2, I. & N. Dec. 201, 202 (1944); Matter
of S , 56152/593, 2, I. & N. Dec. 225, 226 (1944); Matter of B ,
55811/86, 2, I. & N. Dec. 542, 544 (1946); Matter of F , A-6019766, 2,
I. & N. Dec. 754, 756 (1947); Matter of P , 56038/653A, 3, I. & N.
Dec. 56, 61 (1948).
(2) United States ex rel. Mylius v. Uhl, 203 Fed. 152, aff'd. 210
Fed. 860 (C.C.A. 2, 1914); United States ex rel. Portada v. Day, 16
F.(2d) 328 (S.D. N.Y., 1926); United States ex rel. Robinson v. Day, 51
F.(2d) 1022 (C.C.A. 2, 1931); United States ex rel. Meyer v. Day, 54
F.(2d) 336 (C.C.A. 2, 1931); Matter of S , A-5702971, 2, I. & N. Dec.
353, 357 (Approved by Attorney General Aug. 18, 1945).
(3) Matter of S , (supra), (note 2).
(4) The respondent was not named as a defendant in counts 3, 6, 7, 8,
and 9.
(5) Examples are "overt acts' 1, 2, 5, and 7.
(6) Williams et al. v. United States, 3 F.(2d) 933, 935 (C.C.A. 6,
1925); Hall v. United States, 109 F.(2d) 976, 984 (C.C.A. 10, 1940);
15 Corpus Juris Secundum, Conspiracy 43, p. 1068.
(7) Compare section 212(a)(9) with section 241(a)(4). Section 212(
a)(13) uses language identical with that under consideration, namely,
"Aliens coming to the United States to engage in any immoral sexual act'
but aliens not coming for that purpose who subsequently engage in such
acts are not deportable.
(8) (12) * * * aliens coming to the United States * * * to engage in
prostitution; * * *.
(9) Caminetti v. United States, 242 U.S. 470, 485 (1917).
Pardon -- Section 241(b) of the Immigration and Nationality Act -- Benefits aliens deportable under section 241(a)(1) and section 241(a)( 4) of the Immigration and Nationality Act.
The pardoning provision contained in section 241(b) of the Immigration and Nationality Act includes not only a person who is deportable under section 241(a)(4), but also a person who is deportable under section 241(a)(1) as an alien excludable at the time of entry because a member of a proscribed criminal class. As long as there is a full and unconditional pardon granted by the President or by a governor of a state covering the crime which forms the ground of deportability, whether conviction was subsequent or prior to entry, the immunizing feature of the pardon clause applies, and such a crime no longer forms a basis for deportability.
CHARGE:
Warrant: Immigration & Nationality Act -- Section 241(a)(1) --
Convicted of crime prior to entry, to wit: Forgery, uttering and
larceny.
Discussion: On the 2d day of April 1954, the Board of Immigration
Appeals entered an order approving the decision of the special inquiry
officer, dated February 18, 1954, wherein he entered an order for the
termination of this proceeding. It was concluded that since the
respondent had obtained a pardon for the crimes which form the basis of
the charge shown above, the charge was no longer sustainable.
The record relates to a 41-year-old married female, a native and
citizen of Canada, who was lawfully admitted to the United States for
permanent residence on January 6, 1912. On August 4, 1931, after a plea
of guilty, respondent was convicted in the Superior Court, Suffolk
County, Mass., of the crimes of uttering a forged instrument and
larceny. These offenses involve moral turpitude. Respondent thereafter
made two trips to Canada for short periods, one in 1940 and the other in
1943. She last entered the United States sometime in July 1943 at
Newport, Vt., as a returning resident alien. Deportation proceedings
were instituted based on the charge shown above by the issuance of the
warrant of arrest on May 18, 1953, and the service thereof upon
respondent on November 4, 1953. On November 18, 1953, respondent was
granted by the Governor of the Commonwealth of Massachusetts a full and
complete pardon for the crimes.
The issue presented is whether a pardon is effective to prevent
deportation under the provisions of section 241(a)(1) of the Immigration
and Nationality Act for a charge based on the conviction of a crime
involving moral turpitude prior to entry.
The Immigration Act of 1917, as amended, contained a proviso in
section 19(a) to the effect that the provision of such section
respecting the deportation of aliens convicted of a crime involving
moral turpitude should not apply to one who has been pardoned. It has
been concluded both administratively and judicially that under this
proviso, a pardon (as well as a valid recommendation against
deportation) relating to a crime committed in the United States prior to
an alien's reentry to the United States was effective to prevent
deportation on a charge based on the commission of a crime prior to
entry (Perkins v. United States ex rel. Malesevic, 99 F.(2d) 255 (C.C.
A. 3, 1938); Rasmussen v. Robinson, 163 F.(2d) 732 (C.C.A. 3, 1947);
Matter of H and Y , A-4799866, 3, I. & N. Dec. 236 (C. O., 1948)).
These decisions were apparently based on the view that Congress intended
the pardoning provisions to apply to crimes committed in the United
States, prior to as well as after entry. However, even this view was
not free from doubt. (See United States v. Hughes, 116 F.(2d) 613
(C.C.A. 3, 1940); United States ex rel. Palermo v. Smith, 17 F.( 2d)
534 (C.C.A. 2, 1927).)
It is, therefore, well established that were this case to be decided
under the provisions of the Immigration Act of 1917, as amended,
respondent would not be deportable in respect to the crimes committed
prior to her reentries. However, this proceeding was instituted under
the provisions of the Immigration and Nationality Act, the pardon was
obtained after the effective date of such act and, consequently, it is
necessary to consider the provisions of such act. The present provision
relating to pardons is contained in section 241(b) and provides that the
provisions of subsection (a)(4) respecting the deportation of an alien
convicted of a crime or crimes shall not apply in the case of any alien
who has subsequent to such conviction been granted a pardon or a proper
recommendation against deportation. Specifically this provision
provides that the pardon shall only apply to the provisions of section
241(a)(4) of the act. Subsection (4) relates to the deportability of an
alien based on a charge resulting from a conviction of a crime involving
moral turpitude committed within 5 years after entry or for the
conviction of two crimes involving moral turpitude after entry.
Respondent's deportability in this case is not predicated upon the
provisions of section 241(a)(4) but rather those of section 241(a)(1),
not upon a crime committed after entry but rather upon a crime committed
prior to entry. At the time of respondent's reentries into the United
States in 1940 and 1943, she was within one or more of the classes of
aliens excludable by the law existing at the time of such reentries.
The pardon she obtained was issued on November 18, 1953, at a time when
the Immigration Act of 1917, as amended, was no longer in effect. It
cannot therefore be concluded that respondent's case comes within any of
the savings clauses set forth in section 405 of the Immigration and
Nationality Act.
It might be contended, however, that the provisions of section 241(
b) should be given the same effect as the proviso in section 19(a) of
the Immigration Act of 1917, as amended. However, as heretofore stated,
the decisions in respect to that proviso were apparently based on the
view that Congress intended the pardoning provisions to apply to crimes
committed in the United States prior to as well as after entry. The
reasoning applied in respect to the Immigration Act of 1917, cannot be
applied to the provisions of the present act. By its very terms,
section 241(b) applies only to cases coming within the provisions of
subsection (a)(4) of section 241. Thus, a legislative pardon which
would have been effective to prevent deportation under the Immigration
Act of 1917, as amended, no longer serves for such purpose (Matter of R
, E-080924, 5, I. & N. Dec. 612 (B.I.A., January 14, 1954)). In that
case the Board of Immigration Appeals stated in reference to section
241(b) as follows:
We construe this section to represent a change in the existing
law. It is a canon of statutory construction that legislative
language will be interpreted on the assumption that the
legislature was aware of existing statutes, as well as the
judicial interpretations thereof; and that if a change occurs in
legislative language, a change was intended in legislative result,
Sutherland, Statutes and Statutory Construction, volume 2, section
4510 (1943 ed.). It must be presumed, therefore, that when
Congress enacted the Immigration and Nationality Act, it was aware
of the judicial decisions which construed section 19(a) of the
1917 act to include legislative pardons.
A similar conclusion was reached in the Matter of I , E-25308, 5, I.
& N. Dec. 343 (B.I.A., July 21, 1953) wherein a recommendation against
deportation to prevent deportability under section 241(a)(11) of the
Immigration and Nationality Act was held to be ineffective. In that
case the Board stated:
Since the provision relating to a recommendation by the court
against deportation is now specifically limited to persons who are
deportable under section 241(a)(4) and since there is no similar
provision relating to section 241(a)(11), under which the
respondent is deportable, it follows that the recommendation
against deportation which was made by the court in his case is not
a bar to his deportation under section 241(a)(11) of the
Immigration and Nationality Act.
To the same effect in a case involving a recommendation against
deportation for a narcotic offense, see the decision by the United
States District Court for the Northern District of California, January
21, 1954, in the matter of Ex parte Robles-Rubio, 119 F.Supp. 610.
Should it be contended that the effect of a pardon is to wipe out a
crime for immigration purposes, it might be pointed out that such a
theory has been refuted by the decisions, administrative and judicial,
that foreign pardons are ineffective to prevent exclusion or deportation
based on crimes committed in a foreign jurisdiction (Matter of G ,
A-7873905, 5, I. & N. Dec. 129 (B.I.A., Feb. 17, 1953)) and that
legislative pardons for immigration purposes are ineffective under the
provisions of the present act.
In view of the above, it is the view of the Service that since the
pardoning provision in the present act is limited to cases coming within
the provisions of section 241(a)(4) of the Immigration and Nationality
Act, the pardon in this case is no bar to deportability under section
241(a)(1) of the act. Consequently, respondent is deportable on the
charge stated in the warrant of arrest. It is, therefore, deemed
appropriate to request that the Board of Immigration Appeals reconsider
and withdraw its order of April 2, 1954, and take such further action in
the case as it deems appropriate.
Motion is hereby made that the Board of Immigration Appeals
reconsider and withdraw its order of April 2, 1954, and take such
further action in this case as it deems appropriate.
Discussion: The matter is before us on motion of the Assistant
Commissioner, Inspections and Examinations Division, requesting that we
reconsider and withdraw our order of April 2, 1954, and take such
further action in the case as appears appropriate. In our previous
order we approved the decision of the special inquiry officer, dated
February 18, 1954, wherein he ordered termination of the deportation
proceedings on the basis of a full and complete pardon granted the
respondent on November 18, 1953, covering the crimes of uttering a
forged instrument and larceny, such pardon being granted by the Governor
of the Commonwealth of Massachusetts.
The record relates to a native and citizen of Canada, 42 years old,
female, who was lawfully admitted to the United States for permanent
residence on January 6, 1912. On August 4, 1931, the respondent was
convicted on her plea of guilty in the Superior Court, Suffolk County,
Mass., of the crimes of uttering a forged instrument and larceny.
Thereafter she made brief visits to Canada in 1940 and 1943 and last
entered the United States about July 1943 at Newport, Vt., being
admitted as a returning resident alien.
Section 19(a) of the Immigration Act of 1917, as amended, (8 U.S.C.
155(a) 1940 ed.) contains the following proviso:
Provided further, That the provision of this section respecting
the deportation of aliens convicted of a crime involving moral
turpitude shall not apply to one who has been pardoned, nor shall
such deportation be made or directed if the court, or judge
thereof, sentencing such alien for such crime shall, at the time
of imposing judgment or passing sentence or within thirty days
thereafter, due notice having first been given to representatives
of the State, make a recommendation to the Attorney General that
such alien shall not be deported in pursuance of this Act; * * *.
In interpreting the proviso relating to valid pardons and
recommendations against deportation the rule was laid down that the
effectiveness of such pardons and recommendations against deportation
was not limited to deportation proceedings based on the commission of a
crime subsequent to entry but was also effective as to commission of
crime prior to entry; that the proviso applied equally to exclusion and
deportation proceedings and to arrest and deportation proceedings. /1/
It is contended, however, by the Service that section 241(b) of the
Immigration and Nationality Act represents a change in the law and must
be given effect. Section 241(b) provides as follows:
The provisions of subsection (a)(4) respecting the deportation
of an alien convicted of a crime or crimes shall not apply (1) in
the cases of any alien who has subsequent to such conviction been
granted a full and unconditional pardon by the President of the
United States or by the Governor of any of the several States, or
(2) if the court sentencing such alien for such crime shall make,
at the time of first imposing judgment or passing sentence, or
within thirty days thereafter, a recommendation to the Attorney
General that such alien not be deported, due notice having been
given prior to making such recommendation to representatives of
the interested State, the Service, and prosecution authorities,
who shall be granted an opportunity to make representations in the
matter.
It is the position of the Service that in view of the specific
reference to subsection (a)(4) of section 241 of the Immigration and
Nationality Act (which provides for the deportation of aliens convicted
of a crime involving moral turpitude committed within 5 years after
entry and sentenced or confined to imprisonment for a year or more, or
who at any time after entry are convicted of two crimes involving moral
turpitude), the forgiveness aspect of pardons and recommendations
against deportation must be confined to this particular ground of
deportability.
It is true that we have given effect to the change in statutory
language so as to make the pardon feature not applicable in certain
situations. Thus in Matter of R , (supra), we held that in view of the
limitation in section 241(b) to full unconditional pardons by the
President of the United States or by a Governor of any of the several
States, a legislative pardon under the law of Pennsylvania was no longer
effective to prevent deportation under a charge laid under the
provisions of section 241(a)(4) of the Immigration and Nationality Act;
likewise we held in Matter of I , (supra), that a recommendation against
deportation upon a charge predicated upon a narcotic violation was not a
bar to deportation under section 241(a)(11) because narcotic violations
were not referred to in section 241(b). We have also concluded that
conditional pardons were not effective under section 241(b) of the
Immigration and Nationality Act because this section specifically refers
to full and unconditional pardons. However, we do not believe that
these references are necessarily dispositive of the question in this
case since the disposition of those cases rested upon other terminology
in section 241(b).
It is to be remembered that the respondent in the present case is
deportable under section 241(a)(1) of the Immigration and Nationality
Act on the ground that at the time of entry she was within one or more
of classes of aliens excludable by the law existing at the time of such
entry because of the commission and admission of a crime. It is to be
noted that section 241(b) refers to the deportation of an alien
convicted of a crime or crimes. Thus, in both instances, the subject
matter is in pari materia. We are aware of no congressional intent to
be more lenient to a person convicted of a crime in the United States
subsequent to an entry than to a person convicted in the United States
subsequent to an original entry and prior to a reentry.
We are not here dealing with a foreign pardon, or a legislative
pardon, or a conditional pardon. The important feature is that a
governor of a state has granted a valid person of a crime committed in
the United States. Previously such a pardon was effective to "immunize'
the offending alien from being expelled from this country because of
that criminal conduct. Paraphrasing an analogous situation under the
1917 Immigration Act respecting a recommendation against deportation,
/2/ it is not inconsistent with the legislative pattern for the
enforcement of the immigration laws to hold, that the relief from
expulsion granted under the pardoning clause should be extended to
immunize the same alien for the same offense when he seeks to reenter
the United States, where such an alien committed his offense in the
United States and a valid pardon has been granted to prevent his
expulsion; essentially, it does not matter whether the alien is the
subject of exclusion proceedings or warrant proceedings.
An examination of the legislative history of the Immigration and
Nationality Act fails to disclose any intent to change the prior
administrative and judicial holdings that pardons were equally effective
in exclusion or in expulsion proceedings. Mr. Walter M. Besterman,
Legislative Assistant, Committee on the Judiciary, House of
Representatives, in his commentary on the Immigration and Nationality
Act, /3/ stated that an alien deportable because of conviction of a
crime or crimes involving moral turpitude will not be deported if,
subsequent to his conviction, he has been granted a full and
unconditional pardon by the President of the United States or by the
Governor of any State. The substance of section 241(b) is that
deportation shall not be undertaken against a convicted alien who has
been pardoned upon the basis of the crime or crimes which constitute the
subject matter of the pardon. There is no sound basis in logic or in
reason to hold that this pardoning forgiveness or immunity applies to an
alien who has been convicted of a crime involving moral turpitude within
5 years after entry, and not to the case of the instant respondent, who
has resided in this country since 1912 and who committed a crime prior
to her last entry as a returning resident in 1943. To adopt such a
construction would in effect negate a clearly expressed congressional
intent to immunize the pardoned criminal from the consequences of his
criminal act.
It is concluded therefore that the pardoning provision contained in
section 241(b) of the Immigration and Nationality Act includes not only
the criminal who is deportable under section 241(a)(4), but also the
criminal who is deportable under section 241(a)(1) because a member of a
proscribed criminal class, section 212(a)(9), at time of entry. As long
as there is a full and unconditional pardon granted by the President or
by a Governor of a State covering the crime which forms the ground of
deportability, whether in exclusion or in expulsion, the immunizing
feature of the pardon clause applies, and such a crime no longer forms a
basis for deportability. The motion to reconsider will accordingly be
denied.
Order: It is ordered that the motion to reconsider and withdraw our
prior order affirming the decision of the special inquiry officer
terminating the proceedings be and the same is hereby denied.
(1) Perkins v. United States ex rel. Malesevic, (supra); Rasmussen
v. Robinson, (supra); Matter of H and Y , (supra).
(2) Matter of H and Y , 3, I. & N. Dec. 236, 243.
(3) 8 U.S.C. p. 63 (1952 edition).
Fine -- Section 273 of the Immigration and Nationality Act -- Individual waiver of nonimmigrant documents not defense to imposition of penalty thereunder.
(1) An individual waiver of documents granted a nonimmigrant under section 212(d)(4)(A) of the Immigration and Nationality Act on the basis of unforeseen emergency subsequent to arrival in the United States does not constitute a defense to the imposition of administrative penalty under section 273 of the act.
(2) The foregoing situation is distinguishable from a case involving a standing waiver granted jointly by the Attorney General and the Secretary of State and published in the regulations under the authority of section 212(d)(4)(B) and (C) of the act, in which situation a fine would not lie.
IN RE: SS. Florida, which vessel arrived at Miami, Florida, from
Havana, Cuba, on either July 7 or 8, 1953. Alien passengers involved, R
E de la N G and S M F y F .
Discussion: This matter is before us by reason of a motion filed by
counsel requesting reconsideration of the decision and order of this
Board bearing date January 29, 1954. In that decision an appeal from
the determination of the District Director of Immigration and
Naturalization, Miami, Fla., bearing date September 9, 1953, was
dismissed. On the occasion of that determination a fine in the amount
of $2,000, $1,000 for each alien involved, was imposed upon the
Peninsular and Occidental Steamship Company, owners and agents of the
aforementioned vessel, which vessel arrived at the port and on the date
hereinabove set forth from a foreign port or place for violation of
section 273 of the Immigration and Nationality Act (8 U.S.C. sec.
1323).
Inasmuch as the statute was set out at length in our prior opinion it
is unnecessary to set it out here at length again.
Referring to section 273(a) of the Immigration and Nationality Act,
it will be observed that the carrier is subject to a fine for bringing
to the United States from any place outside thereof any alien who does
not have an unexpired visa, "if a visa was required under this act or
regulations issued thereunder.'
Section 273(c) of the said act permits the remission or refund of the
amount of penalty if the carrier establishes to the satisfaction of the
Attorney General that, prior to the departure of the vessel from the
last foreign port, 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' (8 U. S.C.
section 1323(c)).
The specific violation found both by the Service and by this Board
was bringing to the United States from a place outside thereof the two
alien passengers, as aforesaid, who were not in possession of unexpired
nonimmigrant visas as required by the provisions of the statute, and
they were excluded from admission to the United States following their
arrival under and pursuant to the provisions of section 212(a)(26)(B) of
the Immigration and Nationality Act (8 U.S.C. section 1182(a)(26)( B)).
8 C.F.R. section 212.1 provides, among other things:
Except as otherwise provided in the Immigration and Nationality
Act * * * an alien * * * who applies for admission to the United
States as a nonimmigrant shall present a valid unexpired
nonimmigrant visa issued to him under the nonimmigrant
classification in which he seeks admission * * *.
Counsel on the present motion contends (1) that the order of this
Board of January 29, 1954, is contrary to the law and the evidence; (2)
that it affirmatively appears that the Board failed to give
consideration to certain factors which were stressed at the oral
argument before this Board; (3) that the Board should meet squarely
(and not pass over sub silentio) the "nunc pro tunc waiver' of
documentary requirements as affecting not only the aliens but also the
carrier; and (4) that the decision of this Board is contrary to the
whole purpose and intent of the Immigration and Nationality Act.
The specific questions raised by counsel on the present motion are
predicated upon the effect of waiver of the nonimmigrant passport visa.
It is contended by counsel on the present motion that the alleged
"nunc pro tunc waiver' was in legal effect a waiver of the visa
requirements as of the time of application for entry. With this
contention we cannot agree for the reasons already set forth and for the
further reason that the facts contained in the record are contrary to
the contention of counsel.
At the time of application for admission to the United States made by
these two passengers they were found to be not in possession of
unexpired valid nonimmigrant visas as hereinafter more definitely
explained.
In addition, counsel avers that there were no visa requirements in
effect at the time of application made by these two aliens for entry and
that there was no violation on the part of the carrier because a "nunc
pro tunc waiver' of visa requirements is in legal effect the same as if
there had been no visa requirements at all at the time of application.
Again, as herein set forth, the premises advanced by counsel are
faulty, because these two aliens were refused admission to the United
States under and pursuant to the provisions of section 212(a)(26) of the
Immigration and Nationality Act (8 U.S.C. section 1182(a)(26)) which
section clearly provides "Except as otherwise provided in this Act, the
following classes of aliens * * * shall be excluded from admission into
the United States: Any nonimmigrant who is not in possession of * * *
(B) at the time of application for admission a valid nonimmigrant visa *
* *.'
The evidence of record shows that R E de la N G and S M F y F ,
husband and wife, both natives and citizens of Cuba, presented valid
passports at the time of their arrival. Both passports contained
nonimmigrant visas issued by the American Vice Consul in Havana, Cuba,
under and pursuant to the provisions of section 3(2) of the Immigration
Act approved May 26, 1924 (8 U.S.C. section 203). These visas permitted
a visit to the United States and, following a prior visit to this
country, were no longer valid, they being valid for a single entry only.
As heretofore set forth in the opinion of this Board of January 29,
1954, had the steamship company's representatives interrogated these
aliens carefully, the foregoing facts could have been ascertained
without difficulty.
After arrival and subsequent to careful examination and inspection
these aliens were found inadmissible to the United States, and
accordingly were refused admission pursuant to law as herein set forth.
Following their arrival and subsequent to their exclusion application
was made to the Department of State for waiver of documentary
requirements and that waiver was granted in order to eliminate the cause
for their exclusion. As we understand it, this is not a nunc pro tunc
waiver, but a permissible waiver granted subsequent to arrival. Certain
waivers of nonimmigrant visa requirements have been granted under the
authority of the act and we must necessarily inspect the act itself to
ascertain whether on this occasion a nonimmigrant visa was not required,
so it can be seen readily that the visa was as a matter of fact
required, and so we likewise look to the act because of the statutory
requirements whether or not a penalty has been incurred if visa is
required by the law and regulations under the authority of the act.
No penalty is incurred by a carrier which brings to the United States
an alien who comes within the standing waivers granted by the Attorney
General and the Secretary of State jointly published in the regulations
under the authority of classes (B) and (C) of section 212( d)(4) of the
act. The instant case was not one within those provisions.
In the instant case a different result follows with respect to the
individual waivers granted subsequent to arrival and following
exclusion. The manifest intention of Congress as appears from the plain
language of section 273 of the Immigration and Nationality Act was to
subject carriers to a penalty for taking on board and bringing to the
United States aliens not in possession of required documents. If the
carrier were to escape such penalty merely because the documents were
waived subsequent to arrival and following exclusion, the carrier would
be in a position of being permitted to speculate upon the administration
and enforcement of the law. When a carrier takes on board and brings a
nonimmigrant to the United States not in possession of the documents
required by law and regulation, it has thereby incurred the
administrative penalty specified in section 273 of the Immigration and
Nationality Act.
If in the case of an individual alien a waiver of the documents is
lawfully granted by the Attorney General and the Secretary of State on
the basis of an unforeseen emergency as in the present case, there is
nothing in the law as alleged by counsel which automatically removes
from the carrier the liability already incurred.
The only conditions under which a penalty may not be imposed are
stated in subsection (c) of section 273, which provides that a carrier
is exempt from a fine if prior to the departure of the vessel from the
last port outside the United States he 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 situation here is analogous to that in the Hamburg American Line
v. United States, 291 U.S. 420 (1934), in which the Supreme Court held
that a waiver of documents under section 13(b) of the Immigration Act
approved May 26, 1924 (8 U.S.C. section 213(b)) did not relieve the
carrier of the penalty incurred under section 16 of that act for
bringing an alien without an immigration visa (8 U.S.C. section 216).
That decision took into consideration the provisions of section 13(f) of
the said act, which declared that nothing contained in section 13 should
authorize the remission or refunding of a fine, liability to which had
accrued under section 16. The court pointed out particularly that the
fine had been incurred for bringing the alian without the visa, and that
there was nothing in the said section 13 which constituted an absolute
defense to that liability.
Section 273(a) does not set up a defense to liability under that
section which can be predicated upon a waiver of documents granted
aliens in individual cases.
In the instant case it is clearly established that the passengers
herein were not carefully interrogated prior to their embarkation as is
required by the burden placed upon them, as pointed out in our previous
decision, and there is nothing which would have manifested that the
aliens were required to have nonimmigrant visas that could not have been
ascertained by the exercise of reasonable diligence prior to the
departure from foreign territory. Therefore, a violation of section 273
of the Immigration and Nationality Act applied at the time of arrival of
the aliens and despite the waiver granted subsequent thereto, fine has
been incurred by the carrier.
On the basis of all of the foregoing, it is the conclusion of this
Board that the waiver of documentary requirements, to wit: nonimmigrant
visas, granted these alien passengers following their exclusion from
admission to the United States and subsequent to arrival, does not
constitute a defense or bar to the imposition of the administrative
penalty under section 273 of the Immigration and Nationality Act (8 U.
S.C. section 1323) and it, therefore, becomes necessary to deny the
carrier relief from liability.
Order: It is ordered that the motion for relief from liability from
imposition of penalty be and the same is hereby denied.
Misrepresentation -- Not material where mother of child born out of wedlock stated in application for visa that she had no children.
The statement of a native of Jamaica in her application for a visa that she had no children whereas, in fact, she was the mother of a child born out of wedlock is not misrepresentation of a material fact so as to invalidate her immigration visa, since disclosure of her parenthood would not in and of itself have barred the respondent from a visa under all the circumstances in the case.
CHARGES:
Warrant: Section 241(a)(1) -- Immigration and Nationality Act -- Immigration visa procured by fraud or misrepresentation.
Lodged: Section 241(a)(1) -- Immigration and Nationality Act --
Immigrant -- No immigrant visa.
Discussion: This record relates to a 41-year-old female respondent,
a native of Jamaica and subject of Great Britain. She last entered the
United States at the port of Miami, Fla., on March 18, 1950, in
possession of a reentry permit. Her first entry occurred at Miami,
Fla., on October 12, 1948, when she was admitted as a nonpreference
quota immigrant in possession of a nonpreference quota immigration visa
issued to her on September 22, 1948, at Kingston, Jamaica, by Grant K.
Smith, Vice Consul of the United States of America. It was charged in
the warrant of arrest that respondent is subject to deportation because
she was excludable at the time of her entry on March 18, 1950, in that
her immigration visa was invalid having been procured by fraud or
misrepresentation. Obviously the charge in the warrant of arrest cannot
be sustained because when respondent last entered the United States she
was in possession of a reentry permit rather than an immigration visa.
If, however, the visa which she presented at the time of her admission
on October 12, 1948, was invalid because procured by false and
misleading statements in the application therefor, her admission for
permanent residence was likewise invalid. Consequently, that admission
did not give respondent the rights of a person lawfully admitted for
permanent residence, and her last entry on March 18, 1950, to resume
residence after a visit to Jamaica could be accomplished lawfully only
upon the presentation of a valid unexpired immigration visa. If
respondent is at all deportable, therefore, it must be on the charge
lodged at the hearing. Nevertheless the main question to be determined
is whether the visa procured by the respondent on September 22, 1948, at
Kingston, Jamaica, was obtained by false and misleading statements so as
to make it invalid. (See Matter of G , A-8247543, 4 I. & N. Dec. 735,
decided by the Board of Immigration Appeals on September 2, 1952.)
In the year 1933, at the age of 20, the respondent became the mother
of a child born out of wedlock. The father, according to her testimony,
was one K S D . The child thereafter lived with respondent's
grandmother. According to the respondent's testimony her maternal
grandparents owned property and raised livestock and were in a position
to support the respondent's son. The grandmother did so until sometime
in the year 1941 when she died, her husband having predeceased her.
Thereafter, according to the testimony of the respondent and her
husband, K S D , the father of her child, whom she married at Kingston,
Jamaica, on February 1, 1950, both she and Mr. D contributed to the
child's support. According to their testimony they sent the child to
various schools and paid the tuition at those schools. During certain
periods the child was boarded out and one or both of them paid for that.
Both testified emphatically that at no time did their child become the
recipient of public funds or of any charitable assistance.
While it is not clear to what extent the respondent supported her son
her testimony is clear as to the fact that she never intended to abandon
him, that she never considered herself shed of responsibility for him,
that she never intended to disavow him as her son. Nevertheless, in
1945, when she first attempted to obtain an immigration visa at the
American Consulate in Kingston, Jamaica, she declared in her application
for registration as an intending immigrant that she had no children.
From 1945 to 1948 she persisted in her pursuit of an immigration visa,
which she finally obtained as stated above. In all papers and
applications filed with the American Consul at Kingston she reiterated
her declaration that she had no children.
Respondent has given various explanations since arriving in the
United States as to why she failed to reveal the existence of her child
when applying for an immigration visa. When she was interrogated by an
investigator of the Immigration and Naturalization Service on July 14,
1953, she said that the reason she did not reveal her child in her
application for a visa was:
I was embarrassed to say that the child was mine because going
to a strange place and the child was born out of wedlock. That is
why I said that and my grandmother was taking care of it and I
didn't have any responsibility.
Before me the respondent gave as her reason for failing to reveal the
existence of her child that she didn't know it was necessary and thought
that children born out of wedlock were not recognized in the United
States. She testified further that it never entered her mind that
revelation of the child might result in her being denied a vsia. She
claimed that she always thought that her son was well cared for, and
that by her statement that she didn't have any responsibility for the
child she did not mean that she didn't care what happened to him or that
she didn't have any legal responsibility to him. She said, "I always
had the child in mind, I never got him off my mind, I never meant that I
didn't have responsibility for him.' She testified that when she left
Jamaica the father of the child was caring for him, and that after she
reached the United States she contributed regularly to his support. The
respondent claimed that her son was always in good health and that he
was neither physically nor mentally defective to the best of her
knowledge. She said that when she came to the United States in 1948 she
had no intention of abandoning the child, and that in or about 1951 she
commenced her efforts to bring the boy to the United States. In 1949
the respondent made a return trip to Jamaica and during her stay there
married her present husband, the father of her child. The respondent's
testimony was substantially corroborated by her husband, who appeared at
the hearing as a witness. In particular, Mr. D stated that the boy
never became a charge on public funds in Jamaica.
In a memorandum dated September 8, 1953, which was accepted in
evidence by me over strenuous objection of respondent's counsel, the
consular officers of the American Consulate at Kingston, Jamaica,
British West Indies, stated that in their opinion the failure of the
respondent to reveal in her application for immigration visa that she
was the mother of an illegitimate child was a material
misrepresentation, and that her visa was one obtained by
misrepresentation of a material fact and was therefore invalid.
The law is settled that a visa obtained by fraud or misrepresentation
of a material fact is not a valid one (Matter of G , supra). While it
has been held that concealment of identity is always material (Matter of
B and P , 56152/825, 56154/758, 2, I. & N. Dec. 638), the Board of
Immigration Appeals at page 645 stated:
Confusion may result from a failure to distinguish from the
specific problem with which we are here confronted in those cases
involving a misstatement or concealment in an alien's application
for a visa or other immigration document not of his name and
identity but of some other fact concerning himself. There the
sound view and that sustained by the judicial authorities is that
a false statement in an application will not invalidate an
immigration visa or other immigration document if it appears that
the person would have been equally entitled to what he obtained
had he told the truth. In other words, only a material false
statement will invalidate the document, thereby rendering the
person deportable.
In Matter of G (supra), a case involving misrepresentation as to
financial status, the Board of Immigration Appeals said:
Whatever other tests may have been or may be applied as to
materiality, decisions are unanimous in holding that where a
misrepresentation is of a sort that would justify the refusal of a
visa, the misrepresentation is material and the visa is one
obtained by fraud or misrepresentation. If, therefore, it can be
determined upon this record that the misrepresentation as to
financial status was such a misrepresentation that under the
circumstances of this case, the American consul would have been
justified in refusing to issue the visa, we need ponder no further
and may reach a final determination. We shall therefore first
consider whether the misrepresentation in the instant case would
have justified the refusal of a visa.
As stated previously in this decision, the report from the American
Consulate at Kingston, Jamaica, was accepted in evidence over strenuous
objection of respondent's counsel on the ground that the test of
admissible evidence in administrative proceedings was whether the
particular piece of evidence was probative of the issues involved in the
case. In the view I take of this case it is not necessary to determine
at this time whether the report was properly accepted, for it is my
considered opinion that on the facts herein a knowledge of the truth
would not have justified the consul in denying the visa. Certainly the
mere fact in and of itself that respondent had been the mother of an
illegitimate child, born at least 12 years prior to her first
application for an immigration visa, could not have made any difference.
But the consul in his report insists that the misrepresentation was
material. It therefore becomes necessary to examine whether there is
any substance to his contention.
The consul in his report declared that he would not be satisfied that
the alien was not willfully concealing the existence of the child and
willfully denying the truth of his or her parenthood when she answered,
"I have no children.' The respondent has conceded that her statement
that she had no children was a false statement. The consul says further
that to afford the respondent immunity from the consequences of her
false statement on the basis of declaring it immaterial is out of
keeping with American moral concepts of solicitude for the solidarity of
the American home and the accepted principle that a child, to develop
properly, should have the close association of its parent or parents.
This contention in my opinion is a non sequitur. Holding that the
misrepresentation was not material is not a rejection of American
concepts of solidarity of the home and solicitude for children. The
holding of immateriality means merely that had respondent revealed the
truth there would nevertheless have been no legal justification for
denying her a visa. The consul's conclusion as to the significance of
holding that respondent's misrepresentation was not material is
furthermore based on an assumption not justified by the evidence before
me -- that respondent had abandoned the child and denied its existence
and was concealing its existence because she felt to do otherwise would
result in denial of her visa. The consul's observations regarding
prevailing conditions in Jamaica and regarding incidence of premarital
intercourse and bastardy and respondent's own illegitimacy, and his
conclusion that having an illegitimate child could therefore not have
been a source of embarrassment to the respondent, thus belying her
explanation, is in my opinion unwarranted. It may well be that the
average Jamaican would not be embarrassed under the same circumstances,
but to deny the possibility that the respondent might have been
embarrassed and to deny that she was, in view of her testimony, is to
shut one's eyes to the truth of human sensitivity and individuality.
The consular memorandum reports that section 15 of the Bastardy Law
of Jamaica, as amended, declares that every woman who is able to do so
and neglects to maintain her illegitimate child, whereby the child
becomes a charge on public funds, shall be punishable as an idle and
disorderly person and vagrant. Section 3 of the Immigration Act of
February 5, 1917, declares vagrants ineligible to receive visas and
excludes them from admission to the United States. The consul,
therefore, concludes that it was material for him to have known that
respondent was the mother of an illegitimate child. Apparently the
basis for this conclusion is the possibility that respondent might have
been a vagrant under the Jamaican law cited above and, therefore,
ineligible for a visa and admission into the United States. There is no
denying the possibility that the respondent was in violation of the
Jamaican Bastardy Law, but the mere possibility that she was a violator
and that she was possibly excludable from the United States and
ineligible for a visa would not justify denial of the visa to her. The
Immigration Act of 1917 declared a vagrant ineligible for a visa, not
one who might conceivably be a vagrant. Thus it was not being the
mother of an illegitimate child in and of itself which could have barred
the respondent from a visa, but an additional condition that she was
convicted of the offense of deserting her illegitimate child and
allowing him to become a charge on public funds. What was material then
was whether the respondent had abandoned her child and whether it had
become a charge on public poor funds. Respondent's failure to reveal
her parenthood undoubtedly prevented the consul from asking the next
question, but the mere fact that he was so prevented should not result
in a declaration that the visa was obtained by fraud, unless the truth
would have established a condition making denial of the visa proper.
(See Matter of B and P , 56152/825, 56154/758, 2, I. & N. Dec. 638;
Matter of B , A-4048121, 3, I. & N. Dec. 278; and Matter of T ,
A-7138424, A-7192353-4, 3, I. & N. Dec. 641.) The respondent has
testified that she never was arrested and was never convicted of any
crime or violation of law. She has testified specifically that she was
never charged with violation of the Jamaican Bastardy Law and was never
convicted of a violation of that law. Her husband has corroborated her
testimony. I see no reason to doubt the truth of her statements. In
the absence of any report by the consul that the respondent was in fact
convicted of a violation of the statute in question it must be assumed
that she was never so convicted. It is, therefore, concluded that had
the respondent revealed the truth about her parenthood it would have
been no legal ground for denying her an immigration visa.
Let it be made plain that in failing to attach fatal consequences
regarding the validity of the respondent's visa to her false statements
in her application therefor, it is not intended to condone her conduct,
but declaring respondent's conduct undesirable and even reprehensible is
a far cry from disrupting her life because of her deceit.
The report of the consul indicates that it was concluded that the
respondent abandoned her child because of the statement she made to an
investigator of the Immigration and Naturalization Service on July 14,
1953. That statement is quoted above. In the opinion of the special
inquiry officer the interpretation placed upon the respondent's language
by the consular officer is not justified. First of all, at the time the
respondent made the answer in question she had already commenced
proceedings to bring her child to the United States. Secondly, the
statement itself is not factually accurate because at the time the
respondent filed her formal application for a visa the respondent's
grandmother had been dead approximately 7 years. Just what was meant by
the statement therefore is not clear, but it is as logical to conclude
that the respondent meant that because her grandmother was taking care
of her son it wasn't necessary for her to contribute as to reach the
interpretation placed upon the respondent's words by the consular
officer. In any event, in view of all the evidence before me I am
unable to make a finding that the respondent had, either in her mind or
as a matter of fact, abandoned or disclaimed responsibility for her son.
The consular report claims that the respondent's concealment
prevented the consul from complying with section 42.307(b), (c), and (d)
of the visa regulations applying to the immigration laws and regulations
in force prior to the Immigration and Nationality Act. That regulation
prescribes certain duties of the consul when he is confronted with a
situation where one member of a family is desirous of proceeding to the
United States leaving other members of the same family behind. It is
true that respondent's failure to reveal her child prevented the consul
from performing his function under the cited regulation, but the
consul's conclusion that in invoking the regulation he would have been
justified in informally refusing an immigration visa to the respondent
appears to be based on the premise that she did not consider that she
had any responsibility for the child and the consul would have felt it
improper to facilitate the abandonment of the child. As mentioned
previously in this decision there is ample evidence that the respondent
never intended to and never did abandon her child. The special inquiry
officer therefore cannot agree with the consul's conclusion that he
would have been justified in refusing the visa to the respondent under
section 42.307 of the visa regulations.
It is my conclusion, therefore, that the respondent's
misrepresentation in her application for a visa was not material. In
view of that finding the proceedings herein should be terminated. An
order to that effect will be entered.
The respondent designated Jamaica as the place to which she wishes to
be sent if ordered deported.
Findings of Fact as to Deportability: On the basis of all of the
evidence before me I hereby make the following findings of fact:
(1) That the respondent is an alien, a native of Jamaica and
subject of Great Britain;
(2) The respondent last entered the United States on March 18,
1950, at Miami, Fla., in possession of a reentry permit;
(3) That the issuance of the reentry permit was based on the
fact that on October 12, 1948, the respondent had entered the
United States in possession of a nonpreference quota immigration
visa;
(4) That in her application for nonpreference quota immigration
visa executed and sworn to on September 22, 1948, the respondent
made a false statement of fact, that she had no children, when in
fact she was the mother of an illegitimate child then living.
Conclusions of Law as to Deportability: On the basis of the
foregoing findings of fact I make the following conclusions of law:
(1) That the respondent's false statement in her application
for immigration visa was not material;
(2) That under section 241(a)(1) of the Immigration and
Nationality Act the respondent is not subject to deportation in
that at the time of entry she was within one or more of the
classes of aliens excludable by the law existing at the time of
such entry, to wit, an immigrant not entitled under the act of May
26, 1924, to enter the United States for the reason that the
immigration visa which she presented was not valid because
procured by fraud or misrepresentation;
(3) That under section 241(a)(1) of the Immigration and
Nationality Act the respondent is not subject to deportation in
that at time of entry she was within one or more of the classes of
aliens excludable by the law existing at the time of such entry,
to wit, an immigrant not in possession of a valid immigration visa
in violation of section 13(a) of the act of May 26, 1924, and not
exempt from the presentation thereof by the said act or
regulations made thereunder.
Order: It is ordered that proceedings in this case be terminated.
Discussion: The case is before us by certification. The special
inquiry officer has ordered termination of proceedings. The facts are
fully stated in his order. We have carefully reviewed the evidence. We
find the respondent's misrepresentation in her application for a visa
was not material. The proceedings were properly ordered terminated.
Order: It is ordered that the proceedings be and the same are hereby
terminated.
Permission to reapply -- Section 212(a)(17) of Immigration and Nationality Act -- May be granted nunc pro tunc.
Permission to reapply for admission after arrest and deportation
pursuant to section 212(a)(17) of the Immigration and Nationality Act
may be granted nunc pro tunc in specialized situations, such as to
remove a ground of inadmissibility caused by inadvertent failure to
obtain such permission in advance.
Discussion: This case is before us on motion of the Assistant
Commissioner dated September 21, 1953, for reconsideration of our order
of September 15, 1953, granting the alien permission to reapply for
admission after deportation nunc pro tunc.
Appellant, a 31-year-old native and citizen of Mexico, applied for
admission to the United States for permanent residence on February 10,
1953, at El Paso, Tex. At that time he was in possession of a Mexican
passport, valid to August 26, 1954, and an immigrant visa issued at the
American consulate at Guadalajara, Jalisco, Mexico, on January 12, 1953,
and valid for 4 months. Appellant requested permission to enter in
order to join his United States citizen wife in San Juan Bautista,
Calif. Appellant stated that he wished to live with and support his
wife and year old child. According to the record, appellant was
previously deported from Calexico, Calif., on August 2, 1946, and from
San Ysidro, Calif., on October 10, 1947. He was permitted to depart
voluntarily on January 6, 1948, August 23, 1949, and November 15, 1952.
Appellant has admittedly not received permission to reapply for
admission to the United States since his last deportation in 1947.
On March 4, 1953, the special inquiry officer excluded appellant
under section 212(a)(17) of the act of 1952 as an alien who had not
received permission to reapply for admission after deportation. On
September 15, 1953, this Board concluded that appellant was clearly
excludable on this ground, but determined that the alien should be
granted permission to reapply for admission nunc pro tunc. On that
occasion the Board stated:
The appellant testified that when he applied for his
immigration visa, he was not questioned concerning whether he had
been deported but had presented to the Consul a letter he had
received from the Service granting him permission to depart
voluntarily in 1952. The appellant, when questioned by the
primary inspector, appears to have voluntarily revealed the fact
that he had been previously deported. Other than the ground of
inadmissibility arising out of his failure to be in possession of
permission to reapply, he appears to be admissible to the United
States. It appears the failure to obtain permission to reapply
was the result of inadvertence and failure to disclose the
deportation was not fraudulent. Upon full consideration of all
the circumstances in the case, in order to enable appellant to
rejoin his wife and child, we will direct the nunc pro tunc grant
of permission to reapply for admission after arrest and
deportation and thus remove the ground of inadmissibility.
The main question posed by the present motion is the propriety of the
Board's grant of permission to reapply nunc pro tunc in the instant
case. Section 212(a)(17) of the act of 1952 provides in the following
way for exclusion of aliens in certain classes as ineligible to receive
visas or excludable upon application for admission:
Aliens who have been arrested and deported, * * * unless prior
to their embarkation or reembarkation at a place outside the
United States or their attempt to be admitted from foreign
contiguous territory the Attorney General has consented to their
applying or reapplying for admission.
The Board's jurisdiction to determine the validity of grounds of
exclusion set out by special inquiry officers is found in 8 C.F.R. 6.1(
b)(1) and (d). 8 C.F.R. 236.13(b) gives the Board prospective power to
grant permission to reapply for admission within one year after
deportation. Since the Board's power and inclination to grant an alien
permission to reapply nunc pro tunc has long been the administrative
practice, this latter provision definitely does not negative the Board's
right to grant permission to reapply nunc pro tunc (Matter of P ,
56173/223, B.I.A., July 7, 1945; Matter of J S , 56172/426, B.I.A.,
1945; Matter of D , 56172/426, B.I.A., July 12, 1945; Matter of Le B ,
A-6014303, B.I.A., July 12, 1945; Matter of D , A-9659848, B.I.A., May
6, 1946; Matter of B , A-3089161, B.I.A., Jan. 5, 1948; Matter of B ,
A-3456837, B.I.A., April 29, 1949; Matter of B , 55823/840, B.I. A.,
May 26, 1949; Matter of A , A-5529505, B.I.A., July 18, 1951; Matter
of N , A-8015669, B.I.A., July 2, 1951; Matter of F , A-9502981,
B.I.A., Sept. 30, 1952; Matter of D , A-6722351, B.I.A., Sept. 25,
1952; Matter of A Z , A-7361349, B.I.A., Oct. 14, 1952; Matter of E ,
A-7842257, B.I.A., May 1, 1953; Matter of C M , T-2742033, B.I.A.,
Sept. 18, 1953, Cf., Matter of L , 56019/808, 1, I. & N. Dec. 1, 6
(Atty. Gen., 1940)). /1/
In addition, it is a basic concept of the Board's appellate
jurisdiction that it must do complete justice for the alien in a given
case and, therefore, must take any action necessary to dispose of the
particular case. For these reasons, we will affirm our prior order,
granting the alien permission to reapply for admission nunc pro tunc.
The other issue mentioned by the Assistant Commissioner relates to
appellant's possible excludability under section 212(a)(19) of the act
of 1952. /2/ Although this basis of inadmissibility was not posed by
the special inquiry officer, it was disposed of indirectly by the Board
in its order of September 15, 1953. (See above-quoted excerpt.)
Since the alien's failure to disclose his past deportation to the
consular officer occurred through ignorance or inadvertence, appellant
did not intentionally conceal these facts. Hence, any possible
exclusion under section 212(a)(19) is unfounded (Matter of G ,
1403-17906, Int. Dec. No. 611 (B.I.A., April 9, 1953); Matter of G ,
unreported, A-2510149 (B.I.A., Dec. 23, 1952); Matter of A V ,
unreported, A-6899936 (B.I.A., July 7, 1953)).
It is noted in passing that the Assistant Commissioner has cited
Matter of C , A-4852428, 3, I. & N. Dec. 662 (B.I.A., 1949), in support
of the contrary view. However, we do not feel that this decision is
controlling in the instant situation. Therefore, for the foregoing
reasons, we will affirm our prior conclusion and deny the present
motion.
Order: It is hereby ordered that the motion be denied.
(1) While these decisions occurred under the statutory predecessor of
section 212(a)(17), section 1(a) of the act of March 4, 1929, the
provisions of section 1(a) were substantially the same as the present
statute.
(2) Section 212(a) provides as follows:
Except as otherwise provided in this act, the following classes of
aliens shall be ineligible to receive visas and shall be excluded from
admission into the United States:
(19) Any alien who * * * seeks to enter the United States, by fraud,
or by willfully misrepresenting a material fact.
Prior to the enactment of the Immigration and Nationality Act of 1952
it had long been the administrative practice to grant an alien,
previously deported, permission to reapply for admission nunc pro tunc
in a few well-defined instances. The wording of section 212(a)(17) of
the act of 1952 does not differ from section 181 of the prior law. /1/
I, therefore, find no reason to reverse the administrative practice that
has grown up in these specialized situations.
The decision and order of the Board of Immigration Appeals dated
February 15, 1954, are hereby approved.
(1) EDITOR'S NOTE: 8 U.S.C. 181, 1940 edition, act of May 25, 1932,
c. 203, section 7, 47 Stat. 166.
Citizenship -- Acquisition of at birth -- Expatriation of parent -- Date of expatriation -- Reacquisition of Italian citizenship considered naturalization by operation of law -- Act of March 2, 1907.
(1) Naturalization in a foreign state within the meaning of the act of March 2, 1907, need not be accomplished by a formal judicial proceeding and may occur by operation of law. Although, according to Italian law, reacquisition of Italian nationality or naturalization by operation of law occurs automatically after two years of residence in Italy, this is considered a permissive form of naturalization and does not result in loss of United States citizenship under the 1907 act unless acceptance of Italian nationality is manifested through oral or written declarations or overt acts.
(2) Where there has been a voluntary acceptance of Italian nationality, the two-year-residence period set out in article 9(3) of the Italian nationality law of June 13, 1912, marks the date of expatriation.
(3) A native and citizen of Italy, naturalized in the United States
in 1912, who returned to Italy in December 1919 and remained there until
April 13, 1948, whose acceptance of Italian naturalization has been
judicially determined, became expatriated in December 1921. Therefore,
his son, born in Italy on December 27, 1922, did not acquire United
States citizenship at birth.
Discussion: This case is before us on motion of counsel for
reconsideration of our decision of August 6, 1952. Appellant's father
was born in Italy and became a naturalized United States citizen at
Duluth, Minn., on February 15, 1902. In December 1919, appellant's
father returned to Italy, where he remained until April 13, 1948. In
1921, the father reacquired Italian nationality by virtue of article 9(
3) of the Italian nationality law of June 13, 1912.
Appellant was born in Italy on December 27, 1922. Appellant applied
for admission to the United States as a citizen on August 17, 1951, at
Buffalo, N.Y., and was excluded by a board of special inquiry as an
alien not in possession of a valid visa (sec. 13(a)(1), act of 1924).
The board of special inquiry concluded that appellant had not acquired
United States citizenship at birth as a result of his father's loss of
United States nationality prior to the date of his birth. This
determination was subsequently affirmed by the Board on August 6, 1952.
Counsel contends that reacquisition of prior Italian nationality is
not naturalization under the act of March 2, 1907. This statute
provides as follows:
Section 2. -- That any American citizen shall be deemed to have
expatriated himself when he had been naturalized in any foreign
state in conformity with its laws, or when he has taken an oath of
allegiance to any foreign state. (8 U.S.C. 17; 34 Stat. 1228.)
Naturalization has been defined as the raising of an alien to the
rank of citizen and the clothing of this alien with the privileges of
citizenship (Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135 (1892); In
re Bishop, 26 F.(2d) 148 (W.D. Wash., 1927); United States v.
Harbanuk, 62 F.(2d) 759 (C. C. A. 2, 1933); In re Martinez, 73 F.Supp.
101 (D.C., W.D. Pa., 1947)). Clearly, naturalization which conforms
with the terms of the 1907 act need not be accomplished by a formal
judicial proceeding and may occur automatically by operation of law, as
in the present case /1/ (Savorgnan v. United States, 338 U.S. 491
(1950)).
Although according to Italian law reacquisition of Italian
nationality or naturalization by operation of law occurs automatically
after 2 years of residence in Italy, this is considered a permissive
form of naturalization by the United States Government. Loss of United
States citizenship under the act of 1907 does not result unless
acceptance of Italian nationality is manifested through oral or written
declarations or overt acts. However, the 2-year residence period, set
out in article 9(3) of the Italian nationality law of June 13, 1912,
marks the date of expatriation (Matter of R , A-7197985, B.I.A., June
26, 1953, Int. Dec. No. 608, limiting Matter of V , VP-372844, 3, I. &
N. Dec. 671 (B.I.A., 1949)).
In order for expatriation to occur under the above test, appellant's
father must have been naturalized in Italy by operation of law and have
manifested his acceptance of this naturalization by overt acts. The
former occurred, for the father clearly reacquired Italian nationality
under article 9 of the law of June 13, 1912. As to the latter, the
father's acceptance of Italian naturalization has been judicially
determined (Mastrocola v. Acheson, 105 F.Supp. 580 (S.D.N.Y., 1952)).
Hence, since appellant's father was not a United States citizen on
December 27, 1922, appellant did not acquire United States citizenship
at birth. For this reason, appellant is not entitled to admission as a
United States citizen and the present motion is accordingly denied.
Order: It is hereby ordered that the motion be denied.
(1) 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 acquisition of foreign citizenship.
Subversive -- E.A.M., Greece -- Suspension of deportation not granted to E.A.M. member.
In view of respondent's membership in E.A.M. in Greece from 1942 to April 1945 and the relationship between the Communist Party and the E. A.M., the grant of suspension of deportation is not warranted.
CHARGE:
Warrant: Act of 1924 -- Remained longer -- student.
Discussion: This case is before us on appeal from an order entered
by the special inquiry officer on May 13, 1953, denying suspension of
deportation but granting voluntary departure with the provision that if
the alien fails to depart when and as required he is to be deported from
the United States on the charge contained in the warrant of arrest. The
appeal is directed to the denial of suspension of deportation.
The respondent is a 32-year-old married male, a native and citizen of
Greece. His only entry into the United States occurred at the port of
New York on September 27, 1946, when he was admitted as a student until
June 2, 1947. He was last granted an extension of stay until February
12, 1950. Deportability on the charge contained in the warrant of
arrest is established.
The respondent's wife, to whom he was married in December 1948, is a
native-born citizen of the United States. They have two children, 3 and
2 years of age, both of whom were born in Texas. Respondent predicates
his application for suspension of deportation on serious economic
detriment to his citizen wife and two minor citizen children. He
received a Bachelor of Business Administration degree from the
University of Houston in June 1951. He is now employed as a life
insurance salesman and earns approximately $75 a week. His assets
amount to about $4,050. Respondent stated that before coming to the
United States he had belonged to a Greek organization known as E.A.M.
He further stated that these initials stand for Ethnikon
Apeleftherotikon Matopom and that it means National Liberation Front.
He said that this organization stood for the liberation and accumulation
of information which was passed over to the Allies but that after
liberation had turned into a political group with rather strong
communistic influence. He related that after he left his native
Kastron, Limnos, Greece, about April 1945 he terminated his membership
in the E.A.M. He testified that he ceased being a member by the change
of residence from Limnos to Athens and by not getting in touch with or
doing anything for the organization. He asserted that he stopped being
a member of the E.A.M. because of its political tendencies toward
Communism. He said that the Communist Party "dominated the E.A.M. all
along and we didn't realize it.'
Respondent testified that his parents and three sisters reside in his
native village in Greece. He stated that his eldest sister is married
and that her husband, A N , belonged to the Communist Party but that he
understands that A N has renounced it. He admitted that N had discussed
Communism and its principles with him and had asked him to join the
Communist Party. To the question "Did you ever join the Communist Party
of Greece?' respondent replied, "That's something I don't know. They
had no rituals or ceremonies. I could be considered as a member of the
Communist Party. E.A.M. and the Communist Party were so badly linked
together we didn't know where we belonged.'
Respondent testified that he joined the Epon organization about 1942
and that Epon was the youth organization of the E.A.M. He stated that
his brother-in-law asked him to join Epon and that he remained in Epon
"all along' and was representing the "youth' in the E.A.M. He said that
he does not have any of the membership cards in his possession as he
threw them away. He admitted having been a member of the Epon and
E.A.M. organizations of Greece and that these organizations were
affiliated with the Communist Party. He further admitted that he was
considered a member of the Communist Party of Greece and that he
considered himself to be a member of that party for about 2 or 3 months
until he broke off from them.
Respondent asserted that he has not contacted any member of the
Communist Party or its affiliates in the United States since his arrival
in this country. He further asserted that he has as much hate as any
American for the Communist Party today. He said "I fully understand
their destructive program because I got a glimpse of the inside. I am
willing to do anything to prove that.'
Counsel urges that at its inception the E.A.M. was a patriotic
liberation movement. One of the sources of material quoted in part by
counsel is a book called The Greek Dilemma by William Hardy McNeill,
published by J. B. Lippincott Company, and copyrighted in 1947.
According to counsel, on page 90 of his book, Mr. McNeill says:
The energy and enthusiasm mobilized by E.A.M. was tremendous.
Most of its members were inspired by honest and lofty motives and
most profoundly believed in the righteousness of their cause. Yet
despite their good intentions E.A.M. began to undergo a
complicated transformation and degeneration in the months after
the summer of 1943. Patriotism and self-sacrifice, high
enthusiasm and warm social idealism, all came to serve an
intolerant, ruthless and power-hungry political machine which by
its excesses, helped to create an irreconciliable opposition to
itself and to bring on the miseries of civil war.
We note from this quote that according to Mr. McNeill the
transformation and degeneration of the E.A.M. commenced in 1943. The
record shows that respondent's membership in the E.A.M. did not
terminate at about the time of this "transformation and degeneration'
but that although Greece was liberated in the latter part of 1944,
respondent remained a member until his departure from Limnos in April
1945 and that he considered himself a member of the Communist Party for
about two or three months.
In view of respondent's membership in the E.A.M. in Greece and the
relationship between the Communist Party and the E.A.M., we do not feel
that suspension of deportation is warranted in the instant case. After
due consideration of the record and representations made, we believe
that in being granted voluntary departure, the respondent has been given
the maximum relief justified in this case. Consequently, the appeal
will be dismissed.
Order: It is ordered that the appeal be and the same is hereby
dismissed.
Excludable classes -- Admission of acts constituting essential elements of crime -- Section 212(a)(9) of Immigration and Nationality Act.
The provision in section 212(a)(9) of the Immigration and Nationality Act which excludes "aliens who admit committing acts which constitute the essential elements of such a crime' (that is, a crime involving moral turpitude), is applicable to offenses committed prior to as well as those committed after the effective date of the Immigration and Nationality Act.
EXCLUDED:
Section 212(a)(9) -- Act of 1952 -- Admits committing acts which
constitute essential elements of crime involving moral turpitude --
Theft, in Mexico.
Discussion: The case comes forward on appeal from the order dated
July 16, 1953, of the special inquiry officer finding the appellant
inadmissible on the ground stated above.
The appellant, a native and citizen of Mexico, applied at the port of
San Ysidro, Calif., on July 9, 1953, for admission for permanent
residence. He presented a valid passport and an unexpired nonquota
immigrant visa issued by the American Vice Consul at Torreon, Coahuila,
Mexico, on June 10, 1953.
The acts upon which the finding of inadmissibility is predicated
occurred about January 1947 in Tijuana, Mexico. According to the
testimony of the appellant, he admitted removing an unexpired
border-crossing identification card and a birth certificate from the
coat pocket of another person without the consent of the owner of the
card and admits that it was his intention at that time to use such card
to gain admission into the United States; and about 2 months afterward
the appellant admitted that he did use the border-crossing
identification card to enter the United States. The appropriate Mexican
statute defining the offense of theft was read and explained to the
alien. /1/ On December 16, 1952, we had occasion to consider this
matter in connection with a deportation proceeding against this same
alien and therein we stated that a careful examination of the entire
record failed to show that the alien had made a clear, voluntary and
unequivocal admission of the commission of theft; and concluded, that
in the absence of a clear, voluntary and unequivocal admission of the
commission of the offense charged, it was found that the criminal charge
was not sustained.
We do not subscribe to counsel's argument that a border-crossing
identification card and a birth certificate cannot be the subject of
theft. The present exclusion proceeding has elicited no further
admissions from the appellant regarding the alleged theft other than a
purported memo prepared by the primary examining immigration officer on
July 9, 1953, to the effect that the appellant admitted to the officer
that he had stolen a border-crossing card or passport in the name of T G
, from a coat pocket in Tijuana, Mexico, such card being valid for entry
at San Diego, California, and with which the appellant entered at the
port of San Ysidro, Calif. The appellant denied that he had admitted
"stealing' such a card but did admit only that he had removed this card
from the pocket of another person and had used it. The immigration
officer who made the memo testified that the appellant admitted stealing
the card. However, the memo has not been made a part of the record and
it does not appear that this memo was the basis of the finding of
inadmissibility. Rather, it appears that the previous statements of the
appellant regarding the alleged theft which had heretofore been held to
fail to constitute a ground of inadmissibility because of the lack of
admission of this specific crime are now being used to support a charge
based upon the new ground of exclusion present in section 212(a)(9) of
the Immigration and Nationality Act of 1952 which reads as follows:
Aliens who have been convicted of a crime involving moral
turpitude (other than a purely political offense), or aliens who
admit having committed such a crime, or aliens who admit
committing acts which constitute the essential elements of such a
crime * * *. Emphasis supplied.
The underscored portion of section 212(a)(9) is new and was not
present in section 3 of the Immigration Act of 1917. The legislative
history shows that the principal purpose of the change was to overcome
the situation which existed under the law then in effect, where an alien
admits facts in an examination which clearly indicate the commission of
a crime, but does not actually "admit having committed' such a crime as
required by the law. /2/ While this additional language removes the
requirement that the alien must admit the legal conclusion that he has
in fact committed the specific crime, the other requirements set forth
in Matter of J , 56038/559, 2, I. & N. Dec. 285 (1945) still prevail.
/3/
Adverting once more to section 212(a)(9), set out above, we note a
difference in the tense of the words used. The first part refers to
aliens who have been convicted of a crime involving moral turpitude;
the next phrase refers to aliens who admit having committed such a
crime; while the third phrase under which the present ground of
inadmissibility is sought, refers to aliens who admit committing acts
which constitute the essential elements of such a crime. The last
phrase contains words in the present tense in contrast to the other two
preceding phrases. The use of the present tense is significant and a
necessary conclusion is that such admission relating to the new ground
of inadmissibility as to admitting committing acts which constitute the
essential elements of a crime involving moral turpitude must occur in a
proceeding under the Immigration and Nationality Act of 1952. The
prospective application of this phrase or clause would appear to find
added support by comparison with section 241(d) of the Immigration and
Nationality Act which makes the grounds of deportability enumerated in
section 241(a) applicable (except as otherwise provided) to all aliens
belonging to any of the enumerated classes notwithstanding that any such
alien entered the United States prior to the date of enactment of the
act or that the facts by reason of which any such alien belongs to any
of the classes so enumerated occurred prior to the date of the enactment
of the act. In other words, the retrospective effect is specifically
set forth in section 241(a).
In addition, we note a difference in the language of the second and
third clauses of section 212(a)(9) of the Immigration and Nationality
Act. Thus, the second clause refers to aliens who admit having
committed, whereas the third clause refers to aliens who admit
committing acts which constitute the essential elements of a crime
involving moral turpitude. The use of the present tense in the third
clause both as to admission and commission leads to the conclusion that
not only the admission but the commission of the acts which constitute
the essential elements of a crime involving moral turpitude must occur
after the enactment of the Immigration and Nationality Act. These
requirements are not present in the instant case and accordingly the
appeal will be sustained.
Order: It is ordered that the appeal be and the same is hereby
sustained.
(1) The one who takes something belonging to another without right
and without the consent of the person who may dispose of it in
accordance with the law.
(2) Senate Report No. 1515 (81st Cong., 2d sess.), Report of the
Committee on the Judiciary pursuant to Senate Resolution 137, pp. 353
354.
(3) Matter of E V , 1610-9315, 5, I. & N. Dec. 194 (April 6, 1953).
Discussion: On the 19th day of October 1953, the Board of
Immigration Appeals entered an order sustaining the appeal from the
decision of the special inquiry officer who had concluded that the
appellant was excludable from the United States on the ground shown
above.
Appellant first entered the United States on or about January 2,
1921, at El Paso, Tex. Subsequently, on December 11, 1933, his status
was adjusted through registry proceedings whereby record of his lawful
entry for permanent residence as of January 2, 1921, was created. He
lived in the United States continuously from 1921 to sometime in 1943
when he departed to Mexico. He thereafter applied to reenter the United
States on December 27, 1945, and after hearing was excluded on February
14, 1946. He then entered the United States on March 12, 1947, was made
the subject of deportation proceedings and the hearings in connection
therewith were held in March 1951. On March 21, 1951, he was found to
be deportable from the United States by the hearing officer and, upon
appeal, on December 16, 1952, the Board of Immigration Appeals found him
to be deportable under the Immigration Act of May 26, 1924, in that at
the time of entry he was an immigrant not in possession of a valid
immigration visa. The privilege of voluntary departure in lieu of
deportation was afforded him and he departed from the United States and
after obtaining an immigrant visa, applied for admission at San Ysidro
on July 9, 1953, at which time the present proceedings were instituted.
At the hearings in March 1951, appellant confirmed prior testimony to
the effect that sometime around January 1, 1947, in Tijuana, Mexico, he
had removed an unexpired nonresident alien's border-crossing
identification card and a birth certificate from the coat pocket of
another person without the consent of the owner, that he took such
documents for the purpose of using them to enter the United States and
that he thereafter illegally entered the United States on March 12,
1947, by using such documents. At the hearings in March 1951 the
appropriate Mexican statute defining the offense of theft was read and
explained to appellant but he did not make a clear, voluntary,
unequivocal admission of the commission of theft since he declined to
make any reply on advice of counsel, to a specific question asked in
that respect. The Board concluded that because of the absence of such a
clear admission, the charge of admission of the commission of a crime
involving moral turpitude, namely, theft, in Mexico, had not been
established.
In connection with the present exclusion hearing, the record
discloses that appellant applied for admission on July 19, 1953, and
that a memorandum was prepared by the primary examining officer of the
Service which stated that the appellant had admitted to such officer
that he had stolen the border-crossing card or passport which he had
used for his entry into the United States on March 12, 1947. The
memorandum was not presented in evidence. However, the officer
testified at the hearing and stated that the appellant had admitted to
him that he stole the document involved, and that such officer had
prepared the memorandum referred to. Appellant at the hearing denied
that he had referred to the card as being stolen but rather averred that
he had stated to the officer only that the card had been used to come to
the United States.
At the conclusion of the hearing the special inquiry officer
concluded that appellant was excludable from the United States pursuant
to the provisions of section 212(a)(9) of the Immigration and
Nationality Act in that he was an alien who admits committing acts which
constitute the essential elements of a crime involving moral turpitude,
to wit: theft. The Board in its order of October 19, 1953, sustaining
the appeal, concluded that in order for an alien to be excludable on the
charge shown above, that not only the admission but also the commission
of the acts which constitute the essential elements of the crime
involving moral turpitude must have occurred after the date of the
enactment of the Immigration and Nationality Act. It is the view of the
Service that the position taken by the Board is not tenable.
To resolve the issue involved, it is necessary that the history
relating to the enactment of the particular clause involved be
considered. The Immigration Act of 1907 provided for the exclusion of
aliens who "have been convicted of or admit having committed a felony or
other crime or misdemeanor involving moral turpitude.' In United States
v. Williams, 200 Fed. 538 (C.C.A. 2, 1912), cert. den. 232 U.S. 722, it
was contended that the clause, "admit having committed,' speaks as of
the time of the entry of the alien into this country and, consequently,
the admission must have occurred prior to the time of entry and not at
the hearing resulting in exclusion. The court stated:
While there is force in the argument made in behalf of the
relator, we cannot regard it as well founded. The purpose of the
act is to exclude aliens who have committed serious crimes in
their own countries. Congress has not deemed it expedient to give
immigration officers general power to determine questions of guilt
or innocence and has limited them to excluding such criminals as
have been convicted or admit their guilt. The admission is
treated as evidence of guilt tantamount to conviction. But we see
no reason why such evidence should be furnished by admissions made
prior to rather than after the entry of the alien into this
country and are not convinced that the language of the act
requires us to limit it. Emphasis supplied.
Thus, in this case the court held that the admission of the crime
could take place at the hearing, as well as prior to entry.
The act of 1917 provided for the exclusion of aliens who "admit
having committed' (sec. 3) and for the deportation of aliens who "admit
the commission, prior to entry' (sec. 19) of a felony or other crime or
misdemeanor involving moral turpitude. In United States ex rel. Karpay
v. Uhl, 70 F.(2d) 793 (C.A. 2, 1934), it was contended in a deportation
case that the statute required an admission prior to entry of the
commission of a crime. Again the court held that the admission could be
made at the deportation hearing and stated that the object of the
statute was to --
rid the United States of undesirable aliens and it puts in that
class, those who have committed crimes of moral turpitude prior to
entry. This is to be proved to the officials administering the
statute by conviction (if the alien "was convicted') or by his
admission (if he "admits the commission') * * * It is not the
admission but the crime previously committed which makes the alien
an undesirable. Emphasis supplied.
Thus, the court again pointed out that it was the commission of the
crime that made the alien undesirable and that the admission was only
one manner whereby the commission of the crime could be established.
The case of United States ex rel. Santarelli v. Hughes, 116 F.(2d) 613,
616 (C.A. 3, 1940) is of like import.
That an admission of the commission of a crime may be made by an
alien prior to the hearing is also well established (Howes v. Tozer, 3
F.(2d) 849, 852 (C.C.A. 1, 1925); Blumen v. Haff, 78 F.(2d) 833, 836
(C.C.A. 9, 1935)).
In connection with the present act, the Senate Committee on the
Judiciary had before it, the question of the interpretation of the
clause "or admit having committed' and discussed such clause in its
report dated April 20, 1950, Report No. 1515, 81st Cong., 2d sess., pp.
352-354. As stated by the Board of Immigration Appeals in its order, to
overcome the situation which existed under the laws then in effect,
where an alien admitted facts in an examination which clearly indicated
the commission of a crime but did not actually "admit having committed'
such a crime, there was added the new ground of exclusion, namely,
"aliens who admit committing acts which constitute the essential
elements of such a crime.' In connection therewith it was stated in the
report as follows:
It is the recommendation of the subcommittee that the exclusion
clause pertaining to crimes involving moral turpitude should be
modified to exclude aliens who have been convicted of a crime
involving moral turpitude, or aliens who admit committing acts
which constitute the essential elements of such a crime, or aliens
whose admissions are tantamount to a confession of such a crime.
The principal purpose of the change is to overcome the situation
which exists under the present law where an alien admits facts in
an examination which clearly indicate commission of such a crime,
but does not actually "admit having committed' such a crime as
required by the law.
It is apparent, therefore, that a review of the legislative history
shows the intention of Congress to enact a new ground for exclusion
similar to the previous grounds of exclusion contained in the
Immigration Acts of 1907 and 1917 to the effect that an alien was
excludable who "admit having committed' a crime involving moral
turpitude. The only distinction made by Congress in respect to the
former grounds of inadmissibility and the new ground of inadmissibility
was that the alien did not have to admit the legal conclusion that he
had committed the crime (Matter of E V , 1610-9315, 5, I. & N. Dec. 194
(April 6, 1953)).
As pointed out in the court decisions referred to above, the real
purpose of the clause was to rid the United States of undesirable
aliens. It was the commission of the crime that made the alien an
undesirable and not the admission. The admission was treated as
evidence of guilt tantamount to conviction. Similarly, it must be
concluded that in respect to the new ground of inadmissibility involved
in this case the aim of Congress was to broaden the base of
excludability as to aliens who have committed serious crimes. The
criminal acts must have occurred prior to the alien's application for
admission to the United States; and his admission of the commission of
such acts may be made at any time prior to his attempt to enter the
United States or at the hearing in connection with his application for
admission into this counry.
There is no perceivable basis for the conclusion by the Board that
the date of the enactment of the Immigration and Nationality Act
determines the effectiveness of this ground of inadmissibility. The
Service is not convinced by the reasoning of the Board in respect to the
use of the past and present tenses. The charge involved in this case
refers to aliens who "admit committing acts.' The word "committing' as
well as the word "admit' is in the present tense. Consequently, if the
reasoning of the Board is followed to a logical conclusion, in order to
be excludable on this ground, the alien must presently admit that he is
presently committing acts which constitute the essential elements of the
crime. In other words, the admission must occur while the act is being
committed. This result could not have been intended. Likewise, we do
not believe Congress intended the distinction urged by the Board.
The Board furthermore reasons that, while section 241(d) of the
Immigration and Nationality Act specifically makes the grounds of
deportability retrospective, the exclusion provisions of the act contain
no similar language as that appearing in section 241(d). In respect to
this contention, it is apparent that as to deportability such clause was
necessary; as to excludability, such clause was not necessary. In
order for an alien to be excludable from the United States, the ground
or grounds must have arisen prior to his application for admission into
the United States and, consequently, it was unnecessary to use a
retroactive clause as was done in section 241(d) with respect to grounds
for deportation.
It is evident that Congress, in enacting section 212(a)(9) of the
Immigration and Nationality Act and repealing the act of 1917 not only
wished to preserve the grounds of excludability previously set forth in
section 3 of the act of 1917, as to persons who have been convicted of
or admit having committed a felony or other crime or misdemeanor
involving moral turpitude but also to widen this area by including an
additional ground of excludability as to aliens who admit committing
acts which constitute the essential elements of such a crime. There is
nothing in the present act or the legislative history relating thereto
to show that Congress intended any hiatus in excluding these undesirable
aliens; but such would be the result, were the Board's conclusions
correct.
It is, therefore, the view of this Service that as the appellant has
admitted committing the essential elements of the crime of theft, he is
excludable under section 212(a)(9). His appeal from the excluding
decision should, therefore, have been denied.
Motion is hereby made that the Board of Immigration Appeals
reconsider and withdraw its order of October 19, 1953, and enter an
order dismissing the appeal of the alien from the excluding decision of
the special inquiry officer.
Discussion: This case is before us on motion dated October 27, 1953,
of the Assistant Commissioner requesting that we withdraw our order of
October 19, 1953, and enter an order dismissing the alien's appeal from
the excluding decision of the special inquiry officer.
We have carefully considered the matter set forth in the motion of
the Service, as well as the representations made by the alien's counsel
in the brief in opposition to the Service motion. At the time of the
exclusion, the special inquiry officer found that the alien was in
possession of a valid passport and a valid unexpired immigrant visa but
he excluded the alien under section 212(a)(9) of the Immigration and
Nationality Act on the ground that he was inadmissible as an alien who
admits committing acts which constitute the essential elements of a
crime involving moral turpitude, to wit: theft. The alleged theft was
committed about January 1, 1947, and consisted in the removal of a
nonresident alien's border-crossing identification card and a birth
certificate from the coat pocket of another individual without the
consent of the owner. In our order of December 16, 1952, we held that
the alien had not made a valid admission of the commission of theft.
The same admissions concerning the alleged commission of theft, which we
had held on December 16, 1952, did not constitute a valid admission of
the commission of the crime, were the basis upon which the special
inquiry officer concluded that the alien had admitted committing acts
which constituted the essential elements of a crime involving moral
turpitude.
While the Service contends that our interpretation of the statutory
provision, if followed to a logical conclusion, would require that the
alien must presently admit that he is presently committing acts which
constitute the essential elements of a crime involving moral turpitude
in order to be inadmissible, in our previous decision in this case we
held only that the admission of the essential elements and the
commission of the crime must occur subsequent to the effective date of
the Immigration and Nationality Act and we do not, of course, agree that
the result suggested by the Service would logically follow from our
interpretation of the statutory provision involved.
We agree with the Service that it was the intention of Congress to
broaden the area of excludability by removing the necessity of securing
the alien's admission of the legal conclusion that he had committed a
particular crime. We also agree that it was the intention of Congress
to preserve the grounds of excludability concerning criminal aliens
which had previously been set forth in section 3 of the Immigration Act
of 1917 and we do not conceive how our interpretation of the statutory
provision would create any "hiatus' in excluding undesirable aliens who
had made the necessary admission of the commission of a crime in
accordance with the provisions of section 3 of the Immigration Act of
1917. In other words, the second clause of section 212(a)(9) which
reads "or aliens who admit having committed' would constitute the basis
for exclusion of an alien who has previously or who hereafter admits the
legal conclusion that he has committed a crime involving moral
turpitude, whether the admission and/or the crime was committed before
or after December 24, 1952. Hence, it is only where reliance is placed
on the new clause added at the time the Immigration and Nationality Act
was enacted that we hold it is necessary that the admission and the
commission of the crime take place subsequent to the effective date of
the Immigration and Nationality Act.
As requested by the Service, we have carefully reconsidered our
previous decision and we are convinced that the conclusion reached at
that time is correct. Section 212(a) of the Immigration and Nationality
Act is replete with illustrations of the use of the present and past
tenses to distinguish between present matters or conditions which shall
render an alien excludable and past matters. When we consider the
obvious care which the framers of the legislation used in their
selection of tenses in section 212(a), we would not be at liberty to
ignore what we consider to be the clear intent of paragraph (9), namely,
to continue the previous legislation concerning the aliens of the
criminal class who had been excludable under the 1917 act and to add one
additional class in the future. Ordinarily, legislation is to be
considered as prospective unless an intention of making it retrospective
clearly appears. We do not find such an intention in the statutory
provision and, on the contrary, we believe the precise language used can
only be interpreted prospectively.
In order to further clarify our conclusion concerning this matter, we
consider it appropriate to compare the provision in the 1917 act with
that contained in the Immigration and Nationality Act of 1952. Section
3 of the 1917 act provides, in part, as follows:
That the following classes of aliens shall be excluded from
admission into the United States: * * * persons who have been
convicted of or admit having committed a felony or other crime or
misdemeanor involving moral turpitude; * * *. Emphasis supplied.
Section 212(a)(9) is, in part, as follows:
Except as otherwise provided in this Act, the following classes
of aliens shall be ineligible to receive visas and shall be
excluded from admission into the United States: * * * (9) Aliens
who have been convicted of a crime involving moral turpitude
(other than a purely political offense), or aliens who admit
having committed such a crime, or aliens who admit committing acts
which constitute the essential elements of such a crime; * * *.
Emphasis supplied.
We consider that it is highly significant that in the first two
clauses of section 212(a)(9), language identical with that used in
section 3 of the act of 1917 was employed indicating, in effect, that
these two provisions were to be continued in the Immigration and
Nationality Act as they had been interpreted in court decisions under
the act of 1917. However, the fact that Congress departed from the
phrase "admit having committed' in the second category and used the
phrase "admit committing acts' instead of "admit having committed acts'
clearly indicates to us that Congress did not intend that acts committed
prior to the effective date of the Immigration and Nationality Act or
admissions made prior to that date were to render an alien excludable
under the third clause in paragraph (9). Accordingly, we adhere to our
previous decision of October 19, 1953, and will direct that the Service
motion be denied.
Order: It is ordered that the motion of the Assistant Commissioner
dated October 27, 1953, be and the same is hereby denied.
The decision of the Board of Immigration Appeals in the
above-captioned case, dated May 3, 1954, was referred to the Attorney
General for review at the request of the Assistant Commissioner,
pursuant to 8 C.F.R. 6.1(h)(1)(iii).
On July 16, 1953, the alien was found excludable by the special
inquiry officer under section 212(a)(9) of the Immigration and
Nationality Act on the ground that he had admitted the commission of
acts which constituted the essential elements of a crime involving moral
turpitude, namely, theft, in Mexico. It appears from the record that on
or about January 1, 1947, the alien took from another alien's pocket the
latter's border-crossing identification card and birth certificate.
On October 19, 1953, the Board of Immigration Appeals sustained the
appeal of the alien and entered an order accordingly. On October 27,
1953, the Assistant Commissioner brought a motion before the Board
requesting that the order be withdrawn. The motion was denied in the
decision now before the Attorney General for review.
The Board has held that the admission of the commission of acts which
constitute the essential elements of a crime is not a ground for
exclusion under section 212(a)(9) of the Immigration and Nationality Act
unless both the admission and the commission took place subsequent to
the effective date of the act.
The pertinent language of section 212(a)(9) describes a category of
excludable aliens as follows:
(9) Aliens who have been convicted of a crime involving moral
turpitude (other than a purely political offense), or aliens who
admit having committed such a crime, or aliens who admit
committing acts which constitute the essential elements of such a
crime; * * *.
The provision in this section that aliens are excludable "who admit
committing acts which constitute the essential elements of such a crime'
was a new ground of exclusion. The Board has concluded that the
Congress, in using the present tense in the words "admit committing
acts,' meant to limit the provision's application to post-enactment
admissions and commissions.
Confining myself solely to the question of whether the commission
must take place subsequent to the effective date of the act, I cannot
agree with the reasoning of the Board. The words "such a crime' relate
back to the first of the two preceding phrases, which is a carryover
from the prior law and which excludes aliens "who have been convicted of
a crime involving moral turpitude.' The Board's reasoning, which rests
entirely on the change of tense in the third phrase, is inconsistent
with the Committee report, which indicates that what was intended was an
extension, or broadening, of the exclusion provisions of the prior law.
In the Report of the Committee on the Judiciary (S. R. 1515, 81st
Cong., 2d sess.), the following paragraph appears (pp. 353-4):
It is the recommendation of the subcommittee that the exclusion
clause pertaining to crimes involving moral turpitude should be
modified to exclude aliens who have been convicted of a crime
involving moral turpitude, or aliens who admit committing acts
which constitute the essential elements of such a crime, or aliens
whose admissions are tantamount to a confession of such a crime.
The principal purpose of the change is to overcome the situation
which exists under the present law where an alien admits facts in
an examination which clearly indicate commission of such a crime,
but does not actually "admit having committed' such a crime as
required by the law.
It is hard to escape the conclusion that it was the framers'
intention to recommend a means of correcting the "situation which exists
under the present law' by the addition of an exclusion clause which
would embrace aliens who admit committing acts which constitute the
essential elements of a crime involving moral turpitude.
For the foregoing reasons the decision of the Board is reversed. I
do not pass upon the Board's conclusion that the admission, apart from
the commission, must have taken place subsequent to the effective date
of the act.
Subversive -- IWO -- Knowledge of relationship between IWO and Communist Party is essential to establish deportability based on membership in the former organization.
An alien charged with deportability based on membership in a Communist front organization, in this instance the IWO, an affiliate of the Communist Party, is not deportable if he in fact did not have knowledge of the relationship of the organization to the Communist Party.
CHARGES:
Warrant: Act of 1918 -- After entry, alien member of organization that distributed printed matter advocating overthrow of United States Government by force.
Act of 1918 -- After entry, alien member of organization that distributed printed matter advocating overthrow of United States Government by force.
Act of 1918 -- After entry, alien member of organization that advocated overthrow of United States Government by force.
Lodged: Act of 1918 -- After entry, alien member of affiliate of
Communist Party of United States (IWO).
Discussion: This is an appeal from an order of the Assistant
Commissioner requiring the respondent's deportation on the lodged charge
set forth above. Deportation is ordered on the ground that the
respondent was a voluntary member of the International Workers Order
(IWO) at a time it was an affiliate of the Communist Party. We will
first discuss the lodged charge.
Four questions are raised by this appeal. (1) Is the IWO an
affiliate of the Communist Party? (2) If so, is it proper to permit an
alien to establish that during the time of membership, he did not know
of the existence of such an affiliation? (3) Does the record establish
that respondent was not aware of the affiliation? (4) If such a fact is
established, does it require a dismissal of the charge? We answer these
questions in the affirmative.
The respondent has testified under oath and denied an awareness of
the affiliation either at the time he joined or thereafter while he was
a member. Respondent claimed his membership in IWO was induced by his
desire to obtain insurance benefits; by the fact that it was the means
of becoming acquainted with prospective clients when he was desperately
attempting to establish himself as a dentist; and by the fact that it
enlarged the sphere of his social activity.
The Service contends that the evidence of record establishes that
respondent knew that Communist Party literature was distributed at IWO
meetings and that respondent had knowledge of the affiliation.
The testimony and other evidence which bears upon the question of the
affiliation between the Communist Party of the United States and the
IWO, in addition to testimony adduced during this hearing, consist by
stipulation of the testimony of witnesses and exhibits in the Matter of
D , 4, I. & N. Dec. 578. The testimony and exhibits are set forth in
such detail by the hearing officer in the instant case, and so
conclusively establish the existence of the affiliation, that their
substance need not be repeated. Reference will be made to them only
where they become an element as to whether the respondent was aware of
the existence of the affiliation.
We will now consider whether it is pertinent to inquire into the
question of the respondent's awareness of the affiliation between IWO
and the Communist Party.
Respondent's deportation by reason of his membership is based on 8
U.S.C.A. 137-3(a) (1951 Supp.). /1/ voluntary. /2/ In effect, it is
respondent's claim that his joining and continuance as a member were not
voluntary because both were induced by the willful, intentional and
official concealment by national officers of IWO of the existence of the
affiliation; so that both his consent in joining and remaining a member
were obtained by fraud and should be held to have been vitiated by the
fraud. Such an argument is legally sound. /3/ If it is established
that membership and continuance of membership resulted from the
fraudulent conduct of the national office in concealing the affiliation
and the respondent did not learn the true facts and acquiesce in them
while a member, we believe it must be found that the membership was not
"voluntary' and the lodged charge could not be sustained. It is,
therefore, proper for the respondent to establish his claim by competent
evidence. /4/
The Government does not urge that the IWO, prior to or during the
period of respondent's membership, conspicuously supported a program and
ideology hostile to the principles of the Constitution; nor that its
declaration of principles, the Constitution, bylaws, and membership book
indicate anything of a subversive character. In fact, there is evidence
that the avowed program of IWO was one which would find support from
large groups of Americans for it effected considerable positive good as
a fraternal organization by providing low cost insurance; by keeping
alive in the United States native culture of various nationality groups;
by furnishing an educational program of music, drama and sports for
youthful members and children of members; by campaigning to protect
working classes of people through social security legislation; by
assistance to union labor; by protecting civil rights and equality;
and by supporting the war effort of the United States in World War II.
/5/ The IWO appears to be an organization created, maintained and used
by the Communist Party in such a manner as to conceal the fact of
affiliation except from those who were members of the Communist Party,
and in this manner obtain the support of those who would have had no
dealings with an openly Communistic organization. (Testimony of
Government witnesses in the D case reveals that pains were taken to
conceal the fact of affiliation. Thus, Communist Party members of the
IWO National Committee met separately and at meetings closed to
committee members who were not Communist Party members; a national
officer of IWO testified that in an article he had written and published
in an IWO periodical, he had purposely left out reference to Communist
Party literature.)
Respondent was a member of IWO from about 1937 to 1947. The Service
does not contend that the respondent joined IWO in an effort to assist
the Communist Party of the United States nor that he was then aware of
the affiliation which existed. It is conceded that he joined for
insurance benefits and other social and business meetings he would make.
It appears clear from the record that the respondent, who was planning
to marry, had attempted to obtain insurance from one fraternal
organization but had been rejected on racial grounds; that when
approached to join IWO and assured there was no racial discrimination,
he welcomed the opportunity to obtain cheap insurance; make new social
friends; and obtain clients at a time when he was attempting to become
established in his profession.
The affiliation between IWO and the Communist Party is established
from the evidence of former IWO officials, all former members of the
Communist Party as to the part played by the Communist Party in secret
and conspiratorial meetings in founding and controlling IWO and from
evidence as to the actions of certain lodges among which is not included
the respondent's lodge and from printed matter of limited circulation.
No claim is made by the Service that the general membership or the
respondent had knowledge of or had reason to have knowledge of, the
secret and conspiratorial meetings or the actions of the lodges
mentioned by the witnesses or the printed matter; and the Service does
not contend that this testimony has any bearing on the question of
whether the respondent was aware of the affiliation.
If the lodged charge is to be sustained at all, it must be sustained
on the basis of evidence as to the nature of the activities of the
Sacramento IWO lodge to which the respondent belonged and his activities
generally and his activities in the lodge. We shall now consider this
evidence.
The record establishes that the respondent, a married male, a native
and last a citizen of India, entered the United States on July 2, 1910,
for permanent residence at a time when he was about 5 years of age.
Respondent testified as follows. Until 1941 and 1942, only those
persons who held insurance could be members of the organization;
subsequently, upon the payment of a dollar, persons not eligible for
insurance or the spouses of persons who had received insurance were
eligible to join as social members.
Meetings of the organization were held monthly or oftener. It was
not compulsory to attend meetings. During the early part of his
membership, respondent attended meetings; in the later period of
membership, he did not attend. Meetings were held at a hotel when the
organization was financially able to pay for a meeting room and at such
times the meetings were open to the public and notice of the meeting was
posted publicly. Other meetings were held in private homes and some
were held in the office of the respondent. The membership at the
maximum totaled about 40 and the maximum number of members who would
attend any meeting would be about 15. Some meetings were attended by as
few as 2 or 3 persons.
The major portion of the business of the meeting was devoted to the
collection of premiums for the policy and the payment of $0.25 as dues
which went to the local lodge. Other matters which were considered at
these meetings were the means of attracting new members to the
organization; the matter of attracting members to meetings; the
organization of social affairs; and arrangements for visiting the sick.
At meetings of the IWO, funds were solicited by members when unions
to which they belonged were on strike; in such event, an announcement
would be made that those who wished to contribute, could do so. At none
of the meetings which he attended were funds solicited for the Communist
Party. Respondent testified that he paid his dues and that he did not
recall the payment of any assessments. He was approached during the
period of his membership to make contributions; whether the appeal was
on behalf of IWO or a personal matter, and the nature of the appeal are
not clear.
Because of the inadequate attendance at meetings, initiations were
not held as required by the bylaws, and not all the officers who were
required by the bylaws were appointed. He could not recall that a
literature director had ever been elected or appointed. There had been
a social and educational director, whose function it was to arrange
social affairs and attract members to meetings. The educational
activities carried on concerned talks on the advantages of IWO
insurance, and discussions on helpful legislation. Respondent could not
recall that there had been any required reading of books or lectures on
any books or pamphlets at meetings.
Respondent testified that literature had been sold at IWO meetings he
had attended on from 5 to 7 occasions. He stated that these sales
occurred very infrequently and that they were permitted only either
before or after lodge meetings. The literature consisted of pamphlets
on health legislation, the fair employment practice act, and the trade
union movement. It is clear from his testimony that the sales were not
under the auspices or at the request of the lodge but were the personal
efforts of IWO members or nonmembers. He testified that none of the
money realized by these sales was turned over to him in his capacity as
financial secretary or treasurer, and that he could recall no instance
in which he had handled any phase of the distribution of literature.
The respondent was shown some 14 communistic documents which included
pamphlets issued by the Communist Party and which evidence establishes
had been circulated among certain IWO lodges (The respondent's lodge was
not mentioned in this testimony). Respondent stated that with one
exception, he had never seen any of these documents previously and that
he had never seen any of this literature sold or distributed at meetings
he had attended. He recalled having seen the Communist Manifesto but
could not recall the place where he had seen it displayed. The
respondent admitted that since some of the members who attended meetings
"probably had left-wing ideas' and that since any person coming to a
meeting was permitted to distribute literature, there was a possibility
that communistic literature could have been distributed at lodge
meetings, but he could recall no such distributions as a matter of fact.
The only type of literature that he recalls having been sold was
literature of trade union movements; IWO insurance; health problems;
and related matters. He testified that he had seen copies of the
People's Daily World in the pockets of persons at the meeting and it was
possible that copies could have been sold. It does not appear, however,
that if sale was made of these copies, the sale was desired or at the
request, or in behalf of the lodge.
Respondent stated that political questions were discussed by members
before and after meetings but that such questions were not a part of the
official agenda, and that at the meetings, there was no advocacy of
subversive doctrines or the overthrow of the Government by any means.
At none of the meetings was there anything done nor was he asked to do
anything contrary to the best interest of this Government.
Respondent's activity in the organization was as follows. About
1939, he was asked to take the job of financial secretary. He protested
that he did not desire the job and was informed that there was no one
else available and that he was merely required to obtain payments of
dues and make out a receipt therefor. Under these circumstances, he
agreed to take the job. He was elected to office and served the year.
He received monthly a receipt book from the national office showing
amounts due for local dues and premium payments on policies. At
meetings, he received payment of dues from members who would be given a
receipt, the money being turned over to the treasurer who apparently
held it until the financial secretary was ready to forward it to the
national office. He stated that if members did not come to the meetings
to pay dues and premiums, he did not go after them.
Subsequently, from about 1940 to about 1941, he held the office of
treasurer. In such capacity, he received money from members in payment
of premiums and held it until the financial secretary was ready to
forward it to the national office. He was permitted to retain a portion
of the funds for local activities and social gatherings. His
communication with the national office during this period was solely on
questions concerning insurance benefits of members.
From about 1941 to 1942, he was vice president of the lodge. As vice
president, he acted as chairman in the absence of the president. On one
such occasion he introduced speakers at a public meeting composed of
members of IWO and the general public who had been invited to attend.
There is no evidence in the record to indicate whether the persons
introduced were active Communists or actively opposed to Communism.
Whether there was more than one occasion when he introduced speakers is
not clear from the record.
In his capacity as an officer or as a member of IWO, he never turned
over any funds for the support of the Communist Party, its newspapers,
or its party press. He had no knowledge as to whether the lodge had
ever supported the Communist Party financially. He received no pay in
any of the offices held. He was never a member of a district committee.
He never attended a city or district convention of TWO or State
conventions although he had been asked to attend a district or State
convention but had refused to permit his appointment as a delegate.
During the period of his membership, there was in existence in
Sacramento one other IWO lodge. It was composed of foreign language
groups. Respondent attended several meetings of this lodge and was a
member of a liaison committee appointed to coordinate the affairs of
both lodges. This committee never met Whether it is also the same
committee to which the respondent referred when he testified he was a
member of the city committee of his lodge is not known. The duty of the
city committee and whether it had met is not shown in the record.
He could not recall whether lodge members from San Francisco had ever
visited his lodge in Sacramento but did recall that certain individuals
from the other IWO lodge in Sacramento attended meetings of his lodge.
It does not appear that he attended meetings of any IWO lodge other than
his own and those of the foreign language IWO lodge in Sacramento.
Respondent testified that sometime between 1941 and 1943, he saw
William Heikkila, Northern California District organizer of the IWO at a
public meeting in Sacramento. Respondent could not recall whether
Heikkila had attended meetings of the lodge or committee meetings in his
office or whether he had brough literature to the lodge for
distribution. He had no knowledge as to whether Heikkila was a member
of the Communist Party. The hearing officer took administrative notice
of the fact that Heikkila who was then under deportation proceedings was
charged with having been a member of the Communist Party up to 1939.
Respondent testified that sometime after he had joined, he met in
Sacramento, Calif., on one occasion, Max Bedacht, a national officer of
IWO but that he had no knowledge Bedacht was then or had ever been a
member of the Communist Party. (The record establishes that Bedacht, a
national officer of the IWO, was a member of the Communist Party.) The
respondent could not remember meeting any other national executive
officer.
Respondent testified that prior to 1939, he traveled from Sacramento
to San Francisco to attend an open mass meeting at which Earl Browder
spoke, /6/ that about 5,000 people attended; and that his main reason
in making the trip from Sacramento to San Francisco was to get a free
ride to see his girl friend. He denied having attended any other
meetings which he knew were meetings of the Communist Party.
Respondent testified that among the periodicals he had read was the
People's Daily World, and that he had been a subscriber from about 1941
or 1942 to about 1947. He stated that he had placed advertising in the
People's Daily World "a couple of times' and that he had advertised in
other local papers and on the radio. He stated that while he had heard
that the People's Daily World was the Communist Party official organ for
the West Coast, he did not know this to be so of his own knowledge and
that he did not always agree with what he found there.
Respondent testified that in the years he had read the People's Daily
World he had never read information to the effect that IWO was a
subversive organization of had been held to be such by the Government.
No evidence contradictory of his statement appears in the record. He
testified that he had no awareness that the Government of the United
States had characterized the IWO as either a communistic or
non-communistic organization. (Although there is some evidence that the
then Attorney General of the United States had characterized IWO as a
communistic organization in 1942, it does not appear that there was
unqualified formal action until November 24, 1947, when the IWO was
designated as a Communist Party organization. Such designation was
given general circulation on December 4, 1947 (13 F.R. 1471)).
Respondent terminated his membership in IWO about October 1947. He
had filed a petition for naturalization when racial barriers which had
previously stood in his way had been removed. After a delay which was
so long that it aroused his anxiety, he was given an interview on the
petition for naturalization by the Service. From this interview, he
concluded that his membership in IWO stood in the way of his
naturalization and thereupon determined to cease his association. His
dues had been paid in advance, but when they became due he did not
thereafter make payment, and after the interview did not attend
meetings. The Service recommended the denial of respondent's petition
for naturalization because of his membership in IWO, an organization the
Service alleged it would establish was affiliated with the Communist
Party of the United States and which circulated literature advocating
the overthrow of the Government of the United States by force and
violence. After the Government introduced a portion of its evidence to
establish its charges against IWO, the respondent moved for dismissal of
his petition. He gave as his reason for the withdrawal of the petition,
the fact that he had neither the time, the money, nor inclination to
defend anyone but himself (that he was without the means or facilities
for defending IWO). The court on his motion dismissed his petition
(Transcript of Naturalization Proceeding No. 3934, October 28, 1949).
Other evidence which should be considered follows. Respondent was a
Hindu at birth but had not practiced that faith because of the lack of
religious instruction in his youth. However, several months prior to
his marriage in 1939, he took instruction in the Catholic religion and
was baptized in the Catholic faith. In 1947, he took a "refresher
course.' During the entire period of his membership in IWO, he was a
practicing Catholic and his children have been brought up in that
religion. He testified that nothing he had heard at IWO meetings was
contrary to his principles as a practicing Catholic.
A letter dated December 27, 1950, from the pastor of the parish of
which the respondent is a member, makes reference to the deportation
proceeding and states that the respondent is held in high esteem by his
associates and neighbors; that the writer does not believe he is
undesirable; and that the writer believes "his loyalty to America and
American ideas is without question.'
An affidavit dated January 4, 1951, from the Director of the Catholic
Welfare Bureau makes reference to the respondent's deportation
proceedings and states that the respondent enjoys a good reputation in
Sacramento; that he was baptized a Catholic on July 15, 1938; and that
respondent has the reputation of being a good citizen in the community
and is a practicing Catholic. It is concluded that it is the writer's
feeling that if respondent associated with a subversive organization, he
joined in good faith.
Respondent was questioned concerning his failure to join Catholic
social and fraternal organizations, including those that afforded their
members insurance and protection. He stated that he had not joined
because his experience with racial discrimination had been such that he
joined no organization unless he had been asked to join, and he had not
been asked to join the organizations in question.
The only organizations of which respondent had been a member were
IWO; the B'Harat Society; the Catholic Church; the chamber of
commerce; and the retail credit association.
Respondent testified he planned to appear before a rally sponsored by
the American Committee for the Protection of the Foreign Born to discuss
his deportation problem. He stated he had no knowledge that it was a
communistic organization or had been cited as such by the Federal
Government (It was so cited in 1948 (13 F.R. 3067).) and that he used
the services of the organization because he was financially unable to
obtain the legal aid the case called for. His attorneys are paid by the
organization.
The respondent testified he had never been a member of the Communist
Party.
Respondent is a homeowner in his community and is well established in
his profession as a dentist. He married in 1939. There are three
children of the union; all are minors. His wife and children are
dependent upon him for support. He assisted in organizing a rally to
sponsor the purchase of war bonds and has purchased bonds. Report of
the Identification Division of the Federal Bureau of Investigation is
negative.
The hearing officer considers the testimony and affidavits in behalf
of respondent as being of no value in determining the issues in the
case. We differ in our evaluation.
At the deportation proceeding, five witnesses appeared on the
respondent's behalf and testified under oath and many affidavits have
been submitted on his behalf.
Witness C testified that he is a citizen of the United States and a
merchant who has lived in Sacramento since 1921. He has known the
respondent since about 1938, and has visited him on numerous occasions.
He knows other people especially in the Indian community who know
respondent; respondent's reputation in regard to nonesty and loyalty to
the United States is very good, and respondent is not thought of as a
believer in force or violence. The witness testified that he is
president of the B'Harat Society to which he has belonged since 1940;
that respondent has been a member since 1942 and is the secretary of the
organization; that the organization was formed to assist India to
obtain freedom and to better relations between the United States and
India; and that the organization follows the principle of nonviolence
advocated by Ghandi. He stated he had never heard respondent express an
opinion to the effect that force and violence must be used to obtain
freedom for India. He stated he did not know that the respondent had
belonged to IWO and that respondent had never talked to him about that
organization.
Witness L , a citizen of the United States by birth and a resident of
Sacramento for about 10 years, testified she had known the respondent
for about that length of time; that she had been employed in his office
for about 22 months starting in 1940; that she has been very friendly
with the respondent, his wife and family; that she visits in his home
about once a week; that the respondent is held in good opinion in the
community; and that she has never heard anyone say that he was a
Communist or had "wild ideas' about overthrowing the Government. She
stated that the respondent had never talked to her in such a fashion;
and that he is a good husband and a good father.
Witness E , a real estate salesman, testified that he has been a
resident of Sacramento for a little over 5 years; that he has known the
respondent for about 3 years; that among his friends, who are also
friends of the respondent, the opinion is that respondent is upright and
dependable and one who is a believer in and loyal to our form of
government. He stated that in discussions with the respondent on
political matters, nothing was revealed from which an opinion could be
formed that respondent was other than loyal.
Witness L , operator of a small hotel, an honorably discharged
veteran of World War II, and a United States citizen, testified that he
has known the respondent and his family for about 9 years and other
people who know the respondent; that the respondent is considered a man
of good character and one loyal to this form of government. This
witness lived in Sacramento from about 1923, apparently until the time
he went into service and also after he was discharged.
Witness J C , a dental laboratory technician and a United States
citizen by birth, who served honorably in World War II, testified he had
known the respondent for about 15 years; that he has an office in the
same building as the respondent and does work for him as well as for
other doctors; that he sees him almost every workday; that he knows
his wife and children, and knows many people who know the respondent.
He stated the respondent's reputation for honesty, veracity and loyalty
in the community was good. He stated that in the many discussions he
had with the respondent, he had heard nothing which would lead him to
believe that the respondent would not be loyal to this form of
government. He stated that in his conversations with respondent, he
would not consider the respondent as one who favors Communism; that the
respondent was a reader of the People's Daily World and three other
newspapers and that it was the respondent's habit to compare articles in
these papers and that the respondent showed no marked belief in the
correctness of articles in the People's Daily World.
Exhibit 6, a letter dated January 8, 1951, from a painter-contractor
who has known respondent about 10 years, reveals that the respondent is
considered scrupulously honest in his business dealings; that he had
had discussions on all types of questions with respondent but has never
heard him express any opinion which could be termed unpatriotic and that
the respondent has often expressed gratitude to this country for making
it possible for him to educate himself and establish himself in an
honorable profession. The writer stated that respondent is loyal to and
grateful for the ideals and institutions of this country.
An affidavit dated December 26, 1950, from the manager of the
Retailers Credit Association of Sacramento states that the Association
has known and has had business with the respondent over the past few
years and in all their knowledge of him, as well as dealings with him,
have found him honest, honorable, reliable and dependable. An affidavit
sworn to January 7, 1951, from a veteran of World War II states that he
has known the respondent for the past 15 years and has found him to be
above reproach in his character; that he is honest; respected and
admired by the community. The affiant avers that the respondent has
proved in many ways his loyalty to the United States and is recommended
for citizenship without hesitation.
An affidavit dated January 7, 1951, from another veteran reveals that
the affiant had known the respondent since 1937; respondent is
considered to be an outstanding citizen of the community, and one who
has shown his loyalty to the United States in action, speech and
character. The respondent is recommended for citizenship. An affidavit
from a pharmacist who has known the respondent since 1937 reveals that
he considers respondent a person of good moral character. An official
of an irrigation district has submitted an affidavit revealing that he
has known respondent for about 10 years; that he considers him of
sterling character; that he is a person who should be welcomed to
citizenship; and that he has never heard him make a critical comment
about this country, its customs, or its people.
An affidavit dated January 8, 1951, at Sacramento, Calif., from the
excutive officer of the American Legion Post 610 states that the
respondent for a period of 12 years has been the dentist and friend of
the writer and his family; that in all the time he has known the
respondent and his family, he has been of the opinion that the
respondent would make a fine American citizen if given the chance; and
that he would be proud to welcome the respondent as a fellow American
citizen.
The Service questions respondent's credibility on the ground that he
did not testify as fully on cross-examination conducted by the Service
as he did on direct examination conducted by counsel. Two matters are
cited in way of example: (1) That the respondent, a person of education
and intelligence, could not state whether or not the Communist Party
literature shown him during the proceedings was distributed at meetings
he had attended; and (2) He could not state whether or not funds given
to him during the year he acted as financial secretary represented the
proceeds from the sale of literature.
We do not believe the implication as to respondent's credibility is
justified. Respondent testified unequivocally that he had never seen
the Communist Party documents presented to him by the Service (with the
exception of the Communist Manifesto) and there had not been to his
knowledge any distribution at IWO meetings he had attended. As to the
Communist Manifesto, he admitted that he had seen it somewhere but could
not recall definitely where he had seen it. As to inability to recall
whether any portion of the funds received by him as financial secretary
were the result of sale of literature, it is noted that he testified
that he did not recall having received any such funds. Moreover, he
testified affirmatively that he had not, as financial secretary or
treasurer, received any of the money received by persons who sold
literature at meetings. His testimony must be evaluated in light of the
fact that respondent last functioned as a "money-receiving' officer
about 1940 or 1941 and the sale of literature was infrequent and not on
behalf of the lodge.
Whether the respondent is credible must be a conclusion drawn from
the record as a whole. Respondent furnished the information that he was
a member of IWO; he testified concerning his duties and attendance at
meetings; his receipt of the People's Daily World; his meetings with
the IWO national officer and organizer; and his attendance at an open
rally of the Communist Party. Such matters are not necessarily
self-serving. In addition, we must give consideration to the fact that
his reputation for truth and veracity in the community is established,
and the fact that no evidence to contradict his testimony has been
introduced.
Respondent attended an open air meeting at which Browder spoke. The
meeting was attended by about 5,000 persons. It was not shown that IWO
sponsored the meeting. The subject matters of the speeches are not
shown. To use attendance at such meeting as support for the conclusion
that the respondent was aware of the affiliation would be to utilize
suspicion as substantial evidence.
The Service does not urge, nor can it be found that the affiliation
of IWO and the Communist Party between 1940 and 1947 was a matter of
common kmowledge. The record does not establish that all local officers
necessarily had knowledge of the affiliation. The record fails to show
that the Sacramento IWO lodge, respondent's action in the lodge, or his
action generally, were such as to permit the deduction that respondent
was aware of the affiliation. There is no evidence that the respondent
spoke, wrote, or acted on behalf of the Communist Party or was made
aware of the affiliation by the action of lodge officials or national
officers. That the affiliation existed is established beyond doubt.
The national officers could, of course, have made the affiliation known
to all local officers. There is, however, no showing in this record
that such was done. Moreover, there is some evidence of the national
policy and effort to hide the fact of affiliation.
Respondent's subscription to the People's Daily World, a paper the
Service takes administrative notice is the Communist Party organ on the
West Coast, could give rise to the inference that respondent was aware
of the affiliation if the record showed that the People's Daily World
made mention of such fact or revealed such an identity in the program of
the Communist Party and that of IWO as to permit the inference of
affiliation to be drawn. But, the record does not establish the
existence of such factors. Therefore, a conclusion as to awareness
based upon the fact of subscription could be based only on assumption
and conjecture.
To draw the inference of awareness from respondent's one meeting with
Max Bedacht, a national officer of the IWO who visited respondent's
city, is to assume that Bedacht informed respondent of the affiliation
or that respondent knew of his activity as a Communist. In view of
evidence that effort was made by the national office to conceal the fact
of affiliation from those not sympathetic to Communism and the absence
of evidence that respondent was sympathetic to Communism, and in view of
respondent's testimony on this subject, such deduction is not justified.
Admittedly clandestine activities are sometime not susceptible of
direct proof in all of their ramifications and like a conspiracy may be
established only by circumstantial evidence so that what might
ordinarily be an innocent circumstance when isolated, may assume color
and significance from what has been established by direct evidence.
Direct evidence of clandestine activity, conspiracy or subversive
activity of the Sacramento lodge is, however, lacking in this record.
There is no evidence to establish that the Sacramento lodge engaged in
any activity which the membership knew was on behalf of the Communist
Party or at its instigation or not in the best interest of this
Government. Respondent testified to the contrary.
The respondent has a reputation for being loyal to the principles of
the United States; he and his family are faithful members of a religion
which is and has been unalterably and openly opposed to the principles
of Communism. He testified that he is a believer in the principles of
nonviolence and a believer in the principles of this Government. His
witnesses bear him out in his assertions. He has denied under oath an
awareness of any affiliation. We believe respondent has, under these
circumstances, successfully borne the burden of establishing his
unawareness of affiliation. The lodged charge will, therefore, not be
sustained.
Our discussion concerning the lodged charge is equally applicable to
the charges in the warrant of arrest. Since it does not appear that the
record sustains the charges by substantial and probative evidence, the
proceedings will be terminated.
Order: It is ordered that the appeal be and the same is hereby
sustained and that the proceedings be and the same are hereby
terminated.
(1) Pertinent portions follow:
Any alien who was at the time of entering the United States, or has
been at any time thereafter, a member of any one of the classes of
aliens enumerated in * * * section 137(2) of this Title, shall, upon the
warrant of the Attorney General, be taken into custody and deported * *
*
(Sec. 137(2) relates to aliens who are members of the Communist Party
of the United States or any affiliate of such Party). Section 137-3(a)
was repealed by Public Law 414, 82d Cong., 2d sess.; savings clauses
sec. 405 of Public Law 414, preserves the validity of the proceeding;
sec. 241(a)(6)(C)(v) of Public Law 414 reenacts its provisions.
(2) Public Law 14, 82d Cong.; ch. 23, 1st sess., H. R. 2399. See
also Wieman v. Updegraff, 344 U.S. 183.
(3) See Donaldson v. Read Magazine Inc., 333 U.S. 178; Nudd v.
Burrows, 91 U.S. 426; United States v. Throckmorton, 98 U.S. 61. To
rule otherwise could result in the pertinent section being declared
unconstitutional as a deprivation of due process. See Wieman v.
Updegraff, (supra), note 2. We do not question in any way the settled
rule that where an alien's membership in the Communist Party is
established, his knowledge or belief in the principles of the Communist
Party is not a pertinent matter in a deportation proceeding (Matter of S
, A-9635850, 5, I. & N. Dec. 95). Even in the case of membership in the
Communist Party, evidence that fraud practiced upon the alien resulted
in his joining an organization which he did not know was the Communist
Party would be relevant. Moreover, important distinctions exist between
membership in the Communist Party and an affiliate not openly affiliated
and justify different treatment. (See footnote 7 at p. 100 in Matter of
D , 4, I. & N. Dec. 578. D , a member of IWO, was found deportable on
the same charge lodged against respondent. D 's awareness of the
affiliate nature of IWO was spelled out from the facts that he had been
active as a national officer of IWO and his silence when called upon to
testify on this point.)
(4) The burden of establishing the allegation of fraud is of course
on the one asserting it, for fraud should be alleged and proved; it is
never presumed (United States v. Colorado Anthracite Co., 225 U.S. 219,
226).
(5) Matter of D , (supra), note 3, p. 75.
(6) There is no indication in the record that he met Browder
personally.
I disagree with the decision of the majority which reaches a
conclusion that the respondent did not know that the International
Workers Order is an affiliate of the Comunist Party and based upon such
lack of knowledge terminates the proceedings. It is my opinion that the
record establishes that the respondent did know that the International
Workers Order is an affiliate of the Communist Party, and based upon
such knowledge an order of deportation should enter. My opinion is
based upon the belief that the respondent's long membership in the
International Workers Order, the several major offices which he held
while a member, his contact with national officers of the organization
who are known Communists, and his educational background and superior
intelligence, preclude any other conclusion.
The majority raises four questions. In the second paragraph on page
one of its memorandum it answers all of these questions in the
affirmative. I disagree with the affirmative answer to question three
which is: "Does the record establish that the respondent was not aware
of the affiliation?' It is my opinion that the record does not so
establish. In fact, quite to the contrary, I believe there is no other
conclusion but that the respondent did know that the International
Workers Order is an organization affiliated with the Communist Party of
America.
The majority decision consists of 15 pages, a considerable portion of
which deals with minutia with respect to specific testimony of the
respondent. It is not my intention to discuss each phase of the
memorandum in relation with the evidence of record, although I will in
the course of this dissent refer to and take issue with certain points
which I believe are in error or which depart from well-settled
procedures of this Board.
The case of C first came to the attention of the Service in
connection with a naturalization proceeding which the majority discusses
at some length. He first applied for citizenship in 1946 but was
unsuccessful because, being an East Indian, he was then ineligible for
citizenship. He states that subsequently, upon the naturalization laws
being amended to permit citizenship to be conferred upon East Indians,
he immediately filed an application; that several months passed without
any results, and that upon inquiry he finally discovered that it was
because an investigation was being made with regard to his membership in
the International Workers Order. His petition for citizenship was
contested, and was heard in the United States District Court for the
Northern District of California before Judge Lemmon on October 28, 1949.
The majority comments upon this on page 9 of its memorandum, wherein it
states:
After the Government introduced a portion of its evidence to
establish its charges against IWO, the respondent moved for
dismissal of his petition. He gave as his reason for the
withdrawal of the petition, the fact that he had neither the time,
the money, nor inclination to defend anyone but himself. * * *
The record of the naturalization hearing is not quite so simple. The
Government during the course of the naturalization hearing presented two
witnesses with regard to the nature, purposes and aims of the
International Workers Order. One of the witnesses was one J Z K , who
testified to his membership in the Communist Party from 1919 to 1934 and
that he was a member of the International Workers Order from 1932 to
1934, and that he had been instructed so to join by the Central
Committee of the Communist Party; that the instructions were issued by
Earl Browder, then the general secretary of the Communist Party, and
that he held various offices in the International Workers Order. The
witness testified in great detail throughout C 's naturalization hearing
to the effect that the International Workers Order was but a tool of the
Communist Party and that the national officers worked closely with the
officers of the various individual lodges in order to use these lodges
to the maximum as a recruiting ground for the Communist Party.
P C also testified for the Government during the course of C 's
naturalization hearing. He stated various offices which he held in the
Communist Party and that he was a member of the International Workers
Order from January 1932 until the summer of 1933 and again from
September 1939 until the end of 1941, and that he also joined the
International Workers Order upon instructions from the Central Committee
of the Communist Party. Mr. C testified in detail with regard to the
functions of the various officers of the International Workers Order
lodges, the method of distributing literature, and the method of
transmitting dues to the national organization. Thereafter he went to
California and during 1941 he was county organizer of the Communist
Party and a member of the District Bureau of the
California-Nevada-Hawaii District. He stated that while in that
capacity he met with officers of the International Workers Order in that
area. He specifically stated that his work related to recruiting
through the International Workers Order for the Communist Party and that
he frequently contacted the officers of the International Workers Order,
sending them instructions to carry out their tasks of recruiting for the
Communist Party.
The hearing was adjourned at the conclusion of October 28, 1949, to
meet again on Monday, October 31, at which time the Government stated
that it would have numerous other witnesses to present. However, in the
interim the petitioner's counsel requested that C 's naturalization
proceeding be dismissed, and over strong objections of the Government,
the court stated that under the rules of the court it had no other
recourse except to grant the petitioner's motion.
Attention has been called to the naturalization hearing since
contained therein is the testimony of prominent Communists who were
organizers of the International Workers Order, is which they show the
manner in which the Communist Party recruited through the International
Workers Order, working almost exclusively through its officers. Since,
as pointed out in the decision of the majority, C occupied several high
offices in his lodge, it is impossible to reach any fair and logical
conclusions but that he was contacted on frequent occasions during the
10 years he was a member and in his capacity as an officer was requested
to recruit for the Communist Party.
But, apart from that, there is much in the testimony of the
respondent during the deporation hearing to support a conclusion that he
was well aware of the affiliation between the International Workers
Order and the Communist Party of America. We must remember that C is an
educated man. He had a full grammar and high school education prior to
attendance at the University of California, from which he graduated.
His background is entirely American. In fact, he does not speak
Hindustani, stating that he came here when 4 or 5 years old, was
frequently away from his brothers and sisters, and never learned to
speak the language of his native country. He was a member of the
International Workers Order in Sacramento, Calif., from 1937 to 1947.
During that time he held the positions of financial secretary, vice
president, and treasurer. He also states that upon occasion he acted as
president in the absence of that officer.
Respondent stated that throughout his membership in the International
Workers Order he subscribed to the People's Daily World, and that he
also advertised in this publication in his capacity as a dentist. In
fact, he states that he still reads this publication. It is well known
that the People's Daily World is the Communist Party's official organ of
the West Coast. He also admits that on one occasion in Sacramento he
met Max Bedacht, who is a prominent member of the Communist Party and
author of many Communist articles, and that he knew that Max Bedacht was
a national officer in the International Workers Order. He also
testified that he had attended Communist Party meetings, attending one
in San Francisco when Earl Browder was president. The verbatim record
is revealing and reads as follows:
Q. Have you ever attended any Communist Party meetings?
A. Yes, I attended a Communist Party meeting in San Francisco.
I believe it was Mr. Earl Browder came to the Breman Auditorium
here in San Francisco.
Q. Do you recall any other Communist Party meetings you
attended?
A. I don't believe I attended any others, outside of Mr.
Browder (p. 168).
The record of the hearing is lengthy, consisting of 191 pages of
testimony. The method of conducting the hearing is interesting. The
respondent had three attorneys -- Kamini K. Gupta of San Francisco,
Isidore Englander of New York, and Abner Green, also of New York.
Counsel refused to permit the respondent to be questioned, stating as
follows:
I submit to you that the proof is upon the Government, to prove
this case. The respondent is a legal resident alien and he is not
asking for any discretionary relief; therefore the burden upon
the Government, and after the Government has put in its case I
will then consider the advisability of Mr. C refuting the
testimony if the Government makes out a case. The burden is upon
the Government in the first instance.
Thereafter counsel for the respondent proceeded to question
respondent through some 77 pages of testimony.
Coming now to the memorandum of the majority, specifically to the
five witnesses who testified with regard to respondent's character, the
majority states on page 10 that
The hearing officer considers the testimony and affidavits in
behalf of the respondent as being of no value in determining the
issues in the case. We differ in our evaluation.
This is a departure from well-settled practices of this Board, which
have been invariably followed over a period of many years. Character
witnesses have in the past been accepted as just that and nothing more.
They have been permitted to testify as to the neighborhood opinion of
the respondent or appellant involved. It has long been settled that no
character witness is in a position to testify with regard to specific
instances or episodes in an alien's life, where, as in the case of these
witnesses, the contact and acquaintance was such as to preclude a
definite knowledge of the question at issue. In this case the question
at issue is whether C had a knowledge of the affiliation between the
International Workers Order and the Communist Party. None of the
witnesses were members of the International Workers Order. Apparently
none of them had ever attended any meetings of the lodge. In fact, some
of them stated that they did not even know that he was a member of the
International Workers Order. To give the testimony of these witnesses
credence on the question of whether respondent had a knowledge of the
affiliation between the International Workers Order and the Communist
Party of America is a distinct and sharp departure from the well-settled
practices of this Board with regard to the function of character
witnesses and the weight and value to be given to their testimony.
The majority also gives great weight to the fact that the respondent
is a Catholic, stating specifically on page 9 that
* * * several months prior to his marriage in 1939, he took
instruction in the Catholic religion and was baptized in the
Catholic faith. In 1947, he took a "refresher course.' During the
entire period of his membership in IWO, he was a practicing
Catholic and his children have been brought up in that religion.
The bearing this quoted statement has upon the case is unknown. Is
the majority attempting to state that because of the fact that
respondent is a Catholic, this is evidence that it would be impossible
for him to have knowledge of the affiliation between the International
Workers Order and the Communist Party? Or is it to be concluded that
the majority is inferring that because he is a Catholic we can take
judicial notice that he would have nothing to do with any organization
which in any manner has subversive tendencies? Undoubtedly we may
conclude that the Roman Catholic Church is unalterably opposed to
Communism. However, that every Catholic is likewise opposed is entirely
another question. One needs only to refer to Italy -- which is probably
the strongest of all Catholic countries, with over 99 per cent of the
population of the Roman Catholic faith, yet since World War II probably
no country outside the Iron Curtain has had a greater problem with
Communism than has had Italy. In fact, it is well known that in Italy
the balance of power between the Communists and the non-Communists is
very close. Yet no one would be so foolish as to state that the
millions in Italy who have supported the Communist Party do not contain
vast numbers of persons of the Roman Catholic faith.
In conclusion, it is true that the case for the Immigration and
Naturalization Service rests largely upon circumstantial evidence. C
has denied throughout that he had any knowledge of the affiliation
between the International Workers Order and the Communist Party. I
would like to comment in passing that his memory when being questioned
by his own counsel and upon matters favorable to him has been accurate,
concise, and definite, but when questioned by the examining officer his
testimony is replete with indefiniteness and lack of certainty. Typical
of this is his testimony on pages 170 and 171, when asked with regard to
his contact with William Heikkila, a prominent Communist, wherein the
examining officer stated:
Q. Your memory was very good yesterday, Doctor C , with
respect to many, many phases of your life and meetings you had
with people and so forth; can't you recollect and refresh your
memory a little bit now as to whether or not you attended
committee meetings with this man?
A. I can't say yes, and I can't say no.
Summing up in conclusion, the respondent is a man of 45, a college
graduate, apparently well read, who admits that he likes to discuss
politics and political questions, who joined the International Workers
Order in 1937 and remained a member thereof for 10 years. During this
time he held the offices of financial secretary, treasurer, and vice
president, and states that upon occasion he acted in the capacity of
president. In 1946 he filed a petition for naturalization which came on
for hearing in the United States District Court for the Northern
District of California on October 28, 1949. The Government opposed his
naturalization based upon his membership in the International Workers
Order. After the Government had presented two witnesses, and 162 pages
of testimony had been taken showing the nature of the International
Workers Order, and before the Government had completed its case,
respondent suddenly moved for the dismissal of his petition, giving as
his only reason that he was a poor man. Thereafter deportation
proceedings were instituted, during the course of which the Government
pointed out important offices respondent had held in his International
Workers Order lodge, his acquaintance with William Heikkila and Max
Bedacht, both prominent Communists, and the fact that he went to San
Francisco upon one occasion to attend a Communist rally where Earl
Browder spoke and where he met Earl Browder personally. It must be
remembered that 5,000 people were present at this meeting and that to be
able to meet Earl Browder at that meeting in itself carries with it
implications of more than innocent membership for the purpose of
securing insurance.
Respondent admits that he subscribed to the People's Daily World over
a period of 5 or 6 years and that he still reads the People's Daily
World, which is the official West Coast Communist publication.
Here we are not dealing with an ignorant dupe, taken advantage of by
persons of superior intelligence, but a man who is a graduate of one of
the leading colleges of California and America. With his background he
could not help but have had knowledge of those forces in this country
which advocate the overthrow of our government by force and violence.
Even if he would have had no contact whatever with the International
Workers Order it would be reasonable to presume that he would have known
of its functions and purposes. But it is preposterous to conclude that
he did not have such knowledge when we realize his membership for many
years in the International Workers Order, the high positions that he
held therein, his contact with nationally known Communists, including
Earl Browder, and his subscription over a period of years to the
People's Daily World, the official Communist West Coast publication,
which he admits he still reads.
For the reasons given in the foregoing, it is my belief that the
respondent should be ordered deported.
This matter came before the Board upon an appeal from an order of the
Assistant Commissioner of Immigration and Naturalization directing
deportation on the charge lodged against the subject hereof during the
course of the proceeding. The evidence establishes that the respondent
was a voluntary member of the International Workers Order (IWO) at a
time when that organization was an affiliate of the Communist Party.
The facts in the case are set forth in detail in the opinion of the
majority as well as in the opinion of the other dissenting member, and I
deem it unnecessary to discuss these facts again.
Termination of this proceeding by the majority of the members of the
Board is predicated upon the fact that the subject alien did not know of
the existence of the affiliation of the International Workers Order with
the Communist Party and that the record fails to establish that the
alien was aware of such affiliation.
It is conceded that the International Workers Order is an affiliate
of the Communist Party.
The subject of this proceeding was a member of the International
Workers Order, Sacramento, Calif., for a decade, from 1937 to 1947,
during which period of time he occupied the positions of financial
secretary, vice president, and treasurer of the lodge. This person
admitted that from about 1941 or 1942 until 1947 he was a subscriber to
the People's Daily World, the official Communist Party organ on the West
Coast. He advertised in the columns of that newspaper, having placed
therein his professional card as a Doctor of Dental Surgery.
The respondent is a professional man of some intellectual attainment,
being a graduate of grammar school, high school, college, and was last
graduated from the University of California. Certainly his connection
with the organization for a decade, as mentioned in the preceding
paragraph, as an officer in high positions must necessarily have placed
him in a position not only to know of the connection of the organization
with the Communist Party but also to have afforded him full opportunity
to be entirely aware of all of the connections and activities.
In addition, on one occasion he met Max Bedacht, a national officer
of the International Workers Order, and said to be a prominent member of
the Communist Party, and an author of many communistic articles. The
respondent further admitted that prior to 1939 he travelled to San
Francisco, in which city he attended an open mass meeting, among 5,000
others, at which meeting Earl Browder was a speaker.
The subject of this proceeding applied for naturalization as a
citizen of the United States, but he withdrew that application after he
became aware of part of the Government's evidence in opposition. Such
evidence pertained to the alien's connection with the International
Workers Order and its affiliation with the Communist Party
(Naturalization No. 3934).
I have carefully considered all of the evidence of record, as well as
all of the representations of counsel throughout the proceeding, and
upon evaluation of the testimony and the representations it is my
conclusion that the charge placed against the respondent during the
course of the proceeding is sustained adequately, and that the alien is
subject to deportation.
I, therefore, find it necessary to disagree respectfully with the
majority of the members of the Board and to agree with the conclusion of
the dissenting member that the evidence of record supports an order of
deportation.
Discussion: On April 17, 1951, the hearing officer entered a
decision for the deportation of respondent on the lodged charge. On May
6, 1952, this Service entered an order for the deportation of respondent
on such charge and further ordered that the case be certified to the
Board of Immigration Appeals for final decision, in accordance with the
then 8 C.F.R. 90.3(b). On the 19th day of August 1953, by majority
opinion, the Board sustained the appeal and ordered the proceedings
terminated.
In the majority opinion of the Board of Immigration Appeals, it was
concluded that the evidence of record established that the International
Workers Order (IWO) was an affiliate of the Communist Party, that
respondent without any duress became a member of the IWO and that
respondent had established his lack of knowledge of the existence of the
affiliation between the two organizations. The majority of the Board
determined that, because of respondent's unawareness of the affiliation
between the two groups, he could not be deemed to have been a voluntary
member of the International Workers Order so as to be deportable on the
lodged charge, whereas two members of the Board who filed dissenting
opinions concluded that the respondent had not established his
unawareness.
The issues raised by this motion are several, namely, (1) was
respondent unaware of the affiliation between the IWO and the Communist
Party, (2) has he sustained the burden of establishing his lack of
knowldege, and, (3) assuming that he has sustained such burden, is he
nevertheless deportable pursuant to the provisions of section 241(a)(
6)(C) as an alien who after entry had been a member of an affiliate of
the Communist Party?
Respondent is a 48 or 49-year-old married male, a native and last a
citizen of India, who has resided continuously in the United States
since his lawful admission for permanent residence on July 2, 1910. He
is an educated man, a graduate of the University of California and by
occupation, a dentist; he has never learned to speak the language of
his native country and his background is entirely American. He was a
member of the IWO in Sacramento, Calif., from 1937 to the end of 1947 or
the beginning of 1948. During that time at various periods, he held the
positions of financial secretary, treasurer and vice president. Upon
occasion he acted as president in the absence of that officer. In
addition to serving as an officer in the local branch of the IWO, of
which he was a member, he also attended several meetings of the only
other IWO lodge in Sacramento, which was composed of a foreign language
group. He was a member of a liaison committee appointed to coordinate
the affairs of both lodges although he claims that such committee did
not meet. He was also a member of the city committee of his lodge
although the record does not show what activities were performed in
behalf of such committee nor does the record establish the duties of
such committee.
From about 1941 or 1942 to sometime in 1947, at which time he
discontinued his membership in the International Workers Order, he was a
subscriber to the People's Daily World, a newspaper, which was the
Comunist Party organ on the West Coast. He placed advertising in such
newspaper and in addition, this newspaper was on display in his dental
office. He admitted that he had heard that this newspaper was the
Communist Party official organ for the West Coast. He personally met a
national officer of the IWO, one Max Bedacht who was general secretary
of the IWO and also a Communist Party member. He also stated that he
"attended a Communist Party mass meeting in San Francisco' when Earl
Browder spoke.
The majority of the Board of Immigration Appeals concedes that the
burden is upon the respondent to establish his unawareness of the
affiliation of the IWO with the Communist Party of the United States.
There is no question that such burden devolves to respondent (See Matter
of V , 3, I. & N. Dec. 671, 675; Pandolfo v. Acheson, 202 F.( 2d) 38
(C.A. 2, 1953)). The evidence of record establishes clearly that the
IWO was used by the Communist Party to indoctrinate the members of the
International Workers Order with Communist Party propaganda, and that
the various branches of the IWO were used as agents for the sale,
circulation and distribution of Communist Party literature and as a
medium to obtain financial support of the Communist Party (Matter of D ,
A-5390614, 4, I. & N. Dec. 578, pp. 70-1). Whether respondent was aware
of the affiliation between the IWO and the Communist Party is not
dependent on his knowledge that the IWO was being used as a front by the
Communist Party to hide the activities of the latter organization, but
rather on his knowledge as to whether the IWO gave, loaned or promised
support, money or anything of value for any purpose to the Communist
Party (Title I, section 3(17) of the Internal Security Act of 1950).
Contrary to the majority opinion of the Board, this Service concludes
that respondent had such knowledge.
Furthermore, it is the view of this Service that the majority of the
Board has overlooked the testimony of the Government witnesses
concerning the emphasis placed by the IWO on the distribution and sale
of literature to its members, and the manner in which such actions took
place. See pages 32 through 40 of the Matter of D , A-5390614, 4, I. &
N. Dec. 578, which discusses at length, the testimony and evidence
submitted by the Government in that case which was part of the record in
the instant case. The testimony of the Government witnesses, when
considered with the testimony of respondent, particularly his
cross-examination, supports the conclusion reached by this Service and
the members of the Board who filed dissenting opinions. A perusal of
respondent's testimony on direct examination, as contrasted with his
statements on cross-examination indicates that respondent's testimony as
a whole was evasive and contradictory. Furthermore, his testimony
corroborates the testimony and evidence of the Government witnesses as
to the sale and distribution of Communist Party literature at meetings
of the IWO lodges. Of special interest, is his testimony before the
court in his naturalization hearing when respondent testified that he
had reason to believe that there was distribution of Communist Party
literature at the meeting of the lodge to which he belonged and his
knowledge of the Communist Manifesto as being part of the literature.
It is not intended in this motion to discuss at length the testimony
of respondent since his testimony has been fully set forth in the
decision of the hearing officer and the various opinions filed by the
members of the Board. However, his testimony covering his knowledge of
the People's Daily World is herein set forth as an example of the type
of testimony he has given and on which the majority members of the Board
rely to establish his unawareness of the affiliation of the IWO and the
Communist Party of the United States. The record established that this
periodical is the West Coast organ of the Communist Party of the United
States and respondent has admitted that he had heard of such fact. On
direct examination he stated that occasionally he liked to read the
People's Daily World; on cross-examination he stated at first, that he
had never seen such periodical at the meetings he attended, then
admitted that many of the members read it and might have had copies in
their pockets; on cross-examination, he stated at first that he
subscribed to such periodical only for several years around 1941 or
1942, that he continued his subscription until about 1945 or 1946 and
finally he admitted that his subscription continued until he left the
IWO sometime around October 1947. Thus, his early testimony, would, at
first glance, seem to imply that he was not familiar with the Communist
Party periodical, whereas his later testimony establishes that he
subscribed to it for a period of 6 or 7 years. Being an educated
person, it is apparent that he was well familiar with the periodical and
the views expounded therein. It is likewise evident, that the members
of his group were familiar with it, that political discussions were held
at the meetings, at which a minimum of 7 members were present, the
quorum prescribed by the constitution and bylaws of the IWO and a
maximum of 16, as testified by respondent.
The Service is entirely in accord with the decision of the hearing
officer as to respondent's awareness of the affiliation between the IWO
and the Communist Party of the United States. It should also be noted
that the question of credibility was one particularly pertinent in
connection with the decision made by such officer, who had the alien
before him and had an opportunity to scrutinize and examine the
respondent while he was testifying on direct and cross-examination. We
are also in accord with the opinions of the dissenting members of the
Board of Immigration Appeals, particularly in connection with
respondent's awareness of the affiliation and the weight to be given to
the testimony furnished by character witnesses in behalf of respondent.
The Service, therefore, concludes that the respondent was fully
cognizant that the International Workers Order supported the Communist
Party and its doctrines. He has, therefore, failed to sustain the
burden required of him, to establish his unawareness of the affiliation
between the IWO and the Communist Party and is deportable on the lodged
charge.
The next issue to be resolved is whether respondent is deportable
under the provisions of section 241(a)(6) of the Immigration and
Nationality Act by virtue of his membership in an affiliate of the
Communist Party. In discussion of this phase, it will be assumed for
this purpose only, that respondent was unaware of the affiliation
between the two organizations. By the language used in such section and
the provisions of section 241(d) of the same act, it is clear that the
provisions of section 241(a)(6) operate retroactively to aliens who
entered the United States prior to the date of enactment of such act and
to cases in which membership occurred prior to that date.
Upon the enactment of the Internal Security Act of 1950, the Attorney
General concluded that the statute called for the exclusion from the
United States of all aliens who had been members of a proscribed
organization abroad and it was not material that the membership had
resulted from fraud, mistake, ignorance of the aims and activities of
the organization or that the membership had been of a nominal nature (97
Cong. Rec. 2369, 2370). After extended debate, in order to overcome the
position taken by the Attorney General, Congress enacted Public Law 14
(act of March 28, 1951, 82d Cong., ch. 23, 1st sess.) in which the
Attorney General was directed to provide by regulations that the terms
"members of' and "affiliated with' where used in the act of October 16,
1918, as amended by the Internal Security Act, should include only
membership or affiliation which is or was "voluntary.'
In enacting the Immigration and Nationality Act, Congress inserted
substantially the provisions of Public Law 14 in section 212(a)(28)(I)
relating to excludable aliens and in section 313(d) of the act relating
to naturalization. However, Congress made no such specific provision
with regard to "involuntary' membership in enacting the provisions
relating to the deportable classes set forth in section 241(a) of the
act. It would, therefore, appear that in view of the legislative
history concerning voluntary membership in proscribed organizations,
Congress was fully aware of the position of the Attorney General
concerning "voluntary' membership, but nevertheless made no provision in
respect thereto in connection with the deportation of aliens and
specifically provided for substantial portions of Public Law 14 to be
incorporated in connection with exclusion and naturalization only. It
cannot be concluded, therefore, that Congress simply overlooked the
question of involuntary membership in connection with the deportation of
aliens. As was stated by the court in Latva v. Nicolls, 106 F.Supp.
658, 664 (D. Mass., 1952) "only a higher court can rule that in an
omnibus bill, judicial exceptions to the letter of the law may be
created for meritorious classes of cases.'
Since the provisions of section 241(a)(6) are retroactive in effect,
it is, therefore, the conclusion of the Service that respondent is
deportable under the terms of such act by virtue of his membership in an
affiliate of the Communist Party, regardless of the contention made that
his membership was induced or continued through fraud, mistake or lack
of knowledge of the affiliation between the organizations. The record,
therefore, establishes respondent's deportability under section
241(a)(6) of the Immigration and Nationality Act.
It is noted, however, that no charge under the Immigration and
Nationality Act was lodged against respondent during the course of the
hearing. It might, therefore, be urged that since the Board had
concluded that respondent was not deportable on the present record, the
proceedings should be terminated and the question of respondent's
deportability under the Immigration and Nationality Act be determined by
the issuance of a new warrant of arrest and new proceedings. However,
in response to such an argument it has been long held that appellate
courts must give effect to changes in the applicable law occurring after
trial (United States v. The Schooner Peggy, 5 U.S. 102 (1801)). It was
likewise held that a change of law pending an administrative
determination must be followed (Ziffrin, Inc. v. United States, 318 U.S.
73 (1943)). Since under the present provisions of the Immigration and
Nationality Act deportability has been established, remanding the case
for further consideration is appropriate (Hormel v. Helvering, 312 U.S.
552. See also Martinez v. Neelly, 197 F.(2d) 462 (C.A. 7, 1952)
affirmed by the Supreme Court, 75 Sup.Ct. 345 (January 12, 1953)). It
is, therefore, the view of the Service that the respondent is deportable
under the provisions of the Immigration and Nationality Act and that the
hearing should be reopened for lodging of appropriate charge under the
new act and for such further action as is appropriate under such
circumstances in the event the Board after reconsideration does not
agree with the Service view that respondent is deportable on the present
record.
In conclusion, it is the view of the Service that respondent was
aware that the IWO gave, loaned or promised support, money or anything
of value for any purpose to the Communist Party, that consequently he
had knowledge of the affiliation between the IWO and the Communist Party
and that he is therefore deportable under the lodged charge.
Furthermore, not only is respondent deportable on the lodged charge, he
is also deportable under the provisions of section 241(a)(6) of the
Immigration and Nationality Act. Reconsideration of the case and the
entry of an order of deportation by the Board of Immigration Appeals is
therefore warranted.
Motion Is Hereby Made that the Board of Immigration Appeals
reconsider and withdraw its order of August 19, 1953, and enter an order
for the deportation of respondent on the lodged charge.
Discussion: Termination of proceedings has been ordered by this
Board (two members dissenting). The Service requests that our order be
withdrawn and the alien be ordered deported. The facts have been dealt
with in great detail previously. Briefly, deportation of the
respondent, a 49-year-old married male who has been in the United States
since his lawful admission for permanent residence 43 years ago, is
sought on the ground that from 1937 to 1947 he was a member of the
International Workers Order (IWO), an affiliate of the Communist Party.
We found that IWO was an affiliate of the Communist Party which had
created, maintained and used IWO is such a manner as to conceal its true
character and purposes. Because it was operated by the Communist Party
so as to conceal its true character, we ruled that an alien whose
deportation is sought by reason of his membership in IWO, must be given
an opportunity to prove he was unaware of the affiliation and if such
was found, deportation could not be ordered. We held that the
respondent had established he was without awareness of the affiliation.
/1/
Reconsideration of our order is requested on three grounds. First,
it is urged that the evidence of record fixes the existence of a pattern
of conduct among lodges of IWO from which it must be presumed that in
each of the some 1,800 lodges of IWO, a set course of conduct was
followed and that this presumption should establish awareness of the
affiliation.
This contention is new in that it was not previously advanced in this
case and to our knowledge has not in the past or subsequent to this case
been followed by the Service in either naturalization, exclusion or
deportation proceedings. We are now asked to draw a presumption that at
every IWO lodge there was a distribution of Communist Party literature
as an official part of the lodge meeting. The evidence upon which this
presumption is based was furnished by the Service in Matter of D ,
A-5390614, 4, I. & N. Dec. 578, and is before us by stipulation. It was
presented in Matter of D , to establish a charge that IWO distributed
Communist Party literature. It was not presented to determine what was
the procedure in the average IWO lodge. It was selected by the Service
to prove a point. This evidence consisting of testimony of former
Communist Party members clearly shows that Communist Party members were
in control of IWO on a national level; that they desired to have
Communist Party literature distributed throughout IWO lodges; and that
in some lodges at different periods from 1931 to 1942, there was a
distribution of Communist Party literature. It is noted that in each of
the lodges in question, the officers or literature director was a member
of the Communist Party; that the lodges are few in number as compared
to the total lodges in existence; and that the lodges in question were
mainly those of the larger cities. The evidence reveals that the
Communist Party heads of IWO desired that Communist Party literature be
distributed in every lodge, but there is no testimony in the record that
every officer of every lodge was a member of the Communist Party or that
every lodge of IWO distributed Communist Party literature. In fact, the
testimony reveals that one witness who saw distribution in lodges in two
areas, did not see it in a third. These factors, taken into
consideration with evidence that in IWO literature published for
national distribution, there was a conscious effort to conceal the fact
of affiliation; and the testimony that knowledge of the affiliation
varied from lodge to lodge (plus the fact that the Service has in the
past permitted the naturalization of many members who were not
officers), compel us to reject the argument.
Furthermore, even if some presumption could be drawn from the
evidence, it must vanish when competent evidence of the fact in issue
appears (Traders and General Ins. Co. v. Powell, 177 F.(2d) 660, 665
(C.A. 8)). The alien's uncontradicted testimony, self-serving as it may
be, that there was no distribution by the lodge of Communist Party
literature, is evidence which must be considered. Before it, the
presumption must vanish and may be rebutted only by substantial evidence
contradicting the alien's testimony. Such evidence is not in the record
before us.
The second contention is that the evidence of record relating to the
respondent himself is such that it must be inferred that he had an
awareness of the affiliation. For example, we are to infer that
respondent, a college graduate, must have known of the affiliation
because he read the West Coast Comunist Party daily newspaper over a
period of years. We are asked in effect to take administrative notice
that reading such a paper over a period of years would cause a person to
be aware of the affiliation. No specific articles are pointed to. No
copies of the paper are in evidence. It gives rise to some thought that
in establishing the affiliation of the Communist Party and IWO, the
Service did not produce articles from the West Coast daily, the paper we
are asked to rely upon, but produced esoteric articles such as an
English translation of a pamphlet published in 1931 and written entirely
in the Yiddish language. Further discussion is unnecessary. Our
previous order deals fully with the issue. We have previously
considered this contention carefully and found that to order deportation
on the basis of the evidence we are urged to consider, would be to act
upon suspicion and conjecture. We see no reason to change this opinion.
The Service urges that the testimony of the alien under oath insofar
as it is self-serving be disregarded because he is not a credible
witness; they are willing to stand upon his testimony where an
inference unfavorable to him is drawn. It is urged that the special
inquiry officer found the respondent to be lacking in credibility and
that we should not change a finding which is the primary function of the
special inquiry officer. While it is true that credibility is for the
special inquiry officer, in the instant case, the special inquiry
officer set forth the specific reasons why he found credibility lacking.
We carefully considered these reasons and found they were not
persuasive. It is said that respondent testified in a contradictory and
evasive manner. We found minor inconsistencies in the testimony but
nothing of an important nature and nothing which could not be expected
concerning events which happened many years ago and were not of a
lasting or important nature. We found that respondent's testimony,
although shallow on some points, was so definite and clear on material
matters that a perjury charge could readily be supported if evidence to
the contrary existed.
The issue before us is simple. It is purely a factual one. We find
that evidence presented by the Service has not refuted that advanced by
the alien to establish lack of awareness. Deportability is, therefore,
not established.
Finally, a legal issue is raised. Reopening of proceedings is
requested so that a charge may be lodged against the respondent under
section 241(a)(6) of the Immigration and Nationality Act. It is
contended that since the enactment of the Immigration and Nationality
Act, any alien is deportable by virtue of membership in an affiliate of
the Communist Party whether or not "his membership was induced or
continued through fraud, mistake or lack of knowledge of the
affiliation.' This contention has not been previously advanced by the
Service and appears inconsistent with their position which has permitted
the naturalization of aliens who have been members of IWO. Briefly, the
Service believes the following factors require its conclusion. When
Congress enacted the Immigration and Nationality Act it dropped from the
previous law language which stated that subversive membership, to be a
basis for deportation, must be voluntary. However, this language,
requiring membership to be voluntary, was utilized in regard to
provisions of the Immigration and Nationality Act relating to the
naturalization or exclusion of subversive aliens. It is concluded that
by dropping the language in question from the portion relating to
deportation of aliens, but retaining it elsewhere, Congress indicated
its desire that any person belonging to a Communist affiliate be
deported whether or not the membership was voiuntary.
The language in question (Public Law 14, 82d Cong., ch. 23, 1st
sess.) was enacted by Congress not as an amendment to any law, but as an
instruction to the then Attorney General to interpret the provisions of
the Internal Security Act of 1950 concerning membership of aliens in
subversive organizations as it had been interpreted prior to enactment
of the Internal Security Act; i. e., that membership must be voluntary
to be a basis for immigration proceedings. In enacting Public Law 14,
(supra), Congress clearly indicated that its review of administrative
and judicial decisions prior to the Internal Security Act of 1950
required membership to be voluntary and that by the enactment of the
Internal Security Act of 1950, Congress intended no change be made in
this regard (H.R. 118, 82d Cong., 1st sess. p. 2; S.R. 111, 82D Cong.,
1st sess., p. 2; 97 Cong.Rec. 2442). The clarifying language was not
law. It was a statement as to what the law had been and the
congressional explanation that what had been, should continue to be. We
know of no rule of construction which would require the mere elimination
of such explanatory language to be considered a mandate to adopt an
interpretation of law diametrically opposed to what Congress has been so
anxious to point out has been and was intended to continue to be the law
of the land. /2/
Furthermore, we believe the argument suffers from a more serious
defect. The law sets forth the path we must follow. Rules of
construction and congressional intent are guide posts along the path.
However, the road is one which may not be entered without the payment of
the toll of due process. The Service view would eliminate the toll.
The Supreme Court of the United States has but recently held that a
statute which makes the fact of membership in a Communist front
organization a bar to public employment by the State of Oklahoma is
violative of due process where the bar did not make knowledge concerning
the subversive character of the organization an element (Wieman v.
Updegraff, 344 U.S. 183, 73 Sup.Ct. 215). If the attempt to exclude an
individual from employment in one state of the union because of the fact
of membership alone in an organization which has been designated a
Communist front organization is a violation of due process, how much
more reason is there for a similar finding where an attempt is made to
deprive a legally resident alien of his right to live in the United
States because of the same fact. It is not our place to hold, nor do we
now do so, that an enactment of Congress is unconstitutional; however,
where we are faced with two possible ways, even assuming that both are
equally acceptable to common sense, we would be amiss were we not to
select that which is least likely to run afoul of constitutional
guarantees.
The motion will be denied.
Order: It is ordered that the motion be and the same is hereby
denied.
(1) The burden of establishing lack of awareness is upon an alien.
In judging the success with which he has met the burden, consideration
must be given to the fact that he is requested to prove a negative, nor
can we overlook the fact that deportation is sought of a class of aliens
who were legally admitted to the United States for permanent residence
and who, as in the instant case, may have long residence in the United
States and entirely dependent close family ties.
(2) It would but belabour the point, to discuss the anomaly which
would result if the Service contention were accepted, for it would
permit an involuntary member to be naturalized and yet in deportation
proceedings require his deportation -- to discuss the fact that the
clarifying language of Public Law 14, (supra), was not expressly made
applicable to naturalization laws existing prior to the Immigration and
Nationality Act, yet the Service interpreted the clarifying language as
requiring a finding that a favorable recommendation should be made in
naturalization proceedings if membership were regarded as involuntary
(File 56307/191, letter dated April 6, 1951, approved by the
Commissioner on April 9, 1951) -- to discuss the fact that the Attorney
General is now seeking registration of IWO under the Subversive
Activities Control Act of 1950 and that if registration is ordered an
alien member whose deportation is sought by reason of such membership,
would have an opportunity to establish that he did not previously know
or have a reasonable basis for knowing that the organization was a
Communist Front organization before registration. It would appear
illogical to deny a member of such an organization an opportunity to
establish that he was not aware that the organization was a Communist
organization because deportation proceedings were commenced prior to the
time registration of the organization was required (sec. 241(a)(6)( E),
Immigration and Nationality Act).
In our order we pointed out that we believe a vital difference exists
between membership in the Communist Party and Communist front
organization insofar as the question of awareness is concerned; this
phase of the problem is not before us and needs no further discussion.)
Memorandum of the majority of the Board denies the motion of the
Service in its entirety. Specifically it denies the contention of the
Service and the minority members of the Board that C was in a position
to know and did know that the International Workers Order and their
particular lodge thereof, of which he was a member, was an affiliate of
the Communist Party. Furthermore, it denies the request of the Service
that in any event the case be reopened in order that a ground of
deportability may be lodged under section 241(a)(6) of the Immigration
and Nationality Act.
The merits of the case on the question of whether the respondent had
a knowledge of the affiliation between the International Workers Order
and the Communist Party have already been gone into in detail by views
of my fellow-Board-member who joins me in dissenting from the decision
of the majority, and my own views have already been fully set forth.
Memorandum of the majority which denies the motion to reopen sets
forth nothing new with regard to the evidence which was not set forth in
the original memorandum of the majority.
The only remaining point to be considered is the denial of the
request of the Service that the case be reopened in order that a further
charge may be lodged under the provisions of section 241(a)(6) of the
Immigration and Nationality Act. This point is new. It has not been
previously presented to this Board by the Service. It may be true that
the majority of the Board does have definite convictions with regard to
the legal soundness of the position taken by the Service. However, to
deny the Service the right to adequately explain and present its
viewpoint where the issue is new, is in my opinion denying to the
Service adequate judicial process. Consequently, for the reasons stated
in the foregoing, it is my opinion that (1) the motion of the Service
should be granted and the decision of the majority reversed, or (2) in
the alternative the motion of the Service to reopen in order that a
ground of deportability may be lodged under the provisions of section
241(a)(6) of the Immigration and Nationality Act should be granted.
Upon the basis of all of the evidence of record, and upon
consideration of the motion filed by the Service, it is my conclusion
that the motion should be granted.
Of the many factors considered by the Board in finding that C did not
know of the relationship between the Communist Party and the
International Workers Order, notwithstanding that he was an officer in a
small local lodge of the latter organization, I find it significant that
C terminated his membership prior to December 4, 1947, the date the
International Workers Order was publicly designated as a Communist Party
organization by the Attorney General of the United States.
In agreeing with the conclusion of the Board that an alien charged
with membership in a Communist front organization is not deportable if
he in fact did not have knowledge of the relationship of the
organization to the Communist Party, I believe the observations of the
Supreme Court in Galvan v. Press, 347 U.S. 522 (1954), at page 528, are
noteworthy and confirmatory of the reasoning of the Board.
Order: The decisions and orders of the Board of Immigration Appeals,
dated August 19, 1953, and December 14, 1953, and certified to me for
review, in accordance with section 6.1(h)(1)(iii) of Title 8 of the Code
of Federal Regulations, on December 17, 1953 are hereby affirmed.
Status: Expatriation -- Native and citizen of Italy, naturalized here in 1912 -- Repatriation in Italy following residence of two years -- Expatriation by overt act manifesting acceptance of Italian nationality -- Involuntary membership in Fascist organization not regarded as such overt act.
(1) Unless there is some affirmative act, other than mere residence in Italy, manifesting voluntary acceptance of Italian nationality by a native and citizen of Italy who was naturalized in the United States but who was later reinvested with Italian nationality under Article 9( 3) of the Italian Nationality Law of 1912, there is no expatriation under section 2 of the act of March 2, 1907.
(2) Joining a Fascist organization solely for the purpose of engaging in business and obtaining food rations where necessary for such purpose is not regarded as an overt act manifesting voluntary acceptance of Italian nationality.
CHARGES:
Warrant: Act of 1924 -- Remained longer -- Visitor.
Lodged: Act of 1924 -- No immigration visa.
Discussion: This case comes forward on appeal from the order dated
April 21, 1952, of the Assistant Commissioner ordering the respondent
deported on the lodged charge.
The primary contention of counsel is that the respondent is still a
citizen by virtue of his naturalization at Rochester, N. Y., on November
26, 1912, and that he has never lost such citizenship. The hearing
officer concludes that the respondent lost his citizenship on the basis
of two letters, one dated July 26, 1948, and the other dated January 10,
1949, from the Department of State which indicate that he expatriated
himself as of July 1923 through the operation of section 2 of the act of
March 2, 1907. The hearing officer has erroneously concluded that this
expatriation was based upon that portion of section 2 of the act
approved March 2, 1907, dealing with residence abroad. However, it is
apparent that the State Department based its conclusion as to loss of
citizenship upon the first part of section 2 of the act of March 2,
1907, which provides 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 record relates to a native of Italy, 73 years old, male, who
originally entered the United States for permanent residence in 1904 and
was naturalized on November 26, 1912. He made trips to Italy from 1921
to 1926; from 1929 until 1931; and in 1938 returned to Italy for the
purpose of filing suit against a company which owned a truck which had
run over and caused the death of the respondent's son. The prior
returns to Italy were for the purpose of settling his father's estate,
and the respondent obtained extensions of his American passport and
returned on his United States passport. At the time of his last trip to
Italy in 1938, the court action in connection with his son's death
dragged on and the respondent testified that in 1939 or 1940 he wrote to
the American consul for an extension and then was forced to remain in
Italy due to the outbreak of the war. The respondent testified that he
realized that he would be in Italy for some time and in order to have an
income decided to go into business as a soap manufacturer. He testified
that it was necessary for him to obtain a license to enter such business
from the city authorities and that as an incident thereto he was
required to join the Fascist Party of Italy. He testified that such
membership was compulsory and that he remained a member until 1942. It
is not clear from the respondent's testimony whether he joined the
Fascist Party itself or some trade organization affiliated with the
Fascist Party, but in any event he testified that he took no part in the
activities of the Fascist Party and that his membership arose solely out
of the necessity of becoming a member of the trade organization and in
order to have a ration card because of the requirements imposed by the
Fascist regime in connection with industry and with the obtaining of any
employment.
On the basis of the respondent's membership in the Fascist Party, the
Department of State held that the respondent had expatriated himself by
an overt act indicating acceptance of the Italian nationality which he
reacquired in 1923 after residing in Italy for 2 years by virtue of the
operation of article 9 of the Italian law of June 13, 1912. This
holding was in accordance with the administrative view of the Department
of State to the effect that the provisions of the Italian statute
reinvesting Italian citizenship upon former nationals after returning to
Italy constituted merely a permissive form of naturalization and was of
no effect unless there was some affirmative act on the part of the
individual affected which would manifest voluntary acceptance of such
Italian nationality, and such acceptance operated to reinvest Italian
nationality under a doctrine of relation back to the period of 2 years
subsequent to the beginning of the residence in Italy. /1/
It is to be noted that the Department of State does not regard the
reinvestment of Italian nationality by residence in Italy for 2 years
under article 9(3) of the Italian law of June 13, 1912, sufficient in
itself to divest or expatriate an American national. The provisions of
the Italian statute are regarded as constituting merely a permissive
form of naturalization. Whether or not the State Department will
consider that the acquisition of Italian nationality in the manner
already indicated results in loss of American citizenship under the
provisions of the first paragraph of section 2 of the act of March 2,
1907, depends upon whether the individual manifested an acceptance of
such nationality either by a written or oral declaration or by some
other overt act. Unless there is some affirmative act on the part of
the individual that would manifest voluntary acceptance of Italian
nationality, other than his mere residence in that country for 2 years,
there is no expatriation. The Department of State takes the view that
while in all cases the burden of proof should be regarded as resting
upon the individual who alleges that he did not voluntarily accept
Italian nationality conferred upon him by article 9(3) of the Italian
law, he should nonetheless be given ample opportunity to explain his
action and only after a careful weighing of all the evidence should it
be concluded whether such individual voluntarily held himself out as an
Italian national so as to indicate acceptance retroactively to the date
of reacquisition of Italian nationality under the 1912 law. Each case
must be decided upon its own apparent merits. /2/
It is well settled, however, that an expatriation can come about only
as the result of a voluntary renunciation of abandonment of nationality
and allegiance and that a change of citizenship cannot be arbitrarily
imposed, that is, imposed without the concurrence of the citizen. /3/
Expatriation is a matter of intent on the part of the person concerned,
which must be shown by some expressed act. /4/ It, therefore, becomes
necessary to examine and determine whether the additional or overt act
indicating acceptance of Italian nationality, without which expatriation
could not have been held to have occurred, was a voluntary act on the
part of the respondent.
The respondent testified consistently throughout these proceedings
that he was forced to join the Fascist Party or Fascist organization in
order to obtain employment or participate in any industrial activities;
further, that without belonging to the Fascist trade organization he
could not have obtained a ration card. His purpose in joining this
organization about 1938 or 1939 was in order to obtain a license to
enable him to engage in the manufacture of soap because he became aware
that the law suit which he was bringing on behalf of his dead son would
take a long time and he needed to live while in Italy. The respondent
testified that he proved the compulsory nature of membership in the
Fascist Party before the American consul by producing affidavits.
Although the respondent's claim as to compulsion and his involuntariness
in joining the Fascist Party is not corroborated, neither is it
contradicted and we find his story to be both plausible and credible.
There remains for consideration the question of whether the
respondent, by joining a Fascist organization solely for the purpose of
enabling him to engage in business and earn a livelihood, performed acts
of a voluntary nature so as to result in expatriation. It is of course
conceded that any acts which resulted in expatriation must have been
done voluntarily. Membership in the Fascist Party was made the subject
of legislation in the act of October 16, 1918, as amended by the
Internal Security Act of 1950, wherein it was provided that membership
in the totalitarian party of a foreign state would render such person
inadmissible to the United States. As a result of hardship arising out
of a strict, literal interpretation of this provision as to membership,
there was enacted the act of March 28, 1951, which provided that the
Attorney General was authorized and directed to provide by regulation
that the terms "members of' and "affiliated with' where used in the act
of October 16, 1918, as amended, should include only membership or
affiliation which is or was voluntary, and should not include membership
or affiliation which is or was solely (a) when under 16 years of age,
(b) by operation of law, or (c) for purposes of obtaining employment,
food rations, or other essentials of living, and where necessary for
such purposes. Where the alien could show that he came within these
provisions of the act of March 28, 1951, he was of course held to be not
inadmissible as a voluntary member of the proscribed classes set forth
in the act of October 16, 1918, as amended.
It is clear that the respondent's action in joining a Fascist
organization for the purpose of enabling him to engage in business and
to obtain food rations and which was necessary for such purposes is
within the purview of the language used in the act of March 28, 1951,
and would, in the event he were charged with violation of the act of
October 16, 1918, as amended, in all likelihood defeat deportation.
Deportation is of course a matter of grave consequence but loss of
American citizenship is equally serious and has historically been
surrounded with equal safeguards requiring that expatriation be the
result of voluntary action. We see no reason to conclude that the
respondent's action would be less voluntary as regards his expatriation
than it would be if he were charged with deportation because of a ground
arising out of the very same act. We, therefore, hold that the
respondent's action in obtaining membership in a Fascist organization in
Italy for the purpose of engaging in business and obtaining food rations
was involuntary and did not result in loss of citizenship. We,
therefore, conclude that respondent has not lost citizenship under the
provisions of section 2 of the act of March 2, 1907, by performing a
voluntary overt act manifesting acceptance of Italian nationality
conferred upon him under article 9(3) of the Italian law of June 13,
1912.
Despite the fact that the respondent did not return to the United
States until November 18, 1948, the question of possible loss of
nationality through the provisions of section 404 of the Nationality Act
of 1940 is not involved. This conclusion is predicated upon the fact
that section 409 extended the period for loss of nationality under
section 404 until the expiration of 6 years following the date of the
approval of the act, and the evidence establishes that the respondent
attempted to obtain a United States passport and return to this country
long before that date. He is regarded as having set in motion the
appropriate machinery to effect his return to the United States but was
precluded from doing so because of delay due to conditions beyond his
control. /5/ Since we conclude that alienage has not been established,
we shall order the proceedings terminated.
Order: It is ordered that the proceedings be and the same are hereby
terminated.
(1) Hackworth, G.H., Digest of International Law, Vol. III, pp.
212-214; Matter of V , VP-372844, 3, I. & N. Dec. 671 (B.I.A., 1949).
(2) Hackworth, G.H., Digest of International Law, vol. III, p. 213.
(3) Perkins v. Elg, 307 U.S. 325; MacKenzie v. Hare, 239 U.S. 299.
(4) Shaufus v. Attorney General, 45 F.Supp. 61.
(5) Matter of C , C-192976, A-6576113, 2, I. & N. Dec. 889 (1947).
Polygamy, 1917 Act -- Visa procured by fraud and misrepresentation, 1924 Act.
(1) In order to sustain a charge under section 3 of the Immigration Act of 1917 that the individual is a polygamist, it must be shown that the alien subscribes to the historical custom or religious practice called "polygamy.' It is not sufficient that an alien should, in fact, have had more than one spouse at a given time by virtue of a second marriage undertaken without benefit of divorce. In immigration law, the terms "bigamy' and "polygamy' are neither synonymous nor interchangeable.
(2) The fact that an applicant for an immigration visa failed to volunteer information in addition to that requested in the visa application does not establish a conscious concealment or fraud and misrepresentation.
EXCLUDED:
Act of 1917 -- Polygamists (both aliens).
Act of 1917 -- Admits crime prior to entry -- Bigamy (female).
Act of 1924 -- Visas invalid as procured by fraud and misrepresentation (both aliens).
Act of 1924 -- No immigration visa (female alien).
Executive Order 8766 -- No passports (both aliens).
Discussion: These cases are before us on certification of the
Assistant Commissioner dated September 12, 1952, affirming the excluding
decision of the board of special inquiry. Appellant L R de V and
appellant C V G sought admission to the United States at Laredo, Texas,
on April 2, 1952. Appellant L was allegedly returning to a domicile in
this country, while appellant C sought permission to enter the United
States to reside permanently with his wife, appellant L . Both
appellants are natives and citizens of Mexico; appellant L is 53 years
old and appellant C is 51 years old.
According to the record, appellants were married in Houston, Tex., in
1920 and lived as husband and wife in that state until 1931. Appellants
then lived as husband and wife in Mexico from 1931 to 1935 or 1936, when
appellant C left his wife for an unknown destination. Between this
latter date and 1942, appellant L said that she occasionally heard from
her husband by letter, although she really had little knowledge of his
activities. Both appellants agree that their marriage has never been
terminated by divorce.
On March 8, 1940, appellant L went through a marriage ceremony with T
G M in Nuevo Laredo, Tamaulipas, Mexico. They lived together as husband
and wife in Mexico for a little more than 2 1/2 years. On November 17,
1942, appellant L applied at the American consulate at Nuevo Laredo for
and was issued a nonquota immigration visa (section 4( c), act of 1924)
as a Mexican. She was listed as the wife of T G , a native of Mexico.
The following day, appellant L was admitted to the United States for
permanent residence upon presentation of this visa. On that occasion,
she was accompanied by her new "husband.' Appellant L and T G lived
together as husband and wife in Texas from 1942 to 1947, when the latter
left appellant L , who said that she has only heard indirectly of the
second husband's whereabouts since that time.
On November 20, 1942, appellant C married A E in Comales, Tamaulipas,
Mexico. They lived together in Mexico until the latter's death in 1948
or 1949. On April 2, 1952, appellant C applied for a nonquota
immigration visa at the American consulate. Having recently been in
tough with appellant L by letter, appellant C stated in his application
that he was coming to join his wife, appellant L . Although appellant C
did not reveal the complications in his marital status during the past
16 or 17 years, appellant C was not specifically asked any questions
relating to these facts in the application.
The initial ground of exclusion arose under section 3 of the act of
1917. The pertinent provision of the statute reads as follows:
The following classes of aliens shall be excluded from
admission into the United States:
* * * polygamists, or persons who practice polygamy or believe
in or advocate the practice of polygamy, * * * (8 U.S.C. 136(f)).
According to the legislative history of the 1917 act (H.R. 10384,
64th Cong.), /1/ the words "polygamists' and "polygamy' refer to the
historical custom and religious practice, which the Mormons had typified
in this country /2/ until the statutory abolition of polygamy in the
latter part of the 19th century. /3/ Prior to 1882, the practice of
polygamy (plurality of wives /4/ ) was a recognized Mormon custom and a
requirement of their religious belief, with disobedience being severely
benalized under Mormon Church rules. In Reynolds v. United States, 98
U.S. 145, 25 L.Ed. 244 (1879), the Court stated:
Polygamy has always been odious among the northern and western
nations of Europe and until the establishment of the Mormon Church
was almost exclusively a feature of the life of Asiatic and
African people * * * from the earliest history of England polygamy
has been treated as an offense against society. * * *
From that day (December 8, 1788) to this we think it may safely
be said that there never has been a time in any State of the Union
when polygamy has not been an offense against society, cognizable
by the civil courts and punishable with more or less severity. In
the face of all this evidence, it is impossible to believe that
the constitutional guaranty of religious freedom was intended to
prohibit legislation in respect to this most important feature of
social life. * * *
In our opinion the statute immediately under consideration (R.
S. 5352, defining crime of bigamy for United States Territories)
is within the legislative power of Congress. It is constitutional
and valid as prescribing a rule of action for all those residing
in the Territories, and in places over which the United States
have exclusive control. This being so, the only question which
remains is, whether those who make polygamy a part of their
religion are excepted from the operation of the statute. * * *
Laws are made for the government of actions, and while they cannot
interfere with mere religious beliefs and opinions, they may with
practices. * * *
So here, as a law of the organization of society under the
exclusive dominion of the United States, it is provided that
plural marriages shall not be allowed (pp. 165, 166).
Therefore, in order to sustain this charge in the present case, it
must be shown that an alien subscribes to the historical custom or
religious practice called "polygamy.' It is not sufficient that an alien
should in fact have had more than one spouse at a given time, by virtue
of a second marriage undertaken without benefit of divorce. /5/
During the hearing, appellant C stated that he did not know the
definition of polygamy; had never before heard the word; and did not
believe in having plural wives. Appellant L was not questioned about
her knowledge of the custom of polygamy or her belief in this practice.
The term "polygamy' was mentioned to her only once in a question, in
which it was used incorrectly as a synonym for bigamy. Hence, it is
clear that neither appellant subscribes to the custom or practice of
polygamy; nor has it been established that they are polygamists. This
ground of exclusion is not sustained.
The second ground of exclusion is that appellant L admitted the
commission of the crime of bigamy in Texas prior to entry (sec. 3, act
of 1917). Appellant L said that she did not know that she had committed
a crime or was guilty of any wrongdoing when she married T G and then
lived as his wife in Mexico and Texas. In addition, section 490a was
not explained to appellant L and the record indicates that she did not
clearly understand the import of this statute.
During the hearing, counsel concedes that appellant L was guilty of
bigamy, by virtue of the provisions of section 490a of Vernon's Penal
Code of Texas, 1952, /6/ when she and her second husband lived together
as husband and wife in that State after their bigamous marriage in
Mexico. However, appellant L was not asked whether she admitted the
crime and counsel could not bind her by his concession of guilt. Hence,
the record clearly reveals that the requirements of a valid admission,
set out in Matter of J , 56038/559, 2, I. & N. Dec. 285 (Sol. Gen.,
1945), have not been fulfilled. For this reason, this ground of
exclusion is not sustained.
The third ground of exclusion is that the visas presented by
appellants are invalid, because they were procured by fraud and
misrepresentation (sec. 13(a), 14, act of 1924). In the case of
appellant C , the nonquota visa application question asked if he was
married and he said yes. The board of special inquiry held that
appellant C 's failure to disclose his complicated marital situation to
the American consul constituted concealment of facts and
misrepresentation. However, we cannot agree with the board of special
inquiry in this regard, for appellant C gave an accurate and correct
answer to the questions posed in the visa application.
The fact that he failed to volunteer additional information does not
establish a conscious concealment or fraud and misrepresentation.
Hence, this ground of exclusion is not sustained.
On the other hand, appellant L stated on her 1942 nonquota visa
application that she was married and that her husband was T G , a native
and citizen of Mexico. According to the record, appellant L was acting
in good faith in so replying, since she was under a delusion that this
second marriage was somehow valid. This view, advanced by way of
excuse, may have been induced by the apparent aura of validity, which
the second marriage ceremony gave to a relationship considered illicit
under United States legal standards. Since appellant L 's statement on
her visa application was false, we must determine whether such a
statement was material to her admission for permanent residence as a
nonquota immigrant.
In similar situations, we have previously held that such false
statements are not material (United States ex rel. Leibowitz v.
Schlotfeldt, 94 F.(2d) 263 (C.C.A. 7, 1938)). /7/ In addition, it is
noted in passing that because she was a native of Mexico, appellant L
was entitled to admission as a nonquota immigrant regardless of the
identity of her husband and thus obtained no advantage from the false
statement. Therefore, this ground of exclusion is not appropriate.
The board of special inquiry has also excluded appellant L as an
alien failing to present a valid visa when seeking entry into the United
States, contrary to section 13, act of 1924. Since it has been
determined that appellant L did not procure her visa by fraud and
misrepresentation in 1942, this visa was valid and authorized her
admission as a permanent resident. Consequently, she is therefore a
bona fide returning resident in possession of a resident alien's
border-crossing identification card, which was issued to her in 1950.
Unfortunately, this border-crossing card expired on March 13, 1951,
prior to her application for admission. Hence, since appellant L was
not in possession of a currently valid entry document, this ground of
exclusion is sustained (sec. 13, act of 1924).
The final ground of exclusion is that appellants failed to present
passports as required by Executive Order 8766. According to the record,
appellant C presented a Mexican passport, valid until January 18, 1953,
at the time he applied for admission. Since appellant L was not
entitled to exemption from the passport requirement (8 C.F.R. 175.44)
this ground is sustained.
However, by virtue of the provisions of section 211(b) of the act of
1952, /8/ the documentary requirements may be waived for appellant L .
In view of her long residence in the United States of over 20 years, we
will direct the granting of this waiver. The appeals are accordingly
sustained.
Order: It is hereby ordered that documentary requirements be waived
for L R de V under section 211(b) of the act of 1952 and that the appeal
be sustained as to C V G .
(1) The polygamy clause was derived from sec. 3 of H.R. 6060, 63d
Cong., 3d sess. (1914).
(2) Congressional Record, vol. 52, pt. 1, pp. 808, 809, 810, 811.
(3) By the act of July 1, 1862 (R.S. 5352), the crime of bigamy was
defined for the Territories of the United States. R.S. 5352 was amended
by the act of March 22, 1822, to make polygamy a crime in the
Territories. Reynolds v. United States, (supra); Murphy v. Ramsey, 114
U.S. 15, (1885).
(4) Cf., Cannon v. United States, 116 U.S. 55 (1885); Snow v.
United States, 118 U.S. 346 (1886).
(5) In immigration law, the terms "bigamy' and "polygamy' are neither
synonymous nor interchangeable.
(6) Section 490, Bigamy. -- Any person who has a former wife or
husband living who shall marry another in this State shall be confined
in the penitentiary not less than 2 nor more than 5 years. Acts 1887,
p. 37.
Section 490a. Cohabiting in this State; bigamy. -- Every person,
having a husband or wife living, who shall marry another person, without
this State, and shall afterward live with or cohabit with such other
person within this State, shall be adjudged guilty of bigamy, and
punished in the same manner as provided in art. 490 of the Penal Code of
the State of Texas. Acts 1931, 42d leg., p. 10, ch. 9, s. 1.
(7) See also Matter of N , A-3156660, 2, I. & N. Dec. 206 (B.I.A.,
1944); Matter of G , 56041/599, 1, I. & N. Dec. 217 (B.I.A., 1942);
Matter of De B , A-7695007 (B.I.A., Sept. 4, 1952); Matter of A G ,
A-7480602 (B. I. A., Sept. 11, 1952).
(8) Sec. 211(b) Notwithstanding the provisions of sec. 212(a)(20) of
this title, in such cases or in such classes of cases and under such
conditions as may be by regulations prescribed, otherwise admissible
aliens lawfully admitted for permanent residence who depart from the
United States temporarily may be readmitted to the United States by the
Attorney General in his discretion without being required to obtain a
passport, immigrant visa, reentry permit or other documentation. (8 U.
S.C. 1181).
Citizenship, acquired at birth -- Section 1993, Revised Statutes, as amended -- Residence requirement as to parent.
In view of the long history of administrative construction interpreting broadly the residence requirement for parents under section 1993, Revised Statutes, as amended, two visits to the United States by a United States citizen parent prior to the birth of her children, one for two days and the other for a few hours, are held to satisfy the residence requirement of the statute.
CHARGES:
Warrant: Act of 1924 -- No immigration visa (each alien).
Act of 1918 -- No passport (each alien).
Discussion: These cases concern two natives of Mexico, brother and
sister, aged 17 and 15 years, who last entered the United States on
August 30, 1946, for permanent residence. They entered with their
mother, who presented evidence of her citizenship, and presumably they
were likewise regarded as citizens. The presiding inspector, on October
7, 1948, found the respondents to be aliens and subject to deportation
on the charges that they were not in possession of immigration visas or
passports. He recommended that their deportation be suspended under
section 19 of the Immigration Act of 1917. The Assistant Commissioner
has ordered the proceedings terminated and has certified his decision to
us for consideration.
The issue presented is whether the respondents are citizens of the
United States, or aliens.
They were born in Mexico on June 11, 1935, and September 7, 1937,
respectively. Their parents were natives of Mexico, the mother being a
citizen of the United States under section 1993, Revised Statutes, by
virtue of the fact that her father was born in the United States. As it
does not appear that he was expatriated it follows that his original
status must be presumed to have continued (Hauenstein v. Lynham, 1879,
100 U.S. 482, 484) and that his child, the mother of the respondents, is
a citizen.
The citizenship of the respondents is determined by said section
1993, as amended May 24, 1934 (48 Stat. 797), which follows:
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. * * * /1/
Prior to the 1934 amendment section 1993, R.S., declared that
children born abroad of American fathers were citizens of the United
States, and provided that "the rights of citizenship shall not descend
to children whose fathers never resided in the United States.' The
Supreme Court, in Weedin v. Chin Bow, 1927, 274 U.S. 657, determined
that in order to transmit citizenship to the child the father must have
resided in the United States prior to the child's birth. The clarifying
language of the amendment "has resided in the United States previous to
the birth of such child' makes unnecessary reliance on the court's
interpretation that the residence of the parent in the United States
must have preceded the birth; such requirement is an express
requirement of the statute. The question is whether the mother had
resided in the United States prior to June 11, 1935, so far as concerns
the one respondent, and prior to September 7, 1937, as to the other.
The respondents' mother testified as follows:
I visited in the United States on September 16, 1929, and again
on September 16, 1931, in Presidio, Tex., but I did not come to
the United States to live until September 1938.
Q. How do you remember the dates of September 16, 1929, and
September 16, 1931, so well?
A. Because September 16th is a national holiday in Mexico, and
I remember that I made those visits in 1929 and 1931.
Q. How long did you remain in Presidio, Tex., on each of these
visits?
A. In 1929 I visited for 2 days, and in 1931 I was in Presidio
for only a few hours.
In Matter of E , 56048/740, 1941, 1, I. & N. Dec. 40, there was
presented to us the question under section 1933, as amended in 1934, of
whether the citizen parent had resided in the United States prior to the
birth of the child, although the residence was not of a permanent
character. Quoting from that decision:
The testimony shows that the husband (respondent's parent) was
born in Canada and had made his home there until October 15, 1940.
He has testified that he visited Kentucky for about 29 days about
11 or 12 years ago and again for 3 days about 4 or 5 years ago.
He has testified that on another occasion he stayed in Detroit,
Mich., with his sister for a short time. * * * He has testified
that on these occasions he came to this country as a visitor with
the intention of returning to his home in Canada. He has
testified that he never sought employment and that he was not
employed in this country prior to October 1940 (pp. 41, 42).
We said, in concluding that citizenship did not descend:
We have constantly adhered to the view that mere physical
presence in the United States is not sufficient. It is our view
that section 1993 of the Revised Statutes intended that the
father's presence in the United States prior to the birth of the
child must be characterized by permanency. The length of the
residence here is not deemed material, but we do hold that an
intention to reside is essential (p. 43).
The Attorney General reviewed our decision and directed that the
subject of the proceeding be admitted as a citizen. Presumably he lent
his approval to a memorandum submitted to him by an attorney of the
Department, containing the following:
The Immigration and Naturalization Service is of the view that
the infant child is an alien and must be in possession of an
immigration visa. The consular officers and the State Department
hold that the child is not an alien, and, therefore, not required
to have any documents under the immigration laws, and should be
admitted as a citizen of the United States. * * * The State
Department * * * holds that the purpose of the father's "presence
in the United States is of no material import inasmuch as he was
physically in the United States' (p. 45).
He cited 13 Op.Atty.Gen. 90, wherein it was determined that children
born abroad of a father who, at the time of their birth, was a citizen
of the United States and had at some time resided therein, are American
citizens under section 1993, R.S., and are entitled to all the
privileges of citizenship, and commented:
It is my view that the word "resided' as used in the statute is
used in the sense of "lived' in the United States. * * *
It is my recommendation that the Attorney General should sign
the order * * * which * * * directs that D E E be admitted as a
United States citizen.
The only distinction we discern between the precedent case and the
cases now before us involves the period of the visits. The former
involved visits of 29 days, and 4 or 5 days; the latter visits of 2
days and "a few hours.' Such distinction does not, in our opinion,
constitute basis in law for arriving at a different result.
Accordingly, on the basis of the precedent cited, we hold that the
respondents are citizens of the United States.
Order: It is ordered that the decision of the Assistant Commissioner
terminating the proceedings be affirmed.
(1) As the respondents took up residence in the United States on
August 30, 1946, when they were of the respective ages of 11 and 9
years, no issue of retention of citizenship is involved.
Discussion: The Board of Immigration Appeals, pursuant to Title 8,
Code of Federal Regulations, Section 6.1(h), has referred to me for
review its decision in the above cases. That decision affirmed a
decision of the Assistant Commissioner of Immigration and Naturalization
terminating deportation proceedings instituted against the respondents
on the ground that they were aliens who had entered the United States
illegally on August 30, 1946. The asserted illegality was that
respondents were not in possession of immigration visas and passports,
as required by the Immigration Act of 1924, 8 U.S.C. 1946 ed., Section
201, et seq., and the Passport Act of 1918, as amended, 22 U.S.C. 1946
ed., Section 223, the statutes in force on the entry date. Both the
Assistant Commissioner and the Board of Immigration Appeals concluded
that respondents on that date were citizens of the United States by
operation of section 1993 of the Revised Statutes, as amended by the act
of May 24, 1934, 48 Stat. 797, and, therefore, not subject to the
documentary requirements imposed on aliens by the Immigration Act of
1924 and the Passport Act of 1918.
Section 1993, as amended by the 1934 act, supra, read so far as here
relevant as follows:
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.
The pertinent facts are as follows: The respondents were born in
Mexico in 1935 and 1937, respectively. Their parents were also born in
Mexico. However, their mother at the time of their birth was a United
States citizen because her father was a citizen of the United States and
had resided therein prior to her birth. Section 1993, supra. Prior to
the birth of the respondents, their mother had been in the United States
on a two-day visit in 1929 and for a period of a few hours in 1931.
Considering itself bound by a 1941 decision of the Acting Attorney
General in Matter of E , 56048/740, 1, I. & N. Dec. 40, the Board of
Immigration Appeals concluded that respondent's mother had "resided' in
the United States prior to their birth within the meaning of section
1993.
In the E case it appears that the citizen father had been in the
United States prior to the birth of his son on three occasions -- once
on a visit of 29 days, a second time on a visit of 3 days, and a third
time on a visit for an unspecified "short time.' The Board of
Immigration Appeals there held that these visits did not satisfy the
residence requirement of section 1993, stating that although the
duration of the residence was not matterial, there must have been an
intention on the part of the parent to reside in the United States. The
Department of State brought to the attention of the Attorney General a
despatch from the American consul at Windsor, Canada, taking a contrary
view. It was the consul's position that the purpose of the parent's
presence in the United States was immaterial -- that section 1993
required no more than the parent's physical presence in the United
States prior to the birth of the child. The Department of State, in
transmitting the despatch, did not specifically state that it approved
this position; it did not, however, disapprove. The Acting Attorney
General, although reversing the Board of Immigration Appeals, did so
without opinion.
The residence provision of section 1993 has rarely been before the
courts. In Weedin v. Chin Bow, 274 U.S. 657 (1927), the Supreme Court
had before it the question whether the statute, as it read at the time,
/1/ was satisfied where the residence of the citizen parent in the
United States occurred only after the birth of the child. The Court
held that the required residence must have occurred prior to the birth
of the child, even though the statute did not expressly so provide. /2/
The Court, however, did not have before it, nor did it discuss, the
nature or length of the residence needed to satisfy the statute. In the
only other judicial determination bearing on the question, State ex rel.
Phelps v. Jackson, 79 Vt. 504 (1907), the citizen parent had lived in
the United States for several years during his infancy. The Court
rejected the argument that this did not meet the residence requirement
of the statute because a minor cannot legally acquire an independent
residence; it said (pp. 519-520):
There is nothing in the act indicating that any intent on the
part of the person in question is required. The purpose of the
provision is to prevent the residence abroad of successive
generations of persons claiming the privileges of American
citizenship while evading its duties -- which does not require the
narrow construction asked for by the relator.
Nor is the legislative history of section 1993 illuminating; there
is nowhere any discussion as to the meaning of the term "resided.' Its
history prior to its amendment in 1934 is reviewed in Weedin v. Chin
Bow, supra, at pp. 660-666. /3/ The legislative history of the 1934
amendment is equally barren. /4/
As an original proposition, the view that the visits of the
respondents' mother to the United States of 2 days on one occasion and
of a few hours on another constitute residence for purposes of the
statute is subject to serious doubt. In other situations residence,
although not required to have the element of permanency, has been held
to necessitate more than a place of mere sojourning or transient
visiting. See, for example, Guessefeldt v. McGrath, 342 U.S. 308;
McGrath v. Kristensen, 340 U.S. 162; Barney v. Oelrichs, 138 U.S. 529;
Frost & Dickinson v. Brisbin, 19 Wend. (N.Y.) 11; McEntyre v. Burns, 81
Ga.App. 239; Fink v. Katz, 68 A.2d 812. And, under the statutes, which
have been in effect since the repeal of section 1993 by the Nationality
Act of 1940, Section 504 (54 Stat. 1172, 8 U.S.C. 1946 ed., Section
904), visits of the duration and nature here involved would not suffice
to confer citizenship on children born abroad. /5/
Nevertheless, I am not inclined to reverse the decision of the Board
of Immigration Appeals, thereby taking away the citizenship not only of
these respondents but also casting doubt upon the citizenship of other
persons in similar circumstances. Residence being a word which may bear
different shades of meaning (see 1 Beale, The Conflict of Laws 110) has
occasionally been said to include sojourning and transient visiting
(Appeal of Wolf, 13 Atl. 760; Matter of Gahn, 110 Misc. (N. Y.) 96;
Phillips v. S.C. Tax Commission, 195 S.C. 472; Switzerland Gen. Ins.
Co. v. Gulf Ins. Co., 213 S.W.2d 161; Smith v. Whitewater, 251 Wis.
313), and has sometimes been described in terms of wherever a person may
happen to be and of mere "bodily presence' in a place (Farrow v. Farrow,
162 Ia. 87; In re Application of Quale, 213 Minn. 421; Matter of
Gahn, (supra)). It is in this broad sense that it has been
administratively construed over a long period of time. Both the
Immigration and Naturalization Service of the Department of Justice and
the Board of Immigration Appeals have adhered to this construction at
least since the E decision (supra). /6/ Similarly, the Department of
State has long been of the view that short visits to the United States
by the parent are enough. See 3 Hackworth, Digest of International Law
(1942), p. 21. In a more recent expression that Department has said
that it has not insisted upon any minimum period of residence, however
brief, and has made no distinction between residence while a minor and
residence as an adult. /7/
The Department of State further advises that it does not feel
justified in urging a reversal of a position which, it states, "is
supported not only by an opinion of the Attorney General and
long-standing administrative determinations of this Department, but also
by the only reported court decision construing the language in question
(State ex rel. Phelps v. Jackson, supra)'; and "there appears to be no
direct judicial or administrative authority for any contrary view.' /8/
Whatever may have been the uncertainty in the earlier statute (an
uncertainty which may well have induced the Congress to make the present
statute more definite in this regard, see footnote 5, supra), /9/ it has
nevertheless had a long history of administrative construction that
should not, in my judgment, be overturned at this late date. Moreover,
it cannot be said that that construction is without a modicum of support
in the cases. As stated by one of my predecessors: "A contemporaneous,
uniform, and long-continued construction of a statute by the department
of the Government charged with its administration, under which rights
have been determined and adjusted, is not to be disturbed in the absence
of compelling reasons.' 39 Op.Atty.Gen. 194, 196. I see no such reasons
here.
Accordingly, the decision of the Board of Immigration Appeals is
affirmed.
(1) "All children heretofore born or hereafter born out of the limits
and jurisdiction of the United States, whose fathers were or may be at
the time of their birth citizens thereof, are declared to be citizens of
the United States; but the rights of citizenship shall not descend to
children whose fathers never resided in the United States.'
(2) Reviewing the legislative history of the statute, which was found
not to be dispositive (id., pp. 660-666), the Court concluded that its
reading of the statute was more in accord with the "probable attitude'
of the Congress not to "extend(s) citizenship to a generation whose
birth, minority and majority, whose education, and whose family life,
have all been out of the United States and naturally within the
civilization and environment of an alien country' (id., p. 667).
(3) Section 1993 had its origin in the act of March 26, 1790, 1 Stat.
103. The provisions of that act relating to the citizenship of children
born abroad were reenacted in substance by Section 3 of the act of
January 29, 1795, 1 Stat. 415, and then repealed by the act of April 14,
1802, 2 Sat. 153, except with respect to children whose parents were
citizens on or before that date. They were reestablished by the act of
February 10, 1855, 10 Stat. 604, and embodied in the Revised Statutes as
Section 1993. The Court observed that there was no reference in the
1790 proceedings in Congress concerning the scope of the statute and
that the report on the 1855 act was never found.
(4) The 1934 amendment, 48 Stat. 797, conferred upon mothers who were
United States citizens the same right to transmit citizenship to their
children as was then possessed by fathers; the amendment also added the
express requirement that the residence of the citizen parent in the
United States must have occurred prior to the birth of the child. For
the legislative history see H. Rept. No. 131, 73d Cong., 1st Sess., S.
Rept. No. 865, 73d Cong., 2d Sess.; 78 Cong.Rec. 2077-2078, 2773-2774,
7329-7334, 7337-7350, 7355-7359, 8469-8471, 9425, 9308, 9406, 9426,
9551; and see also 38 Op.Atty.Gen. 10 (1934).
(5) Under the 1940 act the parent must have had, depending on the
particular circumstances involved, either "ten years' residence' in the
United States prior to the birth of the child (Section 201(g), 8 U.S.C.
1946 ed., Section 601(g)), or, by application of Section 104 (8 U.S.C.
1946 ed., Section 504), his "general abode' in the United States prior
to such birth (Nationality Act, Section 201(c), (d); 8 U.S.C., 1946
ed., Section 601(c)(d)). Under the present statute, the Immigration and
Nationality Act of 1952, the citizen parent must have been in the United
States, prior to the birth of the child, depending again on the
particular circumstances involved, either for a continuous period of one
year, for periods totaling not less than 10 years or had his place of
"general abode' in the United States. "General abode' is defined to
mean "principal, actual dwelling place in fact, without regard to
intent.' 66 Stat. 235, 8 U.S.C. 1952 ed., Section 1401; 66 Stat. 166, 8
U.S.C. 1952 ed., Section 1101(a)(33).
(6) See Nationality Manual (United States Department of Justice), p.
4007. The following have been held to satisfy the residence
requirements of the statute: Father in the United States for about 2
years on temporary assignment as a missionary; father in the United
States on a number of occasions for temporary visits of 6 weeks to 4
months as an itinerant laborer; father in the United States on three
occasions, each a few months in duration, as a laborer; father in the
United States for 6 months during his minority. However, the mere
presence of the parent for a few hours while in transit through the
United States is not sufficient.
(7) The Department of State agrees that passage in transit does not
suffice.
(8) The Department of State also states that while it is unable to
estimate the number of children who have been held to have acquired
American nationality under its interpretation of section 1993, it is
probable that "only the smallest percentage involved fathers or mothers
whose residence in the United States had been of a duration of less than
a year at the time of the child's birth.'
(9) Compare the 1950 report of the Senate Judiciary Committee which
investigated the current immigration and nationality laws: "the
provisions of existing law relative to the citizenship of children born
abroad of a citizen parent or parents are confusing and difficult to
administer and interpret, particularly with reference to residence
requirements, both of parents and children.' S. Rept. No. 1515, 81st
Cong., 2d sess., p. 713.
Permission to reapply -- Section 212(a)(17) of the Immigration and Nationality Act -- Factors to be considered.
Permission to reapply for admission after arrest and deportation is
not granted unless (1) unusual hardship would result to persons lawfully
in the United States if the application should be denied, or (2) there
is need for the services of the applicant in the United States, or (3)
the applicant is a bona fide crewman who has no means of earning his
livelihood other than by pursuing such calling, which necessitates his
coming to the United States, or (4) it is necessary for the applicant to
enter the United States frequently across the international land border
to purchase the necessities of life or in connection with the business
in which he is engaged or for some other urgent reason. In addition it
must be found that the alien is presently admissible to the United
States and that the fraud perpetrated upon the government is not a bar
to his readmission.
Discussion: This record relates to a 43-year-old native and citizen
of Mexico who was permitted to depart voluntarily from the United States
on March 30, 1953, under a warrant of deportation issued March 5, 1953,
containing the charge that at the time of his entry into the United
States at El Paso, Tex., on January 10, 1947, he was not entitled under
the Immigration Act of 1924 to enter the United States for the reason
that the immigration visa which he presented was not valid because
procured by fraud or misrepresentation. His application for consent to
reapply for admission after arrest and deportation was denied by the
district director of the Service at Los Angeles, Calif., on August 20,
1953, for the reason that he is inadmissible to the United States as an
alien who has procured a visa by fraud or by willfully misrepresenting a
material fact. From that decision he has taken this appeal.
The evidence of record upon which the deportation charge was based
establishes the following facts: The alien was married on April 14,
1936, in Mexico to one R P . Two children were born of that marriage.
The alien and R P were divorced in Mexico on August 7, 1953. During a
previous stay in the United States in 1944 and 1945 the alien lived with
one T B N by whom he had one illegitimate child and while in the United
States again in 1946 he went through a marriage ceremony with T B N at
Los Angeles, Calif., on June 27, 1946. On January 6, 1947, he obtained
a nonquota immigrant visa at the American Consulate in San Luis Potosi,
Mexico, under the provisions of section 4(c) of the Immigration Act of
1924. In his application for the visa he represented that he was
married to T B N but omitted the fact that his prior marriage had not
been terminated and that he was the father of at least three children.
The hearing officer found the deportation charge sustained and it was
sustained subsequently by the central office and the Board of
Immigration Appeals.
The alien now requests consent to reapply for admission to the United
States after arrest and deportation in order that he may reenter the
United States, remarry T B N now that he is free to do so, legitimize
their children, and thereafter remain in the United States to provide
for their support.
In considering the cases of persons deported from the United States
the Congress passed the act of March 4, 1929, which barred the return to
the United States forever of all persons arrested and deported in
pursuance of law. This act was amended on June 24, 1929, by the
addition of a proviso making it inapplicable to any alien arrested and
deported before March 4, 1929, in whose case, prior to reembarkation at
a place outside the United States or application in foreign contiguous
territory for admission to the United States, and prior to March 4,
1929, permission to reapply for admission had been granted by the proper
authority. Recognizing that this was a very harsh act and that cases
might arise in which an unjustified hardship would be worked upon
persons in the United States if the deported aliens were not permitted
to return to this country, the Congress again amended the act on May 25,
1932, to provide that such a person might not reenter the United States
within 1 year after arrest and deportation, and after the expiration of
1 year only if granted permission to reapply by the appropriate
authority. These provisions relating to consent to reapply for
admission have been carried over into the Immigration and Nationality
Act with one change -- that the alien may be granted consent to reapply
and may reapply for admission at any time after deportation.
In carrying out the intent of Congress as expressed by the act of
March 4, 1929, as amended, and the Immigration and Nationality Act, the
Service denies permission to reapply for admission to the United States
after arrest and deportation in all cases unless it appears that (1)
unusual hardship would result to persons lawfully in the United States
if the application should be denied, or (2) there is need for the
services of the applicant in the United States, or (3) the applicant is
a bona fide crewman who has no means of earning his livelihood other
than by pursuing such calling, which necessitates his coming to the
United States, or (4) it is necessary for the applicant to enter the
United States frequently across the international land border to
purchase the necessities of life or in connection with the business in
which he is engaged or for some other urgent reason.
In the consideration of cases falling within the above categories,
two other factors must be weighed, the alien's admissibility to the
United States, and whether the fraud perpetrated on the Government is a
bar to his readmission. Notwithstanding the contention of the alien's
attorney in his brief that there was no willful or knowing attempt to
commit fraud or mislead the American consular officer at the time the
alien obtained his immigrant visa, the fact remains that he was found
deportable and deported on the charge that the visa which he presented
was not valid because procured by fraud or misrepresentation. The alien
has also admitted committing acts which constitute the essential
elements of a crime involving moral turpitude, to wit, bigamy. It
appears, therefore, that he is rresently excludable from the United
States under the provisions of sections 212(a)(9) and 212(a)(19) of the
Immigration and Nationality Act.
Upon consideration of the entire record and the attorney's brief, it
is concluded that no purpose would be served were consent to reapply for
admission after deportation granted in this case since the grant of such
consent would not remove the bar to the alien's admission to the United
States.
Order: It is ordered that the appeal from the district director's
decision denying consent to reapply for admission to the United States
after arrest and deportation be, and the same is hereby, dismissed.
Crime involving moral turpitude -- Evasion of taxes in violation of 26 U.S.C. 145(b) -- Denaturalization -- Deportability under the Immigration and Nationality Act -- Nolo contendere.
(1) Since moral turpitude inheres in the intent, the offense defined in 26 U.S.C. 145(b) is a crime involving moral turpitude.
(2) The relation back doctrine with respect to denaturalization applies to criminal grounds of deportation but not to documentary charges.
(3) A plea of nolo contendere is an admission of guilt or in effect a plea of guilty, but only for the purposes of the case. Since respondent entered this plea on advice of counsel and with the consent of the court and because the plea is equivalent to an admission of guilt, the plea is definitely final and completely binding upon respondent.
CHARGES:
Warrant: Act of 1952 --
Section 212(a)(20) -- No immigrant visa.
Section 212(a)(9) -- Convicted of crime prior to entry -- Income tax
evasion (26 U.S.C. 145(b)).
Discussion: This case is before us on appeal from a decision of a
special inquiry officer dated September 23, 1953, directing deportation
as a person who was excludable at time of entry under section 212(a)(9)
of the act of 1952, as an alien convicted of a crime involving moral
turpitude (26 U.S.C. 145(b); sec. 241(a)(1)).
Respondent, a 61-year-old native and citizen of Poland, last entered
the United States at Miami, Fla., on December 30, 1952, after spending 2
days in Cuba in search of employment. On that occasion, he was admitted
as a naturalized citizen upon presentation of a certificate to that
effect. His first entry occurred in 1912 and he remained in this
country until 1915 when he left to enlist in the Canadian army. He
served in the military forces of Canada for 3 years and returned to the
United States in 1918. From 1918 to 1938, respondent continuously
resided in this country except for an absence of 1 day. In 1946, a
record of his entry for permanent residence was created through registry
under section 328(b) of the Nationality Act of 1940.
On July 24, 1947, respondent was naturalized in the District Court
for the Southern District of New York. In May 1947, he was indicted for
two counts of violating 26 U.S.C. 145(b), occurring in 1943 and 1944 in
connection with taxes allegedly due in 1942 and 1943. /1/ On October
13, 1948, respondent was convicted on a plea of nolo contendere in the
United States District Court for the Southern District of Florida. He
was sentenced to 3 years' imprisonment and $5,000 fine, with the
sentence being suspended and respondent being placed on 5 years'
probation.
Since respondent stated in his application for naturalization in 1947
that he had not been arrested or convicted, he was denaturalized on May
7, 1953, in the United States District Court for the Southern District
of New York for making false statements and concealment of arrests or
convictions. He was later convicted and sentenced for making these
false statements to serve 6 months in jail, with the imprisonment being
suspended and probation granted. The special inquiry officer determined
that the crime for which respondent was convicted in 1947 (violation of
26 U.S.C. 145(b)) was a crime involving moral turpitude, citing Matter
of A , 56041/710, 1, I. & N. Dec. 436 (B.I.A., 1943).
26 U.S.C. 145(b) provides as follows:
Failure to collect and pay over tax. or attempt to defeat or
erade tax. Any person required under this chapter to collect,
account for, and pay over any tax imposed by this chapter, who
willfully fails to collect or truthfully account for and pay over
such tax, and any person who willfully attempts in any manner to
evade or defeat any tax imposed by this chapter or the payment
thereof, shall, in addition to other penalties provided by law, be
guilty of a felony and, upon conviction thereof, be fined not more
than $10,000, or imprisoned for not more than 5 years, or both,
together with the costs of prosecution. (53 Stat. 62, as amended
October 21, 1942.) /2/
Since the issue before us is whether the offense defined in section
145(b) is a crime involving moral turpitude, it is necessary to
determine the judicial interpretation placed on the statutory language
of this section. Counsel for the Immigration Service contends that the
word "evade' is equivalent to fraud and, on the basis of Jordan v.
DeGeorge, 341 U.S. 223 (1951), the crime necessarily involves moral
turpitude. Counsel for respondent disputes this interpretation of
section 145(b), since the court cases arising under this statute have
not interpreted "evade' in such fashion.
The special inquiry officer mentioned Matter of A (supra), which
involved "intent to evade' a Canadian sales tax. This decision held
that a violation of section 112(3) of the Special War Revenue Act of
Canada was an offense involving moral turpitude. However, since we
presently are considering a completely different type of tax statute and
one that is not of foreign orgin, the A case is not controlling. In the
instant situation, the courts have had an opportunity to pass on section
145(b) on numerous occasions and they must serve as our primary source
of enlightment. Also, it is noted that Guarneri v. Kessler, 98 F.(2d)
580 (C.C.A. 5, 1938), was the chief authority in the A case and turned
on a conviction for smuggling "with intent to defraud,' which is an
offense of quite different import from section 145(b).
Although many judicial decisions under section 145(b) are not helpful
in the instant situation, some are of course relevant here. In Spies v.
United States, 317 U.S. 492 (1943), the Supreme Court was called on to
determine whether section 145(a) or section 145(b) applied to a person
who failed to file an income tax return for a given year or to pay any
tax, although his income for that year was sufficient to require him to
do both. On that occasion, the court determined that there was evidence
to support an inference of a willful attempt to evade taxes sufficient
to support a conviction under section 145(b). /3/
In United States v. Croessant, 84 F.Supp. 514 (E.D. Pa., 1949), the
question before the court was Croessant's failure to include certain
business income in his tax returns and whether this failure constituted
a deliberate attempt to evade income taxes. In its decision, the
district court stated: "A combination of willful omission and
deliberate attempt to evade the tax constitutes the positive attempt
that lifts the offense to the degree of (the) felony' which is censured
in section 145(b). On appeal, 178 F.(2d) 96 (C.A. 3, 1949), the Court
of Appeals said that there is a distinct difference between the failure
to file any return (which was held to be no misrepresentation in Spies
case) and the filing of a willfully false return, which endeavors to
mislead the Government and is an affirmative act in violation of section
145(b). Since the court did not draw the inference that fraud is
inherent in tax evasion, this judicial omission must be respected as
binding upon us. The drawing of such an inference, we feel, would in
fact be gratuitous and unwarranted on our part.
While United States v. Ragen, 314 U.S. 513 (1942), arose under
section 145(b), the issue there turned on the deductability of
commissions in a corporate income tax return and is of no assistance in
solving the instant question. Although section 145(b) was involved in
United States v. Johnson, 123 F.(2d) 111, 124 (C.C.A. 7, 1941); 319 U.
S. 503 (1943), the Court of Appeals was concerned with questions so
dissimilar to the present one that the decision is of no special help to
us here. In addition, the decision was reversed later by the Supreme
Court on grounds equally of little interest to us in the instant case.
In Battjes v. United States, 172 F.(2d) 1 (C.A. 6, 1949), the only
question was whether the acts were "willful,' as distinguished from a
bona fide misconception of the law which resulted in an erroneous tax
return, not whether the acts involved were tainted with fraud. United
States v. Capone, 93 F.(2d) 840 (C.C.A. 7, 1937); cert. den., 303 U.S.
651 (1938), was concerned with 26 U.S.C. 145(a) and (b) and determined
only that a failure to make a return under subsection (a) and a willful
evasion under subsection (b) are in fact separate and distinct offenses.
It is interesting to note that in the various cases ciscussed above the
courts have attempted to correlate an intent to defraud with the
statutory term "willful' in section 145(b).
Although numerous cases have been cited by the special inquiry
officer, respondent's counsel, and the Immigration Service attorney,
United States v. Scharton, 285 U.S. 518 (1932), is the controlling
decision. /4/ Scharton was indicted under an identically worded statute
/5/ for attempting to evade taxes during 1926 and 1927 by falsely
understating his taxable income. The Supreme Court determined that the
word "evade' did not involve defrauding or attempting to defraud, within
the meaning of 18 U.S.C. 585 (Supp. V). This latter section stated that
the statute of limitations on tax violations was 3 years, unless the
offenses involved "defrauding or attempting to defraud,' in which
situation the statute of limitations was 6 years. Hence, under the
Supreme Court's interpretation of the word "evade,' only the 3-year
statute of limitations applied and the action against Scharton was not
timely.
Therefore, since the word "evade' in section 145(b) does not signify
an intent to defraud, the DeGeorge test cannot be invoked. /6/ The
moral turpitude question then turns on the crucial statutory word
"willfully.' According to Hargrove v. United States, 67 F.(2d) 820 (C.
C.A. 5, 1933), "willful' in section 145(b) means actual knowledge of the
existence of the obligation and specific wrongful intent. /7/
In Morissette v. United States, 342 U.S. 246 (1952), the Supreme
Court made comments pertinent to the present question. The Court stated
at pages 264, 265:
Congress has been alert to what often is a decisive function of
some mental element in crime. It has seen fit to prescribe that
an evil state of mind, described variously in one or more such
terms as "intentional,' "willful,' "knowing,' "fraudulent' or
"malicious,' will make criminal an otherwise indifferent act, or
increase the degree of the offense or its punishment. Also, it
has at times required a specific intent or purpose which will
require some specialized knowledge or design for some evil beyond
the common-law intent to do injury. The law under some
circumstances recognizes good faith or blameless intent as a
defense, partial defense, or as an element to be considered in
mitigation of punishment. (Citing 26 U.S.C. 14(a), (b) as
construed in Spies v. United States, 317 U.S. 492.) /8/
We feel that the courts in passing on section 145(b), as well as in
other cases like Morissette v. United States, have determined
"willfully' connotes an evil intent, since it differentiates between
conscious or deliberate acts and accidental or unintentional
infractions. In addition, section 145(b) imposes a duty on the taxpayer
to pay the amount he justly owes and failure to do so, through a willful
attempt to evade, constitutes unjust enrichment of the taxpayer and an
intent to deprive the Government of this tax money (Spies v. United
States, supra); United States v. Skidmore, 123 F.(2d) 604 (C.C.A. 7,
1941.)
Hence, since moral turpitude inheres in the intent /9/ the offense
defined in 26 U.S.C. 145(b) is a crime involving moral turpitude.
Counsel for respondent also argues that respondent is not deportable
as a person who was in fact an alien at the time of entry, since
respondent was a United States citizen when he last arrived in this
country. Counsel disputes the applicability of the so-called relation
back doctrine upon denaturalization /10/ in connection with this
doctrine's effect on a prior entry /11/ as a United States citizen and
possible deportation of the former citizen.
In support of this contention, counsel cites Matter of C , A-5982828,
3, I. & N. Dec. 275 (Atty. Gen., January 6, 1950). In that instance,
the alien arrived in 1923; he was naturalized in March 1930; he left
this country in August 1930; he reentered the United States on June 5,
1931, and was admitted as a citizen; and on March 28, 1944, his
naturalization was canceled for actual fraud. Thereafter, a warrant of
arrest was issued, charging that C had entered the United States in 1931
without the requirel visa. The Immigration Service contended that,
since C 's naturalization was canceled for actual fraud, he was never
legally and really a United States citizen and was actually an alien at
the time of reentry, required to present a reentry permit or visa in
1931. The Board held, and the Attorney General affirmed the view, that
C was not deportable on documentary grounds; the relation back doctrine
was rejected as a legal fiction based on the performance of an
impossible act -- the obtaining of a reentry permit in 1930, while C was
still a citizen. /12/
However, on the basis of United States ex rel. Eichenlaub v.
Shaughnessy, 338 U.S. 521 (1950), /13/ the decision in the Matter of C
(supra), has been held by the Board to be limited to documentary charges
and inapplicable to criminal grounds of deportation, Matter of P ,
A-4068102, 4, I. & N. Dec. 373, (B.I.A., 1951). /14/ In addition, the
Board has determined that cancellation of an illegal naturalization, as
in the present case, is the revocation of citizenship as a result of
affirmative and willful conduct akin to fraud. For that reason, the
relation back doctrine would apply and deportation is possible for a
crime involving moral turpitude committed within five years of entry,
Matter of B , A-2544646, Int. Dec. No. 499 (B.I.A., 1953).
In the instant case, even though respondent was indicted in May 1947
for violating 26 U.S.C. 145(b), he was naturalized in the Southern
District of New York in July 1947. His conviction occurred in October
1948 on a plea of nolo contendere in the United States District Court
for the Southern District of Florida. Because respondent had stated in
his naturalization application that he had not been arrested or
convicted, cancellation of his citizenship followed in 1953, with a
conviction for making false statements in the naturalization application
also resulting.
Thus, since respondent last entered the United States on December 30,
1952, as a citizen and because respondent is now subject to deportation
on a criminal ground, the relation back doctrine is applicable here. On
the basis of Matter of P (supra), and Matter of B (supra), respondent
did in fact make an entry within the meaning of sections 101(a)(13) and
241(a) of the Act of 1952. /15/ Matter of S , A-8017222, Int. Dec. No.
563 (B.I.A., 1954). Consequently, he is deportable as an alien
convicted of a crime prior to entry (section 212(a)(9)). On the other
hand, respondent is not deportable on a no visa charge (section
212(a)(20)), Matter of C (supra). /16/
It is noted in passing that respondent was convicted of violating 26
U.S.C. 145(b) on a plea of nolo contendere. Under the Federal Rules of
Criminal Procedure, rule 11, the right to such a plea is clearly
discretionary with the court. /17/ A plea of nolo contendere is an
admission of guilt or in effect a plea of guilty, but only for the
purposes of the case. Such a plea leaves open for review solely the
question of the sufficiency of the indictment (United Brotherhood of
Carpenters & Joiners v. United States, 330 U.S. 395 (1947); United
States v. Frankfort Distilleries, 324 U.S. 293 (1945); United States v.
Norris, 281 U.S. 619 (1930); Singleton v. Clemmer, 166 F.(2d) 963
(C.A.D.C., 1948); United States v. Cosentino, 191 F.(2d) 574 (C.A. 7,
1951)). Since respondent entered this plea on advice of counsel and
with the consent of the court and because this plea is equivalent to an
admission of guilt, the plea is definitely final and completely binding
upon respondent.
For all of the foregoing reasons, respondent is definitely deportable
as an alien convicted of a crime involving moral turpitude, committed
prior to entry (sec. 212(a)(9), act of 1952).
Counsel also suggests that some form of discretionary relief might be
appropriate in the instant case. However, respondent is unable to
establish good moral character during the past 5 years under section
101(f)(3), because he is deportable under section 212(a)(9).
Consequently, he is ineligible for relief under section 244(a) and
section 244(e). The appeal is accordingly dismissed.
Order: It is hereby ordered that the appeal be dismissed.
(1) According to count I of the indictment, respondent alleged that
he sustained a net loss in 1942, although he actually had a net income
of $40,000. Count II charged that he understated his income by
approximately $78,000.
(2) Similar predecessor statutes are the following: Act of October
3, 1913, c. 16, sec. II, subdivision F.G. 38 Stat. 171, 177; act of
September 8, 1916, c. 463, secs. 14, 18, 39 Stat. 772, 775 (sec. 18
amended by act of October 3, 1917, c. 63, sec. 1209, 40 Stat. 1085);
act of February 24, 1919, c. 18, sec. 253, 40 Stat. 1085; act of
November 23, 1921, c. 136, sec. 253, 42 Stat. 268; act of June 2, 1924,
c. 234, sec. 1017, 43 Stat. 343; act of February 26, 1926, c. 27, sec.
1114, 44 Stat. 116; act of May 29, 1928, c. 852, sec. 146, 45 Stat.
835; act of June 6, 1932, c. 209, sec. 145, 47 Stat. 217; act of May
10, 1934, c. 277, sec. 145, 48 Stat. 724; act of June 22, 1936, c. 690,
sec. 145, 49 Stat. 1703, as amended by the act of August 26, 1937, c.
815, title II, sec. 207(e), 50 Stat 826.
(3) See also, Norwitt v. United States, 195 F.(2d) 127, 132 (C.A. 9,
1952); United States v. Troy, 293 U.S. 58, 62 (1934).
(4) It is noted in passing that numerous other cases have been
considered and found inapplicable here. Among others are: United
States v. Noveck, 273 U.S. 202 (1927); Braverman v. United States, 317
U.S. 49 (1942); Bridges v. United States, 346 U.S. 216, 231 (1953);
United States v. Grainger, 346 U.S. 235 (1953); Wiggins v. United
States, 64 F.(2d) 950 (C.C.A. 9, 1933); United States v. Tuffanelli,
131 F.(2d) 890 (C.C.A. 7, 1942); Marzani v. United States, 168 F.(2d)
133 (C.A.D.C., 1948); Dawley v. United States, 186 F.(2d) 978 (C.A. 4,
1951); United States v. Franklin, 188 F.(2d) 182 (C.A. 7, 1951);
Bridges v. United States, 199 F.(2d) 811 (C.A. 9, 1952).
(5) Sec. 1114(b) of the Internal Revenue Act of 1926; 44 Stat. 116;
26 U.S.C. 1266 (Supp. V).
(6) In United States v. Carrollo, 30 F.Supp. 3 (W.D. Mo., 1939), the
court determined that perjury under 18 U.S.C. 231 was a crime involving
moral turpitude, although income tax evasion under sec. 145(b) did not
constitute such an offense.
Although counsel for the Immigration Service has stated that the
DeGeorge decision overruled the Carrollo case by implication, we feel
that this is a misstatement since the two cases involved quite different
types of revenue statutes. Our present decision is not based on this
case.
It is noted in passing that the alien Carrollo has more recently been
held deportable as one sentenced more than once under sec. 19(a) of the
act of 1917. In United States ex rel. Carrollo v. Bode, 204 F.( 2d) 220
(C.A. 8, 1953), the court determined that a conviction for conspiracy to
commit an offense against and to defraud the United States by carrying
on the business of a wholesale liquor dealer while willfully failing to
pay a special tax required by 26 U.S.C. 3253 was in fact one involving
moral turpitude. The second crime necessary for deportation was the
perjury offense, mentioned in the earlier judicial proceeding. While
there is a similarity between DeGeorge's offense under 26 U.S.C. 3321
and Carrollo's mere recent offense under 26 U.S.C. 3253, there is no
parallel between the offense involved in Carrollo's most recent
conviction and the offense defined in sec. 145(b).
(7) See also, Potter v. United States, 155 U.S. 438 (1894); Spurr v.
United States, 174 U.S. 728 (1899).
(8) For other statements of the court, see appendix A.
(9) U.S. ex rel. Mongiovi v. Karnuth, 30 F.(2d) 825, (W.D.N.Y.,
1929); U.S. ex rel. Meyer v. Day, 54 F.(2d) 336 (C.C.A. 2, 1931); U.
S. ex rel. Shladzien v. Warden, 45 F.(2d) 204 (E.D. Pa., 1930).
(10) Respondent's denaturalization occurred on May 7, 1953, because
respondent had made false statements in his naturalization application
to conceal his indictment for attempted income tax evasion.
(11) Respondent's last entry was on December 30, 1952, when he was
admitted as a United States citizen at Miami, Fla., after an absence of
2 days in Cuba.
(12) The Board stated on that occasion: "When respondent left the
United States in August 1930 to visit in Europe and when he returned in
June 1931, he was, both from a legal and from a factual point of view,
an American citizen. He was free to cross our borders without restraint
and without regard to any of the documentary requirements of the
Immigration Act of 1924. In fact, even if he had wanted to, he could
not have obtained, prior to departing, a reentry permit from the
immigration authorities or, prior to returning, a returning resident's
visa from the consular authorities abroad. Under the facts as they
existed in June 1931, he was entitled to admission as a citizen and he
was so admitted. The theory of the Service, adopted by us in our last
decision, can be supported only through the use of the doctrine of
relation back, a legal fiction at best * * *. To us it seems unfair to
seize upon a fiction to require respondent to have done that which was
impossible of performance, namely, to present an immigration document at
the time of his 1931 entry.'
(13) See appendix B for pertinent portions of the Supreme Court's
decision.
(14) The criminal charge in the P case was admission of commission of
crime of perjury, prior to entry. P was admitted as a United States
citizen in 1936 and denaturalized in 1938.
(15) Cf., U.S. ex rel. Volpe v. Smith, 289 U.S. 422 (1933); U.S. ex
rel. Pappageanakis v. Shaughnessy, 114 F.Supp. 371 (S.D.N.Y., 1933).
(16) It is noted that Chew v. Colding, 344 U.S. 590 (1953), cited by
counsel, is not responsive to the present problem.
(17) Rule 11. Pleas. -- A defendant may plead not guilty, guilty,
or, with the consent of the court, nolo contendere. The court may
refuse to accept a plea of guilty, and shall not accept the plea without
first determining that the plea is made voluntarily with understanding
of the nature of the charge. If a defendant refuses to plead or if the
court refuses to accept a plea of guilty or if a defendant corporation
fails to appear, the court shall enter a plea of not guilty. (See also
Rules 12(a), 20, 32(a).)
In the case of Morissette v. United States, 342 U.S. 246, the court
stated in part:
A relation between some mental element and punishment for a harmful
act is almost as instinctive * * * Unqualified acceptance of this
doctrine by English common law in the eighteenth century was indicated
by Blackstone's sweeping statement that to constitute any crime there
must first be a "vicious will.' * * *
Crime, as a compound concept, generally constituted only from
concurrence of an evil-meaning mind with an evil-doing hand, was
congenial to an intense individualism and took deep and early root in
American soil. As the states codified the common law of crimes, even if
their enactments were silent on the subject, their courts assumed that
the omission did not signify disapproval of the principles out merely
recognized that intent was so inherent in the idea of the offense that
it required no statutory affirmation. Courts, with little hesitation or
division, found an implication of the requirement as to offenses that
were taken over from the common law. The unanimity with which they have
adhered to the central thought that wrongdoing must be conscious to be
criminal is emphasized by the variety, disparity and confusion of their
definitions of the requisite but elusive mental element. However,
courts of various jurisdictions, and for the purposes of different
offenses, have devised working formulae, if not scientific ones, for the
instruction of juries around such terms as "felonious intent,' "criminal
intent,' "malice aforethought,' "guilty knowledge,' "fraudulent intent,'
"willfulness,' "scienter,' to denote guilty knowledge, or "mens rea,' to
culpability. By use or combination of these various tokens, they have
sought to protect those who were not blameworthy in mind from conviction
of infamous common-law crimes. * * *
Neither this court nor, so far as we are aware, any other has
undertaken to delineate a precise line or set forth comprehensive
criteria for distinguishing between crimes that require a mental element
and crimes that do not. We attempt no closed definition, for the law on
the subject is neither settled nor static.
Pertinent portions of the Supreme Court's decision in United States
ex rel. Eichenlaub v. Shaughnessy read as follows:
The above words require that all persons to be deported under this
Act shall be "aliens.' They do not limit its scope to aliens who never
have been naturalized. They do not exempt those who have secured
certificates of naturalization, but then have lost them by court order
on the ground of fraud in their procurement. They do not suggest that
such persons are not as clearly "aliens' as they were before their
fraudulent naturalization. * * *
In our opinion, it is not necessary, for the purposes of these cases,
to give a retroactive effect to the denaturalization orders. A simpler
and equally complete solution lies in the view that the act does not
require that the offenders reached by it must have had the status of
aliens at the time they were convicted. As the act does not state that
necessity, it is applicable to all such offenders, including those
denaturalized before or after their convictions as well as those who
never have been naturalized. The convictions of the relators for
designated offenses are important conditions precedent to their being
found to be undesirable residents. Their status as aliens is a
necessary further condition of their deportability. When both
conditions are met and, after hearing, the Attorney General finds them
to be undesirable residents of the United States, the act is satisfied.
* * *
If there were to be a distinction made in favor of any aliens because
they were at one time naturalized citizens, the logical time at which
that status would be important would be the time of the commission of
the crimes, rather than conviction of those crimes. Not even such a
distinction finds support in the statute.
The failure of Congress to give expression to the distinction between
aliens who never have been naturalized and those who have been
denaturalized, was not due to unfamiliarity with such matters. In 1920,
Congress * * * had had experience with the deportation of undesirable
aliens under section 19 of the Immigration Act of February 5, 1917, 39
Stat. 889, chapter 29, see 8 U.S.C.A., section 155, F.C.A. title 8,
section 155, as well as under other wartime acts and proclamations.
These acts did not distinguish between aliens who never had been
naturalized, and those who had obtained naturalization by fraud only to
lose it by court decree.
Preference quota status -- Section 203(a)(2) of the Immigration and Nationality Act -- Common-law marriage in Czechoslovakia.
The concept of "common-law marriage' comparable with the concept
under American law did not exist in Czechoslovak law prior to World War
II and does not exist under present law. Therefore, the beneficiary in
this case is not entitled to preference status under section 203(a)(2)
of the Immigration and Nationality Act as the parents of the petitioner
for the reason that the petitioner's parents had never been legally
married but had merely lived together.
Discussion: The matter comes before us on motion of the petitioner
requesting reconsideration of the denial of the petition for issuance of
an immigrant visa on behalf of the alleged mother, E R .
The facts are set forth in our decision of February 25, 1954. There
we concluded that the beneficiary was not entitled to a preference under
section 203(a)(2) as the parent of the petitioner for the reason that
the petitioner's parents had never been legally married but had merely
lived together. In view of the claim of a "commonlaw marriage' under
the laws of Czechoslovakia, we indicated that we would reconsider the
case in the event that evidence to establish a common-law marriage as
that term is understood in the United States was produced.
In connection with the present motion to reconsider, the petitioner
has submitted a memorandum of law relating to common-law marriage in
Czechoslovakia prepared by Dr. Gsovski and Dr. Kocvara of the Foreign
Law Section, Law Library, Library of Congress. Examination of this
memorandum, however, fails to aid the petitioner. The memorandum starts
out with the opening premise that in general it may be stated that a
concept of "common-law marriage' comparable with the concept under
American law did not exist in Czechoslovak law, and that this is true
both of Czechoslovak law prior to World War II and of present-day law.
Illustrations set forth in an appendix to the memorandum refer to
concubinage which is stated to be of no significance for civil law.
While it is apparently true that the concubine enjoys some privileges
and rights under Czechoslovak law, there is no showing that the status
which was created herein in Czechoslovakia constituted a valid and
lawful marriage such as a commonlaw marriage constitutes under American
law.
In addition, the memorandum is unfavorable to the claim of the
petitioner inasmuch as it was explained that the parents of the
petitioner did not enter into marriage because of a law in
Czechoslovakia prohibiting persons with a communicable disease from
marrying. The memorandum states that there has not been any
Czechoslovak provision preventing people sick of a contagious disease
from marrying.
Order: It is ordered that the motion be and the same is hereby
denied.
Evidence -- Use of admission of commission of crime made in prior hearing.
Although hearings de novo were granted to aliens who had been accorded hearings prior to the decision in Sung v. McGrath, 339 U.S. 33 (1950), before examiners who were not qualified in accordance with the Administrative Procedure Act, such action does not in itself invalidate the prior hearings for failure to comply with the provisions of the Administrative Procedure Act. Testimony and exhibits of such prior hearing are admissible in evidence as any other admission against interest would be. (See also Matter of O O , A-2826150, 4 I. & N. Dec. 765, December 23, 1952, and Matter of R , A-4678936, Int. Dec. No. 411.)
CHARGES:
Warrant: Act of 1924 -- Remained longer -- Visitor.
Lodged: Act of 1917 -- Admits crime prior to entry -- Perjury.
Discussion: Respondent has appealed from the decision and order of
the hearing officer entered on December 9, 1952, after hearing de novo,
finding him deportable from the United States on the charge stated in
the warrant of arrest and the additional charge lodged during the
hearing, denying his application for discretionary relief, and ordering
his deportation from the United States pursuant to law on the warrant
and the lodged charges.
This record relates to a 41-year-old male, a native and last a
citizen of Yugoslavia, who alleges that he is now stateless. He first
entered the United States on December 22, 1946, in possession of an
Italian passport, at which time he was admitted for 60 days to go in
transit to Venezuela. He applied for an extension of stay or change of
status to that of a temporary visitor. His application was denied but
he was granted permission to depart voluntarily, pursuant to which grant
he parted to Mexico on June 2, 1947.
He last entered the United States at Laredo, Tex., on June 20, 1947,
at which time he was admitted temporarily for 1 year to accept a
fellowship at Evangelical Hospital of Chicago. He remained in the
United States after the expiration of the period for which he was
admitted, although he never received an extension of that period.
The alien voluntarily submitted himself to the deportation process on
June 25, 1948, and at that time applied for suspension of deportation on
the basis of serious economic detriment to his citizen wife, to whom he
was married on June 13, 1948, in Chicago, Ill. Warrant of arrest,
charging deportability pursuant to the Immigration Act of 1924, in that,
after admission as a visitor, he had remained in the United States for a
longer period than permitted under said act or regulations made
thereunder, was issued on June 28, 1948, and hearing thereunder was
conducted at Chicago on May 31, 1949. During that hearing, the
respondent admitted the commission of the crime of perjury in the
execution of his application for nonimmigrant visa and alien
registration on July 11, 1947, and in testifying before a board of
special inquiry on June 12, 1947, by his having claimed birth in Italy
and Italian citizenship and army service in said application and
testimony. The alien was found deportable on the warrant charge and the
charge lodged during the hearing by the presiding inspector, which
decision was approved by the Assistant Commissioner. Appeal to this
Board was dismissed after careful consideration, by decision of January
9, 1950.
In view of the decision of the Supreme Court in Wong Yang Sung v.
McGrath, 339 U.S. 33 (1950), hearing de novo was granted the respondent.
During the hearing de novo, conducted on May 22 and November 21, 1952,
the alien, represented and advised by counsel, refused to answer
questions relating to the charge of deportability under the act of 1917
on the ground that such answers might incriminate him within the meaning
of the protection afforded against selfincrimination by the fifth
amendment to the Constitution of the United States. The hearing officer
introduced into evidence over objection of counsel the exhibits relating
to that ground of deportability which had been introduced at the
original hearing, and also over objection of counsel introduced the
transcript of record of previous hearing. At the conclusion of the
hearing, the hearing officer found that the respondent is an alien, a
native and last a citizen of Yugoslavia; that he last entered the
United States at Laredo, Tex., on June 20, 1947; that he was admitted
as a visitor for 1 year and has not been granted an extension of his
temporary stay; and that he was admitted the commission of perjury in
executing his application for a nonimmigrant visa at the American
consulate in Neuvo Laredo, Mexico, on June 11, 1947, and in his
testimony before a board of special inquiry at Laredo, Tex. on June 12,
1947. Based on the foregoing findings of fact, the hearing officer
concluded that under sections 14 and 15 of the Immigration Act of 1924,
the respondent is subject to deportation on the charge stated in the
warrant of arrest; and that under section 19 of the Immigration Act of
1917, the respondent is subject to deportation on the ground that he
admits commission prior to entry of a crime involving moral turpitude,
to wit: Perjury.
The detailed facts relating to this alien's origin, history, his
entry into the United States in possession of an Italian passport, and
his acts and testimony which have been found to constitute perjury have
been adequately discussed in the decision of this Board of January 9,
1950, on the former appeal and the decision and order of the hearing
officer after the conclusion of the de novo hearing, and we feel need
not be reiterated here. Counsel asserts that since the Chicago hearing
in 1949 did not comply with the provisions of the Administrative
Procedure Act, said hearing was void and lacking in legal effect; that
introduction of the transcript and evidence of the Chicago hearing in
the de novo hearing invalidated the de novo character of the hearing;
that but for the introduction of such evidence, the finding and
conclusion as to deportability under the act of 1917 is completely
unsupported. Counsel has cited many cases in support of his argument.
We have carefully considered counsel's authority, and find it not in
point.
This Board has previously held that an admission by an alien during
his testimony at a prior hearing considered invalid because of failure
to comply with the requirements of the Administrative Procedure Act then
in effect is nevertheless admissible in evidence at a subsequent hearing
(In the Matter of O O , A-2826150, 4, I. & N. Dec. 765). However, we do
not consider Matter of O O , (supra), completely controlling in the
instant case, inasmuch as counsel has cited no authority showing that
the prior hearing was invalied. The Supreme Court's decision in Suny v.
McGrath, 339 U.S. 33 (1950), did not invalidate all deportation hearings
held prior thereto in which the provisions of the Administrative
Procedure Act had not been complied with, but only those in which aliens
specifically raised objections under said act (United States v. Tucker
Truck Lines, Inc., 344 U.S. 33 (1952); Tom We Shung v. Brownell, 207
F.(2d) 132 (C.A.D. of C., 1953); In the Matter of R , A-4678936, Int.
Dec. No. 411).
Although the Immigration and Naturalization Services granted hearings
de novo to aliens who had been accorded hearings prior to the decision
in the Sung case before examiners who were not qualified in accordance
with the Administrative Procedure Act, such action taken by the Service
was done administratively and does not in itself invalidate the prior
hearing for failure to comply with the provisions of the Administrative
Procedure Act. The hearing officer committed no error in admitting into
evidence the transcript of testimony and exhibits of prior hearing, as
such record was admissible as any other admission against interest would
have been. See Matter of O O (supra).
Counsel objected during the course of the hearing to the introduction
by the hearing officer of documentary evidence relating to the
respondent's entries and departure from the United States, and other
documents, such as applications for extension of stay, relating to
respondent's presence in the United States and to the question of his
deportability under the immigration laws. Such documents were properly
received into evidence over objection.
The hearing was conducted in accordance with the regulations
governing the conduct of hearings under authority of warrant of arrest
in deportation proceedings in effect at that time (8 C.F.R. 151.2),
which provide, with an exception not here pertinent, in part as follows:
* * * the hearing officer shall present all available evidence,
including the interrogation of the alien and all witnesses
presented, concerning (1) alienage, (2) date, place, and manner of
entry into the United States, (3) grounds for deportation, (4)
factors bearing upon statutory eligibility for discretionary
relief, and (5) such other information as may be pertinent to the
issue of the case: * * *.' (8 C.F.R. 151.2(c), paragraph amended;
effective January 15, 1952, published 16 F.R. 12638, December
15, 1951.)
Counsel's objection to the introduction of such records was based
upon the assertion that proper foundation was not laid for the
introduction of such evidence, in that they had not been properly
identified by the persons who made the records, or the alien, in the
respective instances. Failure to identify documents in a legal manner
does not prevent their receipt into evidence in an administrative
proceeding where criteria is not admissibility but probative value (In
the Matter of K , A-5204481, Int. Dec. No. 427, B.I.A. March 18, 1953).
Hearing officers in conducting deportation proceedings are not bound by
the strict rules of evidence to which courts of law must conform
(Schoeps v. Carmichael, 177 F.(2d) 391 (C.A. 9, 1949)). Such officers
are, however, bound by the regulations promulgated under the law for the
conduct of deportation proceedings. Such regulations are binding upon
the Government as well as upon the alien (United States ex rel.
Marcello v. Ahrens, 113 F.Supp. 22 (E.D. La., 1953); Ex parte
Radivoeff, 278 Fed. 227 (D.C. Mont., 1922)).
In view of the foregoing, the record before us adequately sustains
the findings and conclusions of the hearing officer regarding
deportability of the alien on the warrant and the lodged charges. The
alien, having been found deportable as one who has admitted the
commission prior to entry of a crime involving moral turpitude, to wit:
Perjury, is ineligible for discretionary relief of suspension of
deportation or voluntary departure, being within the classes specified
in section 19(d) of the Immigration Act of 1917, as amended.
The respondent was ineligible for relief under the 7th proviso to
section 3 of the Immigration Act of 1917 at time the hearing was
conducted. He is likewise ineligible for any relief from deportation
under the Immigration and Nationality Act. The appeal therefore must be
dismissed.
Order: It is ordered that the appeal be, and the same is hereby,
dismissed.
Adjustment of status -- Section 245 of the Immigration and Nationality Act -- Minor may be charged to quota of parents with whom she resides.
For the purposes of adjustment of status under section 245 of the
Immigration and Nationality Act, a native of Venezuela is regarded as
accompanying her parents (natives of the Netherlands) with whom she
resides, and, in accordance with section 202(a)(1) of the act, may be
charged against the quota of her accompanying parents to prevent her
separation from them. Therefore, she is eligible for adjustment of
status under section 245 to that of a quota immigrant even though she
might also be admitted to the United States as a nonquota immigrant
under section 101(a)(27)(C) of the act as a native of Venezuela.
Discussion: Upon consideration of the entire record it is concluded
that subject's appeal should be sustained and that the application
should be granted.
The applicant is a 17-year-old unmarried female, a native and citizen
of Venezuela. Her application was denied by the district director,
Miami, on the ground that she is not a quota immigrant and that she does
not have a nonquota status under section 101(a)(27)(A) of the
Immigration and Nationality Act. The file shows that the applicant is
the legitimate child of W J and his wife, M J J , nee S ; that her
parents were admitted to the United States at the port of New York on
May 20, 1953, as nonpreference quota immigrants under the quota for the
Netherlands; and that she is residing with them.
Section 245 of the Immigration and Nationality Act permits the
adjustment of a nonimmigrant's status to that of a quota immigrant or a
nonquota immigrant under section 101(a)(27)(A). As found by the
district director, the applicant is not a nonquota immigrant under
section 101(a)(27)(A). Furthermore, by reason of her birth in
Venezuela, she might be admitted to the United States as a nonquota
immigrant under section 101(a)(27)(C) rather than as a quota immigrant.
Section 201(d) of the Immigration and Nationality Act provides that
nothing in that act shall prevent the issuance (without increasing the
total number of quota immigrant visas which may be issued) of an
immigrant visa to an immigrant as a quota immigrant even though he is a
nonquota immigrant. Section 202(a)(1) of that act further provides that
an alien child, when accompanied by his alien parent or parents may be
charged to the quota of the accompanying parent or of either
accompanying parent if such parent has received or would be qualified to
receive an immigrant visa, if necessary to prevent the separation of the
child from the accompanying parent or parents, and if the quota to which
such parent has been or would be chargeable is not exhausted for that
fiscal year.
For the purposes of adjustment of status under section 245, the
applicant's parents, with whom she makes her home in the United States
and who are aliens who have been lawfully admitted to the United States
for permanent residence, are regarded as accompanying the alien.
Section 202(a)(1) permits her to be charged against the quota of her
accompanying parents to prevent her separation from them. She is
therefore, eligible for adjustment of status under section 245 to that
of a quota immigrant, provided that a quota visa is immediately
available to her. Under section 203(a)(3), as a child of aliens
lawfully admitted for permanent residence, she is eligible for a
preference quota visa. Information from the State Department is to the
effect that a third preference quota visa under the quota for the
Netherlands is immediately available. Accordingly, the appeal will be
sustained and the application granted.
Order: It is ordered that subject's appeal from the order of the
district director denying her application under section 245 be sustained
and that her application be granted.
It is further ordered that the file in this case be returned to the
district director, Miami, for appropriate action.
Preference quota status -- Section 203(a)(1)(A) of the Immigration and Nationality Act -- Agent not disqualified as petitioner under 8 C. F.R. 204.2.
An agent is not disqualified under 8 C.F.R. 204.2 from petitioning
for preference quota status under section 203(a)(1)(A) of the
Immigration and Nationality Act in behalf of an entertainer even though
such petitioner is not the beneficiary's employer as the term is
customarily understood. Such agent may be regarded as a person,
institution, firm, organization, or governmental agency "desiring to
have an alien classified' within section 204(b) of the act.
Discussion: This case is before the central office for an advisory
opinion with regard to whether the beneficiary may be classified as a
first preference quota immigrant on a petition executed by the agency.
The petitioner is a theatrical agency, organized under the laws of
the State of New York. The beneficiary is a well-known ventriloquist
who has made various appearances on television and in theaters and other
places of entertainment in the United States. The use of the facilities
of an agent is the customary means in this field through which bookdings
are made. The petitioner as the beneficiary's agent is in communication
with buyers in the United States who desire to engage his services for
periods ranging from one night to four weeks per engagement. The
beneficiary's remuneration for these services will range from $650 to
$2,000 a week and under an arrangement between the petitioner and the
beneficiary the former will receive 10 percent of the beneficiary's
gross earnings as compensation for its efforts in securing employment
for him.
Section 203(a)(1) of the Immigration and Nationality Act provides for
preference to be given in the issuance of immigrant visas in the cases
of "qualified quota immigrants whose services are determined * * * to be
urgently needed in the United States * * *.' Section 204(b) of the same
act provides that any person, institution, firm, organization, or
governmental agency "desiring to have an alien classified' as an
immigrant under section 203(a)(1)(A) shall file a petition for such
classification of the alien. Section 204.2 of title 8 of the Code of
Federal Regulations requires that the petition under section 204(b)
shall be filed by the person, institution, firm, organization, or
governmental agency for whom the work, labor, or services are to be
performed.
In connection with the consideration of identical provisions in one
of the companion bills that preceded the enactment of H.R. 5678 into the
Immigration and Nationality Act, the Committee on the Judiciary in its
report on the proposed law commented:
The admission of any such immigrant is conditions upon the
approval by the Attorney General, in accordance with the procedure
set forth in section 204 of the bill, of a petition to import such
immigrant by an individual, institution, firm, corporation, or
governmental agency desiring to employ the alien or desiring the
services of the alien (S. Rept. 1137, to accompany S. 2550, 82d
Cong., 2d sess., p. 17).
The petitioner is not the beneficiary's employer as that term is
customarily understood. That fact, however, is not regarded as
disqualifying the agency from petitioning in his behalf. It was the
evident intent of Congress to permit the petition to be filed either by
a prospective employer or by one "desiring the services of the alien.'
The petitioner does, in fact, desire the services of the alien in the
United States, its commodity in trade is his services, and its income is
dependent upon the performance of his services in the United States to
fulfill engagments concerning which it is authorized to negotiate. It
is concluded, therefore, that the petitioner may be regarded as the
institution, firm or organization for which the services are to be
performed within the meaning of section 204.2 of the regulations and
that the petition that has been submitted may be regarded as a properly
executed petition.
Order: It is ordered that the district director in New York be
informed in accordance with the foregoing.
It is further ordered that the complete files be returned to the
district director above mentioned.
Special inquiry officer -- Substitution of -- Lack of opinion of original special inquiry officer who saw and heard witness not fatal.
(1) Where substitution of special inquiry officers is effected in accordance with 8 C.F.R. 242.53(e) any question with respect to the unavailability of the original special inquiry officer should be raised at the time of substitution and not in connection with an appeal to the Board of Immigration Appeals.
(2) While weight is given to the opinion of the special inquiry officer who saw and heard the witness, the Board is not bound by his opinion if the record does not support such opinion. Therefore, the absence of an opinion as to the credibility of the witness by the special inquiry officer who saw and heard him is not fatal, particularly where the witness' testimony stands uncontroverted on the record.
CHARGE:
Warrant: Act of October 16, 1918 -- After entry a member of the
Communist Party of the United States.
Discussion: This case is before us on appeal from the special
inquiry officer's decision of February 1, 1954, directing that the alien
be deported from the United States in the manner provided by law on the
charge contained in the warrant of arrest.
This record relates to a 48-year-old married female alien, a native
and citizen of Russia. She last arrived in the United States on
February 24, 1923, and was then admitted for permanent residence, at New
York. The record indicates that she has been married on three occasions
and that there are two children of the second marriage, both of whom are
now adults. The marriage which is now subsisting occurred in 1948. Her
deportability is predicated on a finding that she was a voluntary member
of the Communist Party of the United States in 1936.
Exhibit No. 4 of this record is a transcript of a sworn question and
answer statement made to an officer of the Immigration and
Naturalization Service at Philadelphia, Pa., on November 12, 1942. On
pages 1 to 11 of that statement appear the initials "M.P.' and it is
subscribed Mrs. M P . The record shows that the Service official to
whom that statement was made died in February 1950. In connection with
exhibit No. 4, the Government presented a female witness who identified
herself and testified that she was employed as a clerk-stenographer by
the Immigration and Naturalization Service at Philadelphia between March
2, 1942, and August 10, 1945; that in connection with her official
duties she had occasion to meet a M P whom she identified as being the
respondent; that she met the respondent during an interrogation of the
respondent by a Mr. L in which interrogation the witness participated as
a stenographer; that she took shorthand notes of the interview which
she subsequently transcribed and which were initialed on each page
except the last page which was signed by the respondent. This witness
identified exhibit No. 4 as a transcription of the interview given by
Mr. L to the respondent. She also testified that she saw the respondent
place her initials "M.P.' on each of pages 1 to 11 and subscribe the
document on page 12. In that statement, the respondent testified that
she attended rallies or meetings of the Communist Party in the
neighborhood where she resided, but denied that she was then or had been
prior thereto a member of the Communist Party. At the hearing she
refused, on the grounds of possible self-incrimination, to answer
questions with regard to the sworn statement or the statements contained
therein.
The Government also introduced a male witness who was a former member
and official of the Communist Party of the United States. In fact,
counsel has referred to him as "an important leader of the Communist
Party in the Philadelphia area from 1928 to 1937.' He has testified that
he served as an officer of the district committee and district bureau of
the Communist Party of the United States at Philadelphia, Pa., during
the time in question. He has further testified of his personal
knowledge that the respondent was a member of the Communist Party of the
United States during the period between 1935 and 1937; that she was a
member of the section committee of the north Philadelphia section of the
Communist Party of the United States; that she was the educational
director of that section and a member of the district educational
committee. He has also testified that the witness attended a
functionary's meeting of the Communist Party of the United States in
Philadelphia prior to April 1, 1936, at the Labor Lyceum at which he was
present; that he attended a district convention of the Communist Party
in Philadelphia during the early summer of 1936; that the respondent
was a delegate to this district convention; that she could not have
attended the convention had she not been a member of the Communist Party
of the United States; and that he also attended a section meeting of
the Communist Party of the United States in Philadelphia in 1936 at
which the respondent was present and at which only members of the
Communist Party of the United States or members of the Young Communist
League were present.
Counsel, both in his brief submitted in support of the appeal, and in
oral argument before this Board, has advanced several arguments which he
urges call for a reopening of the proceedings or a termination thereof.
First, it is contended that the fact that a special inquiry officer
other than the one who conducted the hearing and heard the evidence in
support of the charge contained in the warrant of arrest wrote the
opinion in this matter and made the findings of fact and conclusions of
law, that this procedure deprived the respondent of a fair and impartial
hearing, contrary to the requirements of the fifth amendment to the
Constitution of the United States. Second, it is contended that the
special inquiry officer was in error in drawing any conclusion from the
respondent's failure to deny membership in the Communist Party, at the
hearing. Third, it is further contended that the special inquiry
officer was in error in holding that the respondent's prior denial of
membership in the Communist Party precluded her from claiming the
privilege under the fifth amendment during the hearing. Finally, it is
contended that the evidence of record does not sustain the finding of
membership and the conclusion of deportability.
We disagree with counsel's contention that the substitution of
special inquiry officers in this case under 8 C.F.R. 242.53(e), as here
effected was unconstitutional and in violation of the respondent's right
to procedural due process under the fifth amendment to the Constitution
of the United States. The record shows that one special inquiry officer
presided at the hearing in which the Government's evidence was
introduced. When the Government's case had been completed, the special
inquiry officer granted a continuance of 3 weeks, at the request of
counsel, to permit counsel to obtain and introduce evidence to overcome
that of the Government. The record also shows that another special
inquiry officer conducted the continued hearing at the conclusion of the
3 weeks' period. The record further shows that at the outset of the
continued hearing the substituted special inquiry officer informed
counsel and the alien that the special inquiry officer who conducted the
original proceeding had returned to his official station at New York and
that the continued hearing had been assigned to him for completion.
Immediately thereafter, the substituted special inquiry officer stated
that he had familiarized himself with the record in the case, in
accordance with 8 C.F.R. 242.53(e).
It is clear that the original special inquiry officer is regularly
assigned to the New York area, but because of an unexpected increase in
the number of cases in the Philadelphia area was detailed there for a
specified period of time; that when the time of his detail had been
completed he was returned to his assigned area, was there under a new
schedule with cases to handle there. It is also clear that the second
special inquiry officer is the one regularly assigned to the
Philadelphia area, and that he familiarized himself with the record in
the case and so stated for the record, in accordance with the
regulations.
Furthermore, the record is so clear as to have rendered it readily
apparent to counsel that a substitution of special inquiry officers was
being effected at the opening of the continued hearing. No objection
was raised by counsel at the time, and under well accepted rules of
orderly procedure it would appear that an objection would have been
timely then rather than on appeal befor this Board.
In addition, and as previously pointed out, the continuance in the
case was granted by the original special inquiry officer at the request
of counsel. It was as a result of that continuance that the original
special inquiry officer became unavailable. As it turned out, the
continuance was pointless because counsel offered no testimony at the
continued hearing before the substituted special inquiry officer.
Counsel's main objection to the substitution in this case is that a
very important factor or function of the special inquiry officer is to
see and hear the witness. He submits that in this case, where the
entire case of the Government depended so completely on whether or not
they believed a single witness, the respondent had the right to that
examination of the witness unless for substantial reasons having to do
with substantial unavailability of the special inquiry officer, she had
to be deprived of it. He submits that in this case the first special
inquiry officer saw the witness, but that the second did not. He points
out that the first may have believed the witness but that he also may
not have; that he could have disbelieved everything the witness said if
we wanted to, but the second special inquiry officer, who never saw him,
had never had this factor of belief or disbelief before him; that all
he has was the bare record. Counsel claims that it is the lack of
opportunity of the second special inquiry officer to see and hear the
Government witness which results in failure of due process.
In connection with argument, we do not question but that a function
of the special inquiry officer is to weigh the credibility of the
witness on the basis of what he has been and heard. It is true that we
can give weight to the opinion of the special inquiry officer as to the
credibility of the witness. However, it is also true that we are not
bound by his opinion in this respect if we find from an examination of
the record that the evidence thereof does not support that official's
opinion. Here, we have the entire evidence upon which a determination
can properly be made. Therefore, we feel the absence of an opinion as
to the credibility of the witness by the special inquiry officer who saw
and heard him is not fatal.
On the basis of the foregoing, we hold that the substitution of
special inquiry officers effected in this case was proper. We base such
decision on the narrow point that the question of the unavailability of
the original special inquiry officer was not raised when the new special
inquiry officer was substituted. It was not raised until this appeal.
It was then too late.
Next, we find that counsel's contentions as to alleged errors by the
special inquiry officer in connection with the respondent's invocation
of the privilege against self-incrimination and inferences arising
therefrom can properly be pretermitted. We conclude, as will
hereinafter be set forth, that the evidence of record fully establishes
that Mrs. C was a member of the Communist Party of the United States, as
found by the special inquiry officer.
We have carefully examined the entire evidence of this record. The
male Government witness was a leading member and official of the
Communist Party at the time in question. As such, he was in an eminent
position to acquire knowledge of the facts as to which he has testified.
The circumstances surrounding those facts are such as would reasonably
be expected to have created a lasting impression on him. Thus, we
cannot agree with counsel's claim that his testimony is not worthy of
belief because his recollection of the facts and events is fantastic and
beyond the realm of ordinary experience.
Moreover, this witness's testimony stands uncontroverted on this
record. He was subjected to rigorous cross-examination by counsel. A
continuance of the hearing was requested, and granted, for the purpose
of affording counsel an opportunity to obtain evidence to controvert his
testimony. However, none was produced at the continued hearing.
In and of itself, the testimony of this witness constitutes
reasonable, probative, relevant and material evidence that the
respondent was a member of the Communist Party of the United States in
1936. It suffices to sustain the finding of membership made by the
special inquiry officer.
On the basis of the foregoing, we concur in the conclusion of
deportability reached by the special inquiry officer.
Finally, no request for discretionary relief was made of the special
inquiry officer. We fail to find that any such request has been made in
connection with this appeal. Therefore, no further questions remain to
be decided. Accordingly, we will dismiss the appeal.
Order: It is ordered that the appeal be and the same is hereby
dismissed.
Evidence -- Privileged communications as between husband and wife and physician and patient -- Privilege may not be claimed in deportation hearing -- Privilege may be waived.
(1) The testimony of a physician of the United States Public Health Service in a deportation hearing is competent and not privileged since he is performing a duty provided by applicable law and regulations and the ordinary relationship of physician and patient does not exist.
(2) Privilege may not be claimed with respect to the introduction in evidence at a deportation hearing of the sworn statement of the respondent's husband and the testimony of her physician since strict rules of evidence applicable in judicial proceedings do not obtain in administrative deportation proceedings.
(3) Where the alien's husband makes sworn statements concerning his wife's affliction prior to deportation hearing, at which time privilege is not claimed, the privileged nature of the communication may be considered waived and the statements are admissible in evidence at the deportation hearing.
CHARGES:
Warrant: Section 241(a)(1), I. & N. Act -- Member of excludable class of aliens at time of entry, to wit: Visa presented invalid because procured by fraud or misrepresentation
Section 241(a)(1), I. & N. Act -- Member of excludable class of aliens at time of entry, to wit: A person afflicted with tuberculosis (sec. 3, act of 1917)
Lodged: Section 241(a)(1), I. & N. Act -- Member of excludable class
of aliens, to wit: Not in possession of valid visa as required by
section 13(a) of the act of May 26, 1924.
Discussion: This appeal is from a decision of a special inquiry
officer at Seattle on October 12, 1953, finding deportability on the
second charge in the warrant of arrest and on the lodged charge, and
directing deportation pursuant to law.
The respondent is a 24-year-old female, native and subject of Japan
who was married to a United States citizen serving in the United States
Armed Forces in Tokyo on September 13, 1951. She first arrived in the
United States and was admitted for permanent residence at San Francisco,
Calif., on March 25, 1952, upon the presentation of a nonquota
immigration visa issued pursuant of section 4(a) of the Immigration Act
of May 26, 1924. She has been absent for temporary visits to Canada on
two occasions subsequent thereto and last entered the United States at
Niagara Falls during September 1952. The special inquiry officer has
carefully summarized the evidence, has noted the exceptions and
objections of counsel, and has concluded that deportability is
established by the record in the case.
In the initial hearing on September 28, 1953, after the respondent
had repled to a few questions, she declined to testify further upon
advice of her counsel. Over the objection of counsel there was placed
in evidence a transcript of sworn statements given by her on July 30,
1953, which were identified by the stenographer who recorded the
statements and by the Service officer before whom the statements were
given. There was also placed in evidence a transcript of sworn
statements given by the subject's husband on July 13, 1953. The hearing
was accorded in the State of Washington and the respondent's husband,
from whom she is separated, was living in the State of California. A
medical certificate over the signature to two physicians of the United
States Public Health Service, who certified on September 23, 1953, that
she was afflicted with pulmonary tuberculosis at time of entry, was
placed in evidence. At the request of counsel, the Government presented
one of the physicians for cross-examination. This witness identified
exhibit 4 and explained the basis for the findings therein. He asserted
that on the basis of X-rays of the alien's chest made in a certain
hospital, which X-rays with other data were presented to him for
examination, he reached a conclusion that the alien was afflicted with
pulmonary tuberculosis on March 25, 1952, at the time of her entry to
the United States for permanent residence; and that she was so
afflicted on the occasion of her last entry to this country in September
1952. She and her husband admitted knowledged of her affliction as
early as 1951. Predicated on this evidence, which has been carefully
examined, deportability as found by the special inquiry officer is
clearly established by the evidentiary data contained in exhibits 2, 3,
and 4, and the testimony of a United States Public Health Service
physician-witness. As previously stated, exhibits 2 and 3 are the sworn
statements of the subject and her husband made prior to this hearing.
Counsel who was present throughout the hearing, challenges generally
the admissibility of the evidence placed in the record to support the
grounds of deportability. It is contended that the sworn statements
placed in the record which were made prior to the hearings are hearsay;
and that the medical testimony given by a physician, and the sworn
statements of the respondent's husband are inadmissible on the ground
that they are privileged communications between husband and wife,
physician and patient. A local State statute has been quoted in support
of this contention. Two decisions, referred to by counsel, do not
support his allegation that the hearing was unfair.
This is an administrative deportation proceeding. The warrant of
arrest was served on August 5, 1953, and hearing was accorded throughout
under section 242 of the Immigration and Nationality Act. Pertinent to
the admissbility of sworn statements and other similar evidentiary data
placed in the record to establish deportability is title 8, C.F.R.,
section 242.54(b), which specifies that such evidence is admissible.
Strict rules of evidence applicable in judicial proceedings do not
obtain in administrative deportation proceedings. /1/
It is well established by current law and regulations that physicians
of the United States Public Health Service are medical officers
designated for conducting physical and mental examinations of aliens
arriving, and within the United States, and aliens abroad, when such
examinations are required, and for giving medical information to
immigration officials (sec. 234 and 235, Immigration and Nationality
Act, and appendix to 8 C.F.R., p. 1281 (title 42, Public Health, pt.
34, medical examination of aliens)). /2/ The current laws and
regulations are binding upon the immigration authorities (Bilokumsky v.
Tod, 263 U.S. 149 (1923); Sibray v. United States, 282 Fed. 795; (C.
C.A. 3, 1922); and Bridges v. Wixon, 326 U.S. 135 (1945)).
Sworn statements, affidavits and other data, if relevant and properly
identified, may be received in evidence where the affiant or deponent is
not readily available to testify and under other situations and
circumstances (Bilokumsky v. Tod, supra). A reasonable opportunity to
cross-examine witnesses should be accorded the alien (Gonzales v.
Zurbrick, 45 F.(2d) 934 (C.C.A. 6, 1930)). That opportunity has been
given herein. The physician-witness was presented in the hearing and an
opportunity to take depositions from the alien's husband was declined by
counsel. We find the requirements of the statute were met (Singh v.
District Director, 96 F.(2d) 969 (C.C.A. 9, 1938)). A hearing is not
unfair merely because a witness is not produced for cross-examination
because of unavailability (Bilokumsky v. Tod, supra).
The objection of counsel to testimony of the physician-witness in
this case on the ground of competency or privilege, is found to be
without merit, because the relationship of physician and patient does
not exist in the situation here. The physician-witness, who has
testified, was merely performing a duty provided by applicable law and
regulations. He was competent to testify and no privilege can be
claimed in regard to his testimony. Moreover, it is repeated that the
technical rules of evidence observed in judicial proceedings are
inapplicable in an administrative tribunal.
Counsel objects to the reception in evidence of the sworn statements
of the alien's husband which were given by him on July 13, 1953, on the
ground that the admission of such evidence violates the policy rule of
privilege in that husband and wife are not permitted to testify against
each other. Counsel refers to the case, Blau v. United States, 340 U.
S. 332 (1951), a criminal case in which a husband-defendant did not
disclose the whereabouts of his wife, a desired witness, on the ground
of privilege. The other case cited, Cahan v. Carr, 47 F.(2d) 604 (C.C.
A. 9, 1931) is a deportation case, considered on an application for a
writ of habeas corpus. In the decision last mentioned, the issue
involved the admission of the testimony of a wife against her husband
concerning a telephone communication relating to an entry. The court
observed that on grounds of public policy, a wife is not permitted to
testify against her husband. It was decided that her testimony was
cumulative only, and did not render the hearing unfair (Bilokumsky v.
Tod, supra).
We note that there is no congressional legislation restricting the
subject matter in which husband and wife may or may not testify in
administrative deportation proceedings. It is well established that in
judicial proceedings the common law principles of privilege control and
not local statutes, where a communication between husband and wife is
confidential. In judicial proceedings, civil or criminal, the court
determines from the nature of the communication the competency of the
witness and the right to the privilege (Wolfle v. United States, 291 U.
S. 7 (1934); Lutwak v. United States, 344 U.S. 604 (1953); and Blau v.
United States, supra).
In this connection, it is interesting to note that the confidential
nature of a communication between husband and wife is destroyed where it
is made in the presence of a third person (Wolfle v. United States,
supra); Jacobs v. United States, 161 Fed. 694 (C.C.A. 1, 1908); United
States v. Mitchell, 137 F.(2d) 1006 (C.C.A. 2, 1943)). The privilege
may be waived. This alien and her husband had already divulged matters
pertaining to the misrepresentations made to obtain an immigration visa
for her (in 1951 and 1952) at the time this hearing began. She had
given sworn statements before an officer of the Service July 30, 1953;
and he had given sworn statements on July 13, 1953. They had not claimed
privilege. The matters contained in exhibit 3 (sworn statements of
husband) were no longer confidential at the time the hearing herein
began. Moreover, if this alien was at any time entitled to the
privilege attaching to confidential communication, that privilege had
been presumably waived at the time the instant proceeding began (Fraser
v. United States, 145 F.(2d) 139 (C.C.A. 6, 1944), cert. den. 324 U.S.
849). We conclude that exhibit 3 was properly admitted in evidence in
this case.
This respondent has failed to testify without legal justification.
We have heretofore observed that where there is a duty to speak, such as
the situation here, silence is evidence of a most persuasive character
(Matter of K , A-5204481, Int. Dec. No. 427 (B.I.A., March 18, 1953)).
This alien and her husband participated in a scheme to deceive the
American consul and the Service for the purpose of effecting her entry
to the United States. "As an attribute of its external sovereignty, the
United States, acting through Congress and the executive departments,
may exclude and deport any or all aliens * * * and may admit them or
permit them to remain on such terms and conditions as it undertakes to
prescribe' (Chew v. Colding, 344 U.S. 590, (1953); Carlson v. Landon,
342 U.S. 524 (1952); and Harisiades v. Shaughnessy, 342 U.S. 580
(1952). This administrative hearing, accorded under section 242 of the
Immigration and Nationality Act, provided for the alien procedural due
process (Marcello v. Ahrens, 113 F.Supp. 22 (E.D. La., 1953)).
We find that counsel's objections are without merit and that the
appeal should be dismissed.
Order: It is ordered that the appeal in this case be and the same is
hereby dismissed.
(1) Sercerchi v. Ward, 27 F.Supp. 437 (D.C. Mass. 1939); United
States v. Curran, 12 F.(2d) 639 (1926); Di Tomasso v. Martineau, 97
F.(2d) 503 (C.C.A. 2, 1938); Bilokumsky v. Tod, 263 U.S. 149.
(2) The Manual for Medical Examination of Aliens, Department of
Health, Education, and Welfare, Public Health Service, pt. IV,
subdivisions 9 and 10(g) read:
"9. Medical officers should give consular and immigration official
technical medical information and advice that will assist those
officials in discharging their duties.
"10. Upon the request of immigration authorities, medical officers
shall give a statement (in the form of a professional opinion or a
certificate, as required) on matters such as the following, supplying
specific and detailed supporting medical data when required for an
intelligent review of the statement:
* * * * * * *
"g. Whether an alien certified, subsequent to entry, as afflicted
with a class A or B condition was so afflicted at time of entry.'
Voluntary departure -- Ultimate grant dependent upon facts in individual case where alien here short period of time -- Seaman.
While Matter of M , 4, I. & N. Dec. 626, points out general
considerations to be applied in the grant of voluntary departure, it is
not concerned with individuals who have dependent family ties in the
United States and should not be taken as an invariable rule. In each
instance the decision must be based on the merits or demerits of the
individual case. Even though marriages occur after the institution of
deportation proceedings, in the absence of some unusual factors,
departure without an order of deportation should be authorized because
of considerations due the spouse who is a citizen or a lawful resident.
Discussion: The Assistant Commissioner, Inspections and Examinations
Division, Immigration and Naturalization Service on February 24, 1954,
certified this case to the Board for final decision pursuant to the
applicable regulations. The issue involved is whether or not the
privilege of voluntary departure should be afforded the respondent.
The respondent, a 26-year-old married male, native and citizen of
Greece, has resided continuously in the United States since his
admission at Philadelphia, Pa., on February 21, 1952, as a seaman, at
which time it was his intention to reship foreign in pursuit of his
calling. The hearing officer upon conclusion of the hearing conducted
under the warrant of arrest found that the respondent is a person of
good moral character and was therefore eligible for the discretionary
relief of voluntary departure but concluded that such relief should not
be granted in view of the ruling in the Matter of M , 0402-16159, 4 I.
& N. Dec. 626, B. I. A., April 22, 1952.
Upon conclusion of the hearing conducted under the warrant of arrest,
the hearing officer entered an order directing the respondent's
deportation from the United States on the charge stated in the warrant
of arrest. Thereafter, on January 6, 1953, the hearing officer denied a
motion requesting reconsideration or in the alternative for entry of an
order granting voluntary departure and preexamination. On February 9,
1953, the hearing officer denied another motion requesting the
aforementioned relief. This Board on May 20, 1953, dismissed the appeal
from the aforementioned order of the hearing officer, concluding that
since the respondent had less than 5 years residence in the United
States when the warrant of arrest was served, the order of the hearing
officer was final. Subsequent thereto, two motions for reconsideration
were benied by the special inquiry officer on June 17, 1953, and January
4, 1954.
The respondent was taken into custody under the warrant on September
19, 1952. He was married to a citizen of the United States on October
17, 1952. A child was born on December 18, 1953. The wife, we are
informed, was but 16 years of age at the time of her marriage. She is a
very frail person who must depend upon her husband, the respondent, for
support.
The special inquiry officer felt himself bound by the decision of
this Board of April 22, 1952, in the Matter of M (supra). There we
pointed out general considerations to be applied in the grant of
voluntary departure. That decision was not concerned with a case of an
alien who had a dependent family in the United States. Moreover, the
decision was stated in broad and general terms, and we took pains to
point out that what was there said was not to be taken as an invariable
rule but that in each instance the decision must be based on the merits
or demerits of the case. Even though marriages occur after the
institution of deportation proceedings, in the absence of some unusual
factors we have felt that departure without an order of deportation
should be authorized because of consideration due to the wife, a citizen
or a lawful resident. In the instant case, there could be no doubt that
dictates of humanity and fairness to the young wife and her child
prescribe that the respondent ought to be given an opportunity to adjust
his immigration status as rapidly as possible so that he may continue to
fulfill his duties toward his family. The case having been certified to
us for consideration by the Assistant Commissioner, we have jurisdiction
to act. Under a recent change in policy, preexamination may also be
authorized.
Order: It is ordered that the outstanding order of deportation be
withdrawn and the alien be permitted to depart voluntarily from the
United States without expense to the Government, to any country of his
choice, within such period of time, in any event not less than 90 days,
and under such conditions as the officer-in-charge of the district deems
appropriate, conditioned upon consent of surety.
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.
It is further ordered that the alien's preexamination be authorized.
Preference quota status -- Section 203(a)(4) of the Immigration and Nationality Act -- Adoption at foreign consulate in this country of illegitimate son residing abroad not recognized.
The adoption of an illegitimate son residing in Portugal by a
naturalized United States citizen residing in New Jersey, formerly a
native and citizen of Portugal, which is effected at the Portuguese
consulate in New York, N. Y., is not recognized for the purpose of
according preference quota status under the immigration laws in the
absence of any showing that such a procedure would constitute a valid
adoption insofar as either the State of New York or the State of New
Jersey is concerned. (The facts in this case differ widely from those
presented in Matter of R , Int. Dec. No. 471.)
Discussion: The matter comes forward on appeal from the order of the
district director, New York, dated July 20, 1953, denying the visa
petition on the ground that the beneficiary is not considered to be a
son of the petitioner within the meaning of section 203(a)(4) of the
Immigration and Nationality Act and hence not entitled to preference
quota status.
The petitioner, a native and formerly a citizen of Portugal, became
naturalized as a citizen of the United States on September 21, 1938, and
is a resident of the State of New Jersey. He seeks preference quota
status on behalf of the beneficiary under the provisions of section
203(a)(4) which provides for a preference to, among others, sons of
citizens of the United States. The beneficiary is a native and citizen
of Portugal, born May 3, 1919, and married. The beneficiary appears to
be the illegitimate son of the petitioner.
It is asserted by petitioner that the beneficiary became his adopted
son by virtue of a procedure at the Portuguese consulate in the city of
New York, N. Y., on May 15, 1953 by which the petitioner adopted the
beneficiary under the provisions of the Portuguese law. The issue
therefore is whether the alleged adoption proceeding constitutes a valid
adoption for immigration purposes.
An adopted son is eligible for preference status under the provisions
of section 203(a)(4) of the Immigration and Nationality Act. Matter of
R , VP 3-18004, Int. Dec. No. 471 (1953). In that case however the
beneficiary was adopted by the petitioner in accordance with the
provisions of the civil code of Italy while both parties were in Italy.
In the instant case however at the time of the alleged adoption, the
beneficiary was in Portugal while the petitioner was a citizen of the
United States and a resident of the State of New Jersey who proceeded to
the Portuguese consulate at New York City for the purpose of adopting
this beneficiary. It appears therefore to be an attempt to perform an
adoption in the United States by going to the consulate of the country
of the birth of the beneficiary. The theory apparently is that the
fiction of the doctrine of extraterritoriality extends to this country
for the purposes of adoption. No authority has been cited to sustain
such a proposition.
In the United States adoption is unknown to the common law and exists
only by statute. /1/ According to some authority and probably the
better rule, foreign adoption statutes have no extraterritorial effect.
/2/ States safeguard the adoption procedure with many precautions and
the procedure laid down by statute must be strictly followed. /3/
In considering the provisions of the proposed Immigration and
Nationality Act of 1952, the subcommittee of the Committee on the
Judiciary gave considerations to provisions of the new immigration law
regarding a better method of keeping families of immigrants together by
affording a more liberal treatment of children. This subcommittee
stated that it was necessary to provide some safeguard in the law to
prevent a large number of fraudulent adoptions consummated solely for
the purpose of conferring nonquota status. /4/
In the instant case, the situation presented is that of a naturalized
citizen of the United States, a resident of the State of New Jersey, who
allegedly completed a valid adoption under Portuguese law by complying
with the provisions of the Portuguese law before the Portuguese
consulate in the city of New York. Absent any showing that such a
procedure would constitute a valid adoption insofar as either the State
of New York or New Jersey is concerned, it is not believed that
recognition may be given this alleged adoption so as to confer
preference status under the Immigration laws. It is believed that the
facts to the case are so widely different from those presented in Matter
of R (supra), as to make that decision inapplicable. Accordingly, the
visa petition should be denied.
Order: It is ordered that the appeal be and the same is hereby
dismissed.
(1) 2 C.J.S. 370.
(2) 2 C.J.S. 459.
(3) New Jersey Statutes Annotated, Adoption, sec. 9:3-1 to 9:3-11;
McKinney's Consolidated Laws of New York Annotated, Adoption, art. VII,
sec. 109 to 118-a (Domestic Relations Law).
(4) Report of the Committee on the Judiciary pursuant to S. Res.
137, S. Rept. 1515 (81st Cong., 2d sess.), p. 468.
Nonquota status -- Section 101(a)(27)(A) of the Immigration and Nationality Act -- Stepchild born out of wedlock.
Where the beneficiary of a visa petition was illegitimate under the
law of the place of his parents' marriage and of his birth, the
subsequent marriage of his mother and the petitioner does not create the
status of stepchild for immigration purposes within the definition of
"child' contained in section 101(b)(1) of the Immigration and
Nationality Act so as to qualify the beneficiary for nonquota status
under section 101(a)(27)(A) of the same act.
Discussion: The matter comes forward on appeal from the order of the
district director dated February 18, 1954, denying the visa petition on
the ground that the stepson was born out of wedlock and is not a "child'
as defined in section 101(b)(1) of the Immigration and Nationality Act.
The parents of the beneficiary were married on September 15, 1948, at
Sydney, New South Wales. However, the father of the beneficiary was
already married at that time, such prior marriage still being in
existence and never terminated. The beneficiary therefore was the issue
of a bigamous marriage. A letter dated October 28, 1953, from the
registrar general, Sydney, New South Wales, is to the effect that
inasmuch as the marriage was bigamous, the child, born in New South
Wales on January 16, 1950, is illegitimate. The petitioner, a
nativeborn citizen of the United States, married the mother of the
beneficiary on March 13, 1953, at Melbourne, Australia. A letter dated
October 21, 1953, from the Registrar General, Sydney, Australia,
indicates that in view of the fact that the prior marriage was bigamous,
the mother of the beneficiary was free to contract a marriage with the
petitioner.
Under section 101(a)(27) of the Immigration and Nationality Act, the
child of a citizen of the United States is a nonquota immigrant.
Section 101(b)(1) defines the term "child' as an unmarried person under
21 years of age who is a legitimate child, a stepchild, or a legitimated
child. In the instant case under the law of the place of the parents'
marriage and of the birth of the beneficiary, the child herein was
illegitimate. The subsequent marriage of the mother of the illegitimate
child and of the petitioner does not create the status of stepchild for
immigration purposes so as to qualify the beneficiary for nonquota
immigrant status. Matter of M , 0300-433026, Int. Dec. No. 441 (Atty.
Gen. 1953).
The eloquent plea of the petitioner in connection with the appeal has
been noted but the law leaves no room for the exercise of discretion in
this matter. In the event that the petitioner adopts the beneficiary,
he may submit a motion to reconsider for preference status on behalf of
the adopted child under the provisions of section 203(a)( 4) of the
Immigration and Nationality Act.
Order: It is ordered that the appeal be and the same is hereby
dismissed.
Single scheme of criminal misconduct -- Section 241(a)(4) of the Immigration and Nationality Act.
When an alien has performed an act which, in and of itself, constitutes a complete, individual and distinct crime then he becomes deportable when he again commits such an act, provided he is convicted of both. The fact that one may follow the other closely, even immediately, in point of time is of no moment. Equally immaterial is the fact that they may be similar in character or that each distinct and separate crime is a part of an over all plan of criminal misconduct. The exception contained in section 241(a)(4) of the Immigration and Nationality Act relates to a situation where there are two separate and distinct crimes but morally the transaction constitutes only a single wrong.
CHARGES:
Warrant: Act of 1940 -- No visa, reentry permit, or border crossing identification card.
Lodged: Act of 1952 -- Entered without inspection.
Act of 1952 -- Convicted of two crimes involving moral turpitude
since entry, to wit: Obtaining money under false pretense, and
obtaining money under false pretense.
Discussion: This case is before us on appeal from an order entered
by the special inquiry officer on February 12, 1954, directing the
respondent's deportation on the charge contained in the warrent of
arrest and on the second lodged charge. Counsel has submitted a
memorandum in support of the appeal.
The respondent is an alien who last entered the United States at
Niagara Falls, N.Y., on June 29, 1952. On November 22, 1952, he was
convicted in the Municipal Court, Wooster, Ohio, on his plea of guilty,
of the crime of "Obtaining money; false pretense'; he was sentenced to
pay a fine of $100 plus cost and to imprisonment for 60 days;
restitution was made and 30 days of the imprisonment were suspended.
The complaint charges that the respondent, on or about November 17,
1952, in Wayne County, Ohio, did unlawfully and with intent to defraud
obtain by making false pretenses certain specified sums of money from
three named persons, contrary to section 13104 of the Ohio General Code
(2911.01 Revised Code). On December 23, 1952, in the Mayor's Court
Village of Apple Creek, Ohio, respondent was convicted, on his plea of
guilty, of violation of section 13104 of the Ohio General Code. The
affidavit of complaint charged him with unlawfully and with intent to
defraud obtaining certain specified sums of money from named individuals
and business concerns. He was fined $100 plus costs; $75 of the fine
was suspended on condition of restitution; and he was sentenced to
imprisonment for 30 days. Respondent has testified that he served 30
days on both convictions and that the second trial and conviction
followed the completion of his serving the sentence under the first
conviction.
The first question presented by this appeal involves the question of
whether or not D made an "entry' within the purview of the immigration
laws, on the date and at the place specified in the preceding paragraph.
Counsel contends that he did not make such an entry, because the
departure which preceded it was accidental and unintentional. We have
carefully considered the entire evidence of record in this connection,
and find that the contention is without merit. The special inquiry
officer has found that the respondent's last departure from and reentry
into the United States occurred under such circumstances as to establish
that they occurred at a time when he was mentally alert and conscious of
what he was doing and, hence, were the result of his knowing and
volitional acts. We concur. Furthermore, in connection with the last
charge stated above, it is immaterial whether there was an entry in
1952. Deportability on this ground can be based on the original entry.
The second question raised on appeal involves the construction of
section 241(a)(4) of the Immigration and Nationality Act of 1952.
Specifically, the issue to be decided here is whether or not the two
crimes of which D has been convicted arose out of, "a single scheme of
criminal misconduct.' It is his contention that the solicitations were
pursuant to a scheme or pattern to raise funds for a single purpose and
that Congress, by use of the quoted words, gave expression to an intent
to exempt from deportation the malefactor whose misdeeds arose out of a
plan or design to commit a series of criminal acts reasonably
contemporaneous and more or less similar in character. Such
construction is not, in our opinion, permissible.
To us, the natural and reasonable meaning of the statutory phrase is
that when an alien has performed an act which, in and of itself,
constitutes a complete, individual and distinct crime then he becomes
deportable when he again commits such an act, provided he is convicted
of both. The fact that one may follow the other closely, even
immediately, in point of time is of no moment. Equally immaterial is
the fact that they may be similar in character, or that each distinct
and separate crime is a part of an overall plan of criminal misconduct.
We differentiate the foregoing situation from that wherein two crimes
flow from and are the natural consequence of a single act of criminal
misconduct. That is, we distinguish it from the case where technically
there are two separate and distinct crimes, but morally the transaction
constitutes only a single wrong. For example, a counterfeiter may be
indicted in one count for possessing a bill, and in another for passing
it, though he cannot pass it without having possession; so also, a
person might break and enter a store with intent to commit larceny and
in connection therewith commit an assault with a deadly weapon.
Those examples clearly illustrate what we hold to be crimes arising
out of a single scheme of criminal misconduct. However, with reference
to the last example, we owuld reach a different result if, after
breaking and entering and committing larceny in one store, the person
did the same thing in the adjoining store.
Finally, in this connection, it is clear that following D$03's
contention to its logical conclusion would result in theoretical
absurdities. By way of illustration, it would preclude deportation of
the alien who robs A on Monday, B on Tuesday, C on Wednesday, etc., all
in the same town, in the same manner and for the single purpose of
obtaining money.
The final argument advanced in this case is that the crimes of which
the respondent has been convicted do not involve moral turpitude. It is
urged that the misconduct partook of the nature of solicitation of funds
without proper license or credentials and that the leniency of the
sentences imposed impels the conclusion that the civil authorities did
not consider the deviation in a category of petty thievery.
This last contention is also without merit. The fact remains that D
has been convicted of two crimes. On the record, fraud is an ingredient
of those crimes. (Matter of C , A-5595280, B.I.A., October 12, 1953,
Int. Dec. No. 482). Accordingly, they involve moral turpitude (Jordan
v. DeGeorge, 341 U.S. 223 (1951)).
No further issues have been raised for our consideration. On the
basis of the foregoing, it is clear that D is deportable on the grounds
urged by the special inquiry officer. Accordingly, we will dismiss the
appeal.
Order: It is ordered that the appeal be and the same is hereby
dismissed.
Public charge within 5 years after entry -- Section 3 of the Immigration Act of 1917 -- Deportability not established where alien confined in State hospital for criminally insane as part of criminal proceeding.
The charge that the alien became a public charge within 5 years after entry is not sustained where the alien is confined in the Lima State Hospital, Lima, Ohio, for the criminally insane after indictment for crime. Detention in that hospital is equivalent to confinement in a penal institution and under Ohio law support cannot be collected for persons under indictment for crime.
CHARGE:
Warrant: Act of February 5, 1917 -- public charge within 5 years
after entry.
Discussion: The record relates to a 44-year-old male, a native and
citizen of Czechoslovakia who first entered the United States at the
port of New York, on August 19, 1946, at which time he was lawfully
admitted to the United States for permanent residence. That entry has
been verified. Subsequently he made a visit to Canada, and returned to
this country at Port Huron, Mich., onJune 2, 1947, when he was admitted
to resume permanent residence. That entry has been verified. The
record discloses that on December 20, 1951, respondent was committed
indefinitely to the Lima State Hospital, Lima, Ohio, by a Judge of the
Common Pleas Court of Cuyahoga County, where he had been indicted for
stabbing to kill or wound and carrying concealed weapon. He is still an
inmate of that hospital.
The Lima State Hospital has been designated as the hospital for the
criminal insane in the State of Ohio, and the respondent is in that
hospital because he is criminally insane. Respondent was sent to that
institution in accordance with the order of the court, and under
procedures designated by law. No demand was made upon the alien for
payment for his hospitalization because under Ohio law support cannot be
collected for persons under indictment for crime. It is evident that
when an accused person is sent to the Lima State Hospital, after
indictment for crime, the detention therein is part of the criminal
proceeding. Detention in this hospital is nothing more than the
equivalent to confinement in a penal institution, except that the insane
person is detained in the hospital for the insane, where the accused may
be given the special care required, rather than being detained in a jail
or penitentiary. It has been previously held that a person confined to
a penal institution is not regarded as a public charge within the
purview of the Immigration Act of 1917. Similarly, it must be concluded
that the confinement of respondent in the Lima State Hospital cannot be
used to sustain the immigration charge "became a public charge within 5
years after entry.'
There is another reason why the charge in the warrant of arrest
cannot be sustained. It has been held that in order to determine
whether an alien had become a public charge within 5 years after entry,
the following tests must be applied: (1) the State or other governing
body, must by appropriate law, impose a charge for the services rendered
to the alien; (2) the authorities must make demand for payment of the
charge upon these persons made liable under State law; and (3) there
must be a failure to pay for the charges, Matter of B , 56033/544, 3, I.
& N. Dec. 323. Such a demand has not been made upon the respondent for
the reason previously stated. In view of the foregoing, it is concluded
that the respondent is not deportable under the act of 1917 as a person
who became a public charge within 5 years after entry. Therefore, the
proceedings will be terminated.
Findings of Fact as to Deportability: Upon the basis of all the
evidence presented it is found:
(1) That the respondent is an alien, a native and citizen of
Czechoslovakia;
(2) That the respondent last entered the United States at Port
Huron, Mich., on June 2, 1947, at which time he was admitted to
resume permanent residence;
(3) That on December 20, 1951, respondent was admitted to the
Lima State Hospital, a hospital for the criminal insane, upon an
order of an indefinite commitment from the Common Pleas Court of
Cuyahoga County, after he had been indicted for stabbing to kill
or wound and carrying concealed weapon;
(4) That the respondent is still an inmate of the Lima State
Hospital.
Conclusion of Law as to Deportability: Upon the basis of the
foregoing findings of fact it is concluded:
(1) That under sections 19 and 20 of the act of February 5,
1917 respondent is not subject to deportation on the ground that
he became a public charge within 5 years after entry into the
United States from causes not affirmatively shown to have arisen
subsequent thereto.
Order: It is ordered that the proceedings in this case be
terminated.
The Board of Immigration Appeals has directed that this case be
certified to that Board, and the final order will be entered in this
case by the Board. You will be allowed 10 days in which to submit to
this office any brief, memorandum, or request for oral argument, which
you desire to have transmitted with the record in this case, for
consideration by the Board.
Upon consideration of the entire record, it is ordered that the
decision of the special inquiry officer terminating proceedings be and
the same is hereby approved.
Preference quota status under section 203(a)(1)(B) of the Immigration and Nationality Act -- Eligibility for admission of spouse who does not accompany principal applicant but follows to join within a short period.
A short delay which causes the spouse, who has been issued a visa under section 203(a)(1)(B) of the Immigration and Nationality Act, to arrive in the United States subsequent to the admission of her husband is not a proper basis upon which to predicate a finding of inadmissibility on the ground that she was not an accompanying spouse.
EXCLUDABLE:
Section 211(a)(4) -- No proper status under quota specified in
immigrant visa.
Discussion: The case comes forward on appeal by the district
director pursuant to 8 C.F.R. 236.16 from the decision of the special
inquiry officer finding the applicant admissible for permanent
residence.
The record relates to a native and citizen of Germany, 29 years old,
female, who arrived at the port of New York on February 16, 1954, ex-SS
United States, and applied for admission for permanent residence. She
presented a German passport valid to August 3, 1956, and an immigrant
visa issued by the American Consulate General at Frankfort, Germany,
under German quota, symbol T-2. This symbol indicated that it was
issued under section 203(a)(1) of the Immigration and Nationality Act as
the spouse of an immigrant whose services are needed urgently in the
United States because of the high education, technical training,
specialized experience, or exceptional ability of such immigrant and
substantially beneficial prospectively to the national economy, cultural
interests, or welfare of the United States.
Both the applicant and her spouse, Dr. G M , were issued visas under
section 203(a)(1) on December 30, 1953, by the American Consulate
General at Frankfort, Germany. Immediately upon the issuance of the
visa to him, the principal applicant left Germany by plane because of
the fact that his services were urgently needed by his prospective
employer in the United States, and he was admitted for permanent
residence on December 31, 1953. The applicant, however, was delayed
because of the necessity of liquidating the family possessions in
Germany before coming to this country and for this reason did not
accompany her husband but arrived approximately 6 weeks later. The
issue therefore is whether, in view of the intervening length of time
between the admission of the principal applicant, her husband, on
December 31, 1953, and the arrival of the instant applicant on February
16, 1954, the instant applicant is nonetheless eligible to come in as
the spouse accompanying the principal applicant.
Section 203(a)(1) of the Immigration and Nationality Act provides for
a preference up to the first 50 percent of each quota area for each year
(A) 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, and (B) to qualified quota immigrants who
are the spouse or children of any immigrant described in clause (A) if
accompanying him. The argument appears to be that since the phrase
"accompanying' normally in ordinary usage contemplates physically
accompanying and since the applicant in this case arrived after the
principal alien, her spouse, had been admitted to the United States
under section 203(a)(1), a question arises as to the admissibility of
the instant applicant.
Section 203(a) of the Immigration and Nationality Act sets forth the
allocation of immigrant visas within quotas. The determination of
quotas to which an immigrant is chargeable is set forth in section 202(
a) and this provision authorized various quota charges outside the usual
rules for the obvious purpose of avoiding separation of family members
insofar as possible. In the report to accompany H.R. 5678 /1/ it was
stated that the bill implements the underlying intentions of our
immigration laws regarding the preservation of the family unit. It is
noted that section 202(a) contains flexibility in determining the annual
quota to which an immigrant is chargeable where the alien child is
accompanied by his alien parent, if necessary, to prevent the separation
of the child from the accompanying parent, where the quota for the child
is exhausted and that for the parent is not. Section 12( a)(1) of the
1924 act contained similar provisions intended to avoid a separation of
family groups bound for the United States because of the fact that some
of the children were born in a country other than that of their parents.
In construing this provision it was held that the requirements in
section 12(a)(1) of the 1924 act that the child accompany its parents is
not a literal one but was, as has been pointed out, intended to avoid a
separation of family groups. /2/
In the instant case the record fully establishes that both the
applicant and the principal applicant, her spouse, were issued immigrant
visas under section 203(a)(1) of the Immigration and Nationality Act on
the same date and would have departed together except for the urgency of
the principal applicant's presence in the United States and the
necessity for the instant applicant to dispose of and liquidate the
property in Germany. There is no disputing the fact that the instant
applicant was eligible for the issuance of a visa as an accompanying
spouse. It is not felt that the short delay which caused the applicant
to arrive in the United States some 6 weeks after her husband is a
proper basis upon which to predicate a finding of inadmissibility on the
ground that she was not an accompanying spouse. It is believed that the
case falls entirely within the scope of the provision regarding
accompanying spouses which was intended to keep together the family unit
and that the applicant is admissible to the United States.
Order: It is ordered that the appeal by the district director be and
the same is hereby dismissed and that the applicant be admitted for
permanent residence.
(1) H. Rept. No. 1365 (82d Cong., 2d sess.) p. 29.
(2) See Matter of S , 56071/992, 1, I. & N. Dec. 93.
Visa petition -- Guardian of mentally incompetent citizen not eligible to file.
There is no provision in section 205 of the Immigration and
Nationality Act providing for the execution of a visa petition by a
guardian and no provision has been made in the pertinent regulations, 8
C.F.R. 205, providing for such petition in a case where the petitioner
is mentally incompetent.
Discussion: The matter comes forward on appeal from the order dated
January 26, 1954, for the district director, New York, denying the visa
petition on the ground that a petition by a guardian on behalf of a
mentally incompetent United States citizen is not regarded as a properly
executed visa petition.
The visa petition has been submitted by the guardian of C G G , a
naturalized citizen of the United States, who is stated to be mentally
incompetent. The visa petition seeks nonquota status on behalf of the
children of C G G , born in Italy on October 21, 1934, and December 15,
1935, respectively. There is no provision in section 205 of the
Immigration and Nationality Act providing for the execution of a visa
petition by a guardian and no provision has been made in the pertinent
regulations, 8 C.F.R. 205 providing for such a petition in cases where
the petitioner is mentally incompetent. By way of contrast, provision
is made in the regulations 8 C.F.R. 10.1(d) enabling the guardian to
file an application for a petition on behalf of a son, daughter, or ward
under 14 years of age. The absence of a similar provision in the
regulations as to the guardian of a mentally incompetent leads to the
conclusion that such a guardian is not eligible to file a visa petition.
Accordingly, the appeal will be dismissed.
Order: It is ordered that the appeal be and the same is hereby
dismissed.
Commuters -- System of admission not changed by Immigration and Nationality Act.
The practice of considering commuters as permanent residents has not been disturbed by the Immigration and Nationality Act of 1952, but rather it has been impliedly approved by the Congress since the legislative history of the act reveals a discussion without dissent.
EXCLUDABLE:
Act of 1952 -- Section 212(a)(20) -- No immigrant, visa no passport.
Discussion: This case is before us on appeal from a decision of the
special inquiry officer dated October 14, 1953, excluding the alien on
the above-stated ground. Appellant, a 40-year-old native and citizen of
Mexico, sought admission to the United States at Calexico, Calif., on
October 13, 1953, for 1 day in order to proceed to his regular
employment in this country. He was originally admitted for permanent
residence at Calexico on June 18, 1942, and has since worked in this
country and lived in Mexicali, B.C., Mexico.
The instant case clearly poses the question of whether the
Immigration Act of 1952 (66 Stat. 163; 8 U.S.C. 1101) has restricted,
changed or otherwise limited the long established system of commuter
admissions. Many aliens living near the border in Canada and Mexico
have long had the habit of commuting daily to employment in the United
States. Only after immigration was restricted under the act of 1924 (43
Stat. 153; 8 U.S.C. 201) was the present scheme of initially admitting
commuters as immigrants for permanent residence commenced by Immigration
Service General Order 86 (April 1, 1927). Since that time, it has been
continued administratively (Cf., 8 C.F.R. 110.6) /1/ which the system
being recognized in the legislative history of the Immigration Act of
1952. /2/ These discussions reveal no congressional dissatisfaction
with the commuter procedure.
Since section 101(a)(15)(B) /3/ of the act of 1952 has not changed
the statutory provisions governing nonimmigrant temporary visitors,
commuters may not be admitted under this section any more than they were
eligible for admission under section 3(2) /4/ of the act of 1924. Nor
has section 101(a)(15)(H) specifically changed the administrative
practice for commuter admissions. However, although section 101(a)(
15)(H) has added a new satutory class of nonimmigrants, alien commuters
as persons coming to the United States to engage in regular employment
are not included in this group of aliens coming here temporarily or to
perform temporary services.
In the past, commuters upon admission for permanent residence were
issued resident alien's border crossing identification cards (8 C.F.R.
166 /5/ ), were permitted to continue to reside abroad, and were treated
as returning resident aliens at each entry. The procedure for issuance
of border crossing cards is substantially the same under 8 C. F.R.
211.11 /6/ as under 8 C.F.R. 166. In addition, regulations issued under
authority of sections 103 and 211(b) provide for waiver of documents for
an alien returning after a temporary visit of six months or less in
Canada or Mexico, if a valid resident alien's border crossing
identification card is presented (8 C.F.R. 211.2(c)(1) /7/ ).
Under the 1952 act, the meaning of lawful admission for permanent
residence in section 101(a)(20) /8/ is interrelated to the definition of
the border crossing identification cards in section 101(a)(6) /9/ and
the grounds for readmission of aliens after temporary visits abroad
under section 211(b). Actually the phraseology of section 101(a)(20) is
very similar to 8 C.F.R. 176.101(n), /10/ under which the system of
commuted admissions flourished. Even if the definition of "residence'
in section 101(a)(33) /11/ is considered in conjunction with the
provisions of section 101(a)(20), it does not in fact change the status
of the commuter.
The phrase admission for permanent residence continues to refer to a
status by which the alien is granted the privilege of residing in the
United States permanently as an immigrant upon lawful admission. Thus,
a commuter who has been legally admitted as an immigrant is entitled to
receive a border crossing identification card so long as he continues in
that status. Similarly, a commuter is entitled to readmission under
section 211(b) /12/ as a returning resident while he maintains this
status and complies with conditions controlling the use of border
crossing cards. 8 C.F.R. 211.11, 211.2(c)(1).
It is therefore concluded that the practice of considering commuters
as permanent residents has not been disturbed by the act of 1952, but
rather it has impliedly received congressional approval, since the
legislative history of the act reveals a discusion without dissent.
Without clear statutory language requiring a mandatory change in the
commuter scheme, the law cannot be construed as prohibiting this
procedure. /13/
For these reasons, the ground of exclusion is not supported and the
appeal is sustained.
Order: It is hereby ordered that the appeal be sustained and the
alien admitted as a commuter.
(1) Aliens coming for employment while residing in contiguous
territories; classification. -- Aliens entering the United States to
engage in existing employment or to seek employment in this country and
who desire to continue to reside in foreign contiguous territory will be
considered as aliens of the immigrant class.
(2) S. Rept. 1515, 81st Cong., 2d sess., p. 535; S. Rept. 1137, 82d
Cong., 2d sess., p. 4; H. Rept. 1365, 82d Cong., 2d sess., p. 32.
(3) The term "immigrant' means every alien except an alien who is
within one of the following classes of nonimmigrant aliens --
* * * * * * *
B. An alien other than one coming for the purpose of study or of
performing skilled or unskilled labor or as a representative of a
foreign press, radio, film or other foreign information media coming to
engage in such vocation having a residence in a foreign country which he
has no intention of abandoning and who is visiting the United States
temporarily for business or temporarily for pleasure.
(4) When used in this Act the term "immigrant' means any alien
departing from any place outside the United States destined for the
United States, except * * *
(2) An alien visiting the United States temporarily as a tourist or
temporarily for business or pleasure.
(5) See appendix A.
See also, 8 C.F.R. 176.202(d), issued under act of 1924.
(6) See appendix B.
(7) Immigrant not required to present visas or passports. --
Immigrants of the following-described classes applying for admission to
the United States need not present visas or passports: * * *
(c) Aliens (including alien crewmen) of the following-described
classes who have been lawfully admitted for permanent residence, who are
otherwise admissible, and who are returning after a temporary absence:
(1) An alien who is returning to the United States after a temporary
absence of not more than 6 months in Canada or Mexico only, and who
presents a valid unexpired resident alien's border crossing
identification card.
(8) 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.
(9) The term "border crossing identification card' means a document
of identity bearing that designation issued to an alien who is lawfully
admitted for permanent residence, or to an alien who is a resident in
foreign contiguous territory, by a consular officer or an immigration
officer for the purpose of crossing over the borders between the United
States and foreign contiguous territory in accordance with such
conditions for its issuance and use as may be prescribed by regulations.
(10) "Lawful permanent resident of the United States' means an alien
who has been lawfully admitted into the continental United States, the
Virgin Islands, Puerto Rico, or Hawaii of permanent residence therein,
and who has since such admission maintained his domicile in the United
States.
(11) 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. * * *
(12) Notwithstanding the provisions of section 212(a)(20) of this
act, in such cases or in such classes of cases and under such conditions
as may be by regulations prescribed, otherwise admissible aliens
lawfully admitted for permanent residence who depart from the United
States temporarily may be readmitted to the United States by the
Attorney General in his discretion without being required to obtain a
passport, immigration visa, reentry permit or other documentation.
(13) Cf., Matter of D C , A-6924895, 3, I. & N. Dec. 519 (B.I.A.
June 29, 1949); Matter of F , A-6300563, 3, I. & N. Dec. 526n (Editor's
note) (Atty. Gen. Jan. 3, 1947). The fiction of a commuter's permanent
United States residence coinciding with his place of employment was
recognized judicially in Petition of Correa, 79 F.Supp. 265 (W.D. Tex.,
1948). In that case, however, the court pointed out that this residence
could not supply the need for an actual residence in this country if
such actual residence was specifically required by immigration and
nationality laws. The issue in the Correa case was one of
naturalization.
Immigration regulations concerning border crossing identification
cards as of June 27, 1944.
SEC. 166.1 Resident alien's border crossing identification card;
qualifications to obtain. -- A resident alien's border crossing
identification card may be issued to any alien who, upon application
therefor, submits satisfactory evidence that he (1) has been legally
admitted to the United States for permanent residence and has not
relinquished the status of a permanent resident, (2) has complied with
the applicable provisions of the Alien Registration Act, 1940, and (3)
has a legitimate purpose and reasonable need to make a temporary visit
or visits to Canada or Mexico, with no single visit to exceed a period
of 6 months: Provided, however, That no such card shall be issued nor
shall any such card previously issued be renewed unless the applicant or
holder thereof is a person who is permitted to depart from the United
States under the terms of laws, regulations, Executive orders, or other
governmental restrictions regulating the departure of aliens from the
United States in effect at the time application for such card or renewal
thereof is made. (Amended October 22, 1951, 16 Fed.Reg. 9633; May 30,
1952, 17 Fed.Reg. 4921.)
SEC. 166.4 Resident alien's border crossing identification card;
use. -- The rightful holder of a valid resident alien's border crossing
identification card issued under section 166.3 may present that document
in lieu of an immigration visa or reentry permit when applying for
admission at any land, water, or airport of entry in the continental
United States or Alaska as a returning legal resident after an absence
from the United States of not more than 6 months, provided that during
such absence he shall not have visited any foreign territory other than
Canada or Mexico. The presentation of a resident alien's border
crossing identification card shall not otherwise relieve the applicant
from establishing that he is not subject to exclusion from the United
States. (Amended May 14, 1950, 15 Fed.Reg. 2076; May 30, 1952, 17
Fed.Reg. 4921.)
Pertinent provisions of title 8, Code of Federal Regulations
concerning the resident alien's border crossing identification card.
211.11 Resident alien's border crossing identification card. -- (a)
Form. -- For the purposes of sections 211(b) and 212(a)(20) of the
Immigration and Nationality Act and this part, Form I 151 (Alien
Registration Receipt Card) or any outstanding valid Form I-187 (Resident
Alien's Border Crossing Identification Card) shall be accepted as a
resident alien border crossing identification card when in possession of
and presented by the rightful holder thereof during the period of its
validity.
(b) Use. -- The presentation of such card shall not relieve the
holder from establishing his admissibility to the United States under
the applicable provisions of the Immigration laws and regulations. A
resident alien's border crossing identification card may be used by an
alien who has been lawfully admitted to the United States for permanent
residence for the purpose of (1) facilitating determination of his
status as a returning legal resident when applying for admission at any
land or water port of entry or international airport in the continental
United States or Alaska after an absence from the United States of not
more than 6 months, during which absence he visited no foreign country
other than Canada, Mexico, or both, and (2) satisfying the documentary
requirements of sections 211(b) and 212(a)(20) of the Immigration and
Nationality Act and this part.
(c) Form I-151; who may apply. -- Any alien lawfully admitted to the
United States for permanent residence who is not in possession of a Form
I-151 may apply for such form in accordance with the provisions of
section 264.5 of this chapter.
Hearings -- Exclusion and expulsion -- Resident alien is entitled to hearing even though he arrives as a stowaway.
Notwithstanding the provisions of section 273(d) of the Immigration and Nationality Act, a resident alien who departs temporarily and is returning to an unrelinquished residence in the United States is entitled to a hearing before he can be deported and it makes no difference that the case arises in expulsion or exclusion proceedings. There is no distinction as to the residence of a seaman serving on American vessels returning as a seaman or returning as a stowaway. In either case, he is entitled to a hearing because his prior residence in the United States clothed him with the protection of the due process clause of the Fifth Amendment.
EXCLUDABLE:
Immigration and Nationality Act -- Stowaway.
Discussion: The case comes forward on appeal after hearing from the
order of the special inquiry officer dated January 21, 1954, holding
that as a matter of law he had no jurisdiction to grant a hearing or
enter an order in the case and remanding the case to the district
director with respect to the outstanding order to detain and deport the
alien.
Briefly, the record relates to a native and citizen of Honduras, 30
years old, male, who was lawfully admitted for permanent residence on
February 12, 1951. He married a citizen of the United States at Reno,
Nev., on July 1, 1953. On or about July 3, 1953, at San Francisco he
signed articles for a 9-month tour of duty on the M/V Sword Knot, a
vessel of United States registry, sailing between Japan and Korea. He
flew to Tokyo, Japan, and joined the vessel about July 7, 1953. In
September 1953, he became involved in a fracas with another crew member
as a result of which other crew members demanded his removal as mess
steward. The situation was presented to the American consul at
Yokohama, Japan, on September 28, 1953, and apparently arrangements were
made to have a Coast Guard hearing. However, the applicant did not
proceed with the orderly steps for a sign-off but stowed away on the SS.
President Wilson and last arrived at the port of Honolulu, T. H., on
October 5, 1953. He was ordered detained on board the SS. President
Wilson and ordered deported. Thereafter he was temporarily removed for
prosecution and was placed aboard the SS. President Cleveland pursuant
to the order to detain and deport with the understanding that the
American President Lines would return him to Honduras. He arrived at
San Francisco, Calif., on November 1, 1953, where he instituted habeas
corpus proceedings, a writ issued, and after hearing, the court
continued the matter of judgment, for the purpose of having the Service
determine whether, under all the facts in the case, a special inquiry
officer had jurisdiction to make any appropriate order in the matter.
Section 235(a) of the Immigration and Nationality Act provides that
the inspection of all aliens, including alien crewmen, seeking admission
or readmission to or the privilege of passing through the United States
shall be conducted by immigration officers except as otherwise provided
in regard to special inquiry officers. Section 235( b) provides that
every alien (other than alien crewmen) who may not appear upon primary
inspection to the examining immigration officer at the port of arrival
to be clearly and beyond a doubt entitled to land shall be detained for
further inquiry to be conducted by a special inquiry officer, except
prejudicial entry cases, /1/ and stowaways. /2/ The issue presented is
whether notwithstanding section 273(d) it would constitute a denial of
procedural due process to order this alien, who had previously been
lawfully admitted for permanent residence, detained on board and
deported without a hearing.
The applicant testified that he first entered the United States in
November 1941 as a seaman and since that time has made numerous entries
as a seaman and was admitted for permanent residence on February 12,
1951. He testified that he worked for the Military Sea Transport
Service from 1944, and since that time has sailed on ships only of
United States registry. Between voyages he considered his home to be
San Francisco. He testified that in 1942 he was torpedoed. On
September 14, 1951, he filed a declaration of intention in the district
court of the United States, San Francisco, Calif., and married a United
States citizen on July 1, 1953. The evidence accordingly establishes
that since 1944 the applicant has maintained residence in the United
States and has had lawful permanent residence since February 1951. His
service at sea since 1944 has been aboard vessels of United States
registry.
It is well established that if an alien is a lawful permanent
resident of the United States and remains physically present there, he
is a person within the protection of the fifth amendment. He may not be
deprived of his life, liberty or property without due process of law.
Before his expulsion he is entitled to a notice of the nature of the
charge and a hearing before an executive or administrative tribunal.
The constitutional status of an alien who as a lawful permanent resident
of the United States, is protected by the due process clause of the
fifth amendment remains unchanged upon his return aboard a vessel of
American registry, with its home port in the United States, after
completion of a voyage outside the United States made by the alien as a
seaman on such a vessel. /3/
It has also been held that a resident alien seaman, even though never
lawfully admitted for permanent residence, is nonetheless entitled to a
hearing and cannot be detained on board without notice of the charges
against him. In Roggenbihl v. Lusby, /4/ the court declared that the
gist of the Supreme Court's holding in the Chew case was that a foreign
voyage by a seaman on a vessel of American registry with a home port in
the United States does not terminate the constitutional status which he
enjoyed prior to the voyage. The court further stated that while on
board his ship on its return to an American port the resident alien
seaman was regarded, at least for constitutional purposes, not as an
entrant alien, but as an alien physically although unlawfully resident
in the United States and that the voyage is not to be regarded as an
interruption of continual physical presence in the United States.
Further, that an alien who has not entered clandestinely and who has
remained in the country for some time and has become subject to its
jurisdiction and a part of its population cannot be taken into custody
and deported without notice or hearing, even though it is alleged his
presence here is illegal. /5/
It may therefore be taken as settled that a resident alien who
departs temporarily and is returning to an unrelinquished residence in
the United States is entitled to a hearing before he can be deported,
and it makes no difference that the case arises in explusion or in
exclusion proceedings. We see no distinction as to the residence of a
seaman serving on American vessels returning as a seaman or returning as
a stowaway. In either case, he is entitled to a hearing because his
prior residence in the United States clothed him with the protection of
the due process clause of the Fifth Amendment; Kwong Hai Chew v.
Colding, 344 U.S. 590 (1953). /6/
In this case, as has already been pointed out, the applicant has been
an alien resident seaman since 1944 and a permanent lawful resident
since February 1951. He has a wife in this country and has never
evinced the slightest intention of abandoning his residence in this
country. /7/ On the facts of this case, we feel justified in
"assimilating' the applicant's status for constitutional purposes to
that of a continuously present alien resident entitled to a hearing at
least before an executive or administrative tribunal (Kwong Hai Chew v.
Colding, supra). It is accordingly concluded that the alien was
properly granted a hearing before a special inquiry officer and that the
special inquiry officer had jurisdiction to render an appropriate order
in the case.
In connection with the appeal, we shall also dispose of the
substantive matters relating to the application. The applicant is
returning without a valid immigrant visa or a reentry permit to his
lawful permanent residence after a temporary absence. Were no other
obstacle present, he might be considered for the discretion contained in
section 211(b) of the Immigration and Nationality Act in order to waive
the lack of documents. However, he is unquestionably inadmissible as a
stowaway under section 212(a)(18). There is no discretion to waive the
stowaway ground except under section 212(c) of the Immigration and
Nationality Act, and this applicant does not possess the 7 years lawful
permanent residence required to make him eligible for consideration of
this form of discretionary relief. The altercation on board the M/V
Sword Knot and the disinclination to face a Coast Guard hearing does not
render his stowing away or his entry involuntary. Accordingly, we find
the applicant to be inadmissible both on the stowaway charge and on the
documentary charge of no visa. We shall, however, grant the alien
permission to reapply for admission after exclusion and deportation.
Order: It is ordered that the alien be excluded as a stowaway and as
a person not in possession of a valid immigrant visa.
It is further ordered that permission to reapply after exclusion and
deportation be granted.
(1) Sec. 235(c), Immigration and Nationality Act.
(2) Sec. 273(d), Immigration and Nationality Act provides:
"* * * The provisions of section 235 for detention of aliens for
examination before special inquiry officers and the right of appeal
provided for in section 236 shall not apply to aliens who arrive as
stowaways and no such alien shall be permitted to land in the United
States, except temporarily for medical treatment, or pursuant to such
regulation as the Attorney General may prescribe for the ultimate
departure or removal or deportation of such alien from the United
States.'
(3) Kwong Hai Chew v. Colding, 344 U.S. 590 (1953).
(4) 116 Fed. 315 (D.C. Mass. 1953).
(5) The Japanese Immigrant case (Yamataya v. Fisher), 189 U.S. 86
(1902).
(6) Sec. 212(a)(18) of the Immigration and Nationality Act
specifically makes a stowaway inadmissible to the United States. Where
a stowaway without residence arrives in the United States, he is denied
a hearing and sec. 212(a) has no application. To give effect to sec.
212(a)(18), Congress may have realized that a stowaway with United
States residence was entitled to a hearing, but nonetheless wished to
put stowaways within the category of aliens inadmissible to the United
States.
(7) The continual residence and physical presence of the alien in the
United States distinguishes the case from the facts in Shaughnessy v.
United States ex rel. Mezi, 345 U.S. 206 (1953) where the alien simply
left the United States and remained behind the Iron Curtain for 19
months.
Deportation proceedings -- Effect of judgment of the court in criminal proceedings.
Adverse judgment of a court in a criminal proceeding is binding in a deportation proceeding in which deportation of the person who was the defendant in the criminal action is sought and in which the issue is one which was also an issue in the criminal case.
CHARGE:
Warrant: Act of 1924 -- No immigration visa.
Discussion: Appeal from order of the hearing officer requiring
respondent's deportation on the ground stated above. Voluntary
departure was denied on the ground that respondent was not statutorily
eligible.
Respondent is a 36-year-old single male, a native and citizen of
Canada, who was admitted to the United States in 1952 in possession of
an immigration visa issued at Windsor, Ontario, Canada. The Service
urges that this visa was procured by false statements as to respondent's
financial assets; that a visa so obtained is invalid; and that one who
presents such visa legally has no visa and is deportable on the ground
stated above. As to deportability, the sole issue presented is whether
a visa was obtained by false statements.
The pertinent facts are stated in count II of a two-count indictment
filed September 16, 1952 in the United States district court at Detroit,
Mich., charging respondent with violation of sections 1546 and 3238 of
title 18, U.S.C. This count states that the respondent, C Z , "did
knowingly accept and receive nonquota immigration visa No. 2993 from the
American consul at Windsor, Ontario, Canada, knowing the same to have
been procured by means of a false claim and statement in an application
therefor, to wit: That he had an account with the Provincial Bank,
Windsor, Ontario, Canada, since April 1942 and that balance in that
account as of January 5, 1952, was $3,853.16 whereas, the said C Z well
knew that he did not have' that sum on deposit, but had only $1,300 on
deposit in an account which was opened a few days after January 5, 1952;
and that the respondent did knowingly and willfully use the said visa
in gaining admission to the United States.
On October 24, 1952, respondent pleaded guilty of the offense of
violating sections 1546 and 3238 of title 18, U.S.C. as charged in the
indictment. Respondent was given a sentence of 1 year suspended for a
period of 3 years. The first count which was laid under section 1001 of
18 U.S.C. charging respondent with submitting a false writing to a
Government agency was dismissed.
Counsel contends that the judgment of the court in the criminal
action is not binding in this deportation proceeding on the question as
to whether respondent's visa was procured by false statements. He urges
that the misrepresentations were not material and that it should not
therefore be found that the visa was obtained by fraud.
We shall first examine generally the issue as to what effect a
judgment of the court in the criminal proceeding should have in a
deportation proceeding in which deportation of the person who was the
defendant in the criminal action is sought and in which the issue is one
which was also an issue in the criminal case. Local 167, I.B.T., etc.
v. United States, 291 U.S. 293, was an appeal by defendant in a civil
action wherein the Government of the United States had been successful
in obtaining a decree from the United States district court enjoining a
conspiracy concerning interstate commerce. Twenty-nine of the
defendants in the civil action had been previously convicted in a
criminal prosecution. In the civil case, these convicted defendants
denied all the material allegations of the Government's petition which
contained "allegations identical with those of the indictment as to the
conspiracy and the means used to carry it into effect.' The district
court struck out as sham the denials of conspiracy prior to the
commencement of the criminal prosecution. The Supreme Court ruled:
The judgment in the criminal case conclusively established in
favor of the United States and against those who were found guilty
that within the period covered by the indictment the latter were
parties to the conspiracy charged. The complaint in this suit
includes the allegations on which that prosecution was based. The
defendants in this suit who had been there convicted could not
require proof of what had been duly adjudged between the parties.
And, to the extent that the answers attempted to deny
participation of convicted defendants in the conspiracy of which
they had been found guilty, they are false and sham and the
district court rightly so treated them.
In the case of United States v. Accardo, 113 F.Supp. 783 (D.N.J.),
aff'd, 208 F.(2d) 632 (C.A. 3, 1953), the court held that a plea of
guilty on a criminal charge in a Federal court constituted an estoppel
of record which the person convicted could not be heard to deny in a
subsequent civil proceeding for revocation of his naturalization. (See
also Sunshine Anthracite Coal Co. v. Atkins, 310 U.S. 381, 402, 403;
United States v. American Precision Products Corp., 115 F.Supp. 823 (D.
N.J., 1953); Austin v. United States, 125 F.(2d) 816, (C.C.A. 7, 1942);
Freedman on Judgments, Vol. 2, Fifth Ed., 1925, sec. 657).
In immigration proceedings the rule is likewise firmly settled that
insofar as matters of deportability are concerned, we will not go behind
a record of conviction to determine the guilt or innocence of the person
convicted (Matter of G , 56040/547, 1, I. & N. Dec. 8, 12).
Hartford Accident and Indemnity Co. v. Jasper, 144 F.(2d) 266 (C.C.
A. 9, 1944) cited by counsel, does not appear to be contradictory of the
precedents we have cited.
The Cases of Chantangco v. Abaroa, 218 U.S. 476 (1910) and Stone v.
United States, 167 U.S. 178 (1897), cited by counsel in support of his
position that a judgment in a criminal action does not create an
estoppel, are distinguishable from the precedents we have cited because
in each of the cases cited by counsel, the original adjudication was an
acquittal. It is well established that an acquittal in a criminal case
will not bar a subsequent action in a civil matter (Lewis v. Frick, 233
U.S. 291 (1914); Helvering v. Mitchell, 303 U.S. 391; Freeman on
Judgments, vol. 2, Fifth Ed. 1925, sec. 657; United States v. Accardo,
supra).
We must now determine what effect the specific judgment rendered
against respondent in the criminal action should have in this
deportation proceeding. Section 3238 of Title 18 U.S.C. provides for
the trial of offenses committed out of the jurisdiction of the district
in which the offender is found. It is not material to this discussion.
The portion of section 1546 with which we are concerned provides:
Whoever, knowingly forges, counterfeits, alters, or falsely
makes any immigrant or nonimmigrant visa, permit, or other
document required for entry into the United States, or utters,
uses, attempts to use, possesses, obtains, accepts, or receives
any such visa, permit, or document, knowing it to be forged,
counterfeited, altered, or falsely made, or to have been procured
by means of any false claim or statement, or to have been
otherwise procured by fraud or unlawfully obtained; or * * *.
A review of cases concerned with the provision in question is not of
assistance in determining the material elements of the offense with
which the respondent was charged. The word "procure' means to obtain by
any means; to acquire; to gain; or get (Webster's New Collegiate
Dictionary Edition). To us, the natural import of the language used
indicates that to obtain a conviction, it is not sufficient merely to
show that a false statement was made in an application for a visa, but,
it must be shown that the false statement was one of the factors which
made possible the issuance of a visa; in other words, it was the false
statement of a material fact. The court must first find the existence
of a visa which was obtained by means of a false claim or statement
before there can be conviction.
In the instant case, it follows that the court in the criminal action
was faced with the question: Was the visa issued to respondent obtained
by false statement of a material fact? This is the very question before
us. The court found it established beyond a reasonable doubt that the
answer to the question was in the affirmative. May we, before whom
proof as to the issue by a mere preponderance of evidence is required,
find differently? We think not. We believe the precedents we have
cited set forth the rule we are required to follow. We find that the
district court ruled the visa used by respondent was obtained by false
statement of a material fact. We find respondent now estopped from
establishing that he did not so obtain the visa. We therefore conclude
the visa presented by respondent at the time of his admission was not
legally a visa and that the charge that he entered without a visa must
be sustained.
The hearing officer found respondent was not statutorily eligible for
discretionary relief on the ground he had failed to prove good moral
character because of his conviction on October 24, 1952, and the facts
on which the conviction is based. Warrant of arrest was served on
September 10, 1952. Application for voluntary departure was made on
November 13, 1952. The application should therefore be considered under
the laws and regulations then in effect (Matter of E , A-9557645 (Nov.
13, 1953), Int. Dec. No. 520). The arrests arising out of his
immigration difficulties have been his first and are the only blemishes
on his record. Good moral character is the sum of a person's actions.
While the performance of an act may stamp one as a person devoid of good
moral character, the circumstances under which the respondent's
involvement incurred; his reliance upon the advice of an "immigration
counselor'; the fact that sentence was suspended; and in view of his
good record generally, we believe that good moral character is
established and respondent is statutorily eligible for voluntary
departure. Since respondent had resided in the United States for less
than 5 years at the time of his application, we are without the power to
consider the advisability of granting discretionary relief (8 C.F.R.
151.5(e)). The case will therefore be remanded to the Service so that
the special inquiry officer, who has jurisdiction, may dispose of the
application for voluntary departure.
Order: It is ordered that action in accordance with the foregoing be
taken.
Crime involving moral turpitude -- Section 101(a) of the California Unemployment Insurance Act.
Conviction of violating section 101(a) of the California Unemployment Insurance Act is a conviction of a crime involving moral turpitude.
CHARGE:
Warrant: Act of 1924 -- No immigrant visa.
Discussion: This case is before us on appeal from the decision of
the special inquiry officer dated February 16, 1953, directing
deportation. Respondent, a 40-year-old native and citizen of Mexico,
last entered the United States near El Paso, Tex., on March 10, 1933.
Respondent is clearly deportable as an alien entering without a visa.
(Secs. 13, 14, act of 1924.)
Respondent has applied for suspension of deportation under section
19(c)(2)(a) of the act of 1917 on the ground that his deportation would
cause serious economic detriment to his citizen wife and eight citizen
children. Respondent's application for suspension was made in 1949. He
married his citizen wife on December 16, 1938. His wife and children
are all completely dependent upon respondent for support. The special
inquiry officer found that under the circumstances serious economic
detriment did exist. However, in order to be eligible for relief
through suspension, respondent must prove that he has been a person of
good moral character during the past 5 years.
On February 14, 1950, respondent was convicted in Municipal Court for
the City and County of Sacramento, Calif., of violating section 101(a)
of the California Unemployment Insurance Act. The information stated
that on March 31, 1949, respondent "willfully and unlawfully and with
intent to defraud, (did) collect unemployment benefit payments in the
amount of $90.00 for the period of February 2, 1949, to March 30, 1949,
inclusive while during that same period he was employed.' Respondent was
sentenced to 90 days' imprisonment or a fine of $200, with the fine
being paid.
The pertinent sections of the California Unemployment Insurance Act
(Stats. 1935, ch. 325, p. 1226, as amended; Deering's General Laws,
1943, Supp., Act 8780d) provides as follows:
SEC. 101. Willful false statement. It is a misdemeanor: (a)
Willfully to make a false statement or representation or knowingly
fail to disclose a material fact to obtain, increase, reduce, or
defeat any benefit or payment under the provisions of this act,
whether for the maker or for any other person or for the purpose
of lowering or avoiding any contribution required of the maker or
any other person or to avoid becoming or remaining subject to this
act * * *.
SEC. 9.2. When individual deemed unemployed. An individual
shall be deemed "unemployed' in any week during which he performs
no services and with respect to which no wages are payable to him,
or in any week of less than full-time work if the wages are
payable to him with respect to such week are less than his weekly
benefit amount. Authorized regulations as may be necessary shall
be prescribed applicable to unemployed individuals making such
distinctions as may be deemed necessary in the procedures as to
total unemployment, part-total employment; partial unemployment
of individuals attached to their regular jobs, and other forms of
short-time work. For the purpose of this section only the term
"wages' includes any and all compensation for personal services
whether performed as an employee or as an independent contractor.
(Amended by Stats. 1945, ch. 546, sec. 1; Stats. 1949, ch. 1441,
sec. 3.)
In People v. Armstrong, 100 C.A.(2d) 852, 224 P.2d 490 (1950), a
California district court of appeals ruled that the essential elements
of the offense defined in section 101(a) are an intent to defraud and
the utilization of the false statements for the purpose of perpetrating
the fraud and obtaining money benefits.
In People v. Haydan, 106 C.A.(2d) 105, 234 P.2d 720 (1951), the court
cited the Armstrong case and discussed section 101(a) as follows:
In comparing merely the words "with intent to defraud' with the
"knowingly' and "willfully,' there is a difference of meaning and
the latter do not necessarily include the former. However, if a
person willfully or knowingly submits a claim, knowing it to be
false, to the commission for the purpose of obtaining, increasing,
reducing or defeating any benefit under the act, he necessarily
does so to defraud. He evidences a purpose or willingness to
present a false claim to affect the payment under the act and
hence is presenting such claim with intent to defraud. Again, one
who presents a false claim with intent to defraud is willfully and
knowingly presenting such false claim with intent to obtain, etc.,
a benefit or payment under the act.
Since the Supreme Court has determined that offenses containing an
inherent fraud element involve moral turpitude, the instant conviction
is one for a crime involving moral turpitude (Jordan v. DeGeorge, 341
U.S. 223 (1951)).
It is noted in passing that counsel contends that, because respondent
was not represented by an attorney in the 1950 judicial proceeding,
respondent's conduct there was not an intelligent and valid plea or
conviction. However, since we are bound by the record of conviction, we
cannot go behind this judicial determination, Tillinghast v. Edmead, 31
F.(2d) 81 (C.C.A. 1, 1929); United States ex rel. Meyer v. Day, 54
F.(2d) 336 (C.C.A. 2, 1931). Also, the fact that respondent made
restitution is similarly immaterial.
Hence, because respondent was convicted of a crime involving moral
turpitude in February 1950, a finding of good moral character during the
past 5 years is impossible and he is statutorily ineligible for
suspension of deportation. Therefore, although respondent has resided
here for 20 years and has a United States citizen wife and eight citizen
children, discretionary relief through suspension is unavailable to him.
The appeal is accordingly dismissed.
Order: It is hereby ordered that the appeal be and the same is
dismissed.
Minister of a religious denomination -- Nonquota status under section 101(a)(27)(F)(i) of the Immigration and Nationality Act -- Eligibility where having pursued course of study during 2-year period immediately preceding the filing of petition.
(1) The Salesian Society of the Catholic Church is a religious denomination within the contemplation of section 101(a)(27)(F)(i) of the Immigration and Nationality Act.
(2) When a priest has been ordained as such in the Catholic Church, he is a minister of a religious denomination as contemplated by section 101(a)(27)(F)(i) of the Immigration and Nationality Act. The fact that he engaged in a course of study in furtherance of his vocation does not support a conclusion that he has abandoned his calling as a minister.
(3) A Catholic priest whose duties in the United States will include teaching in seminaries for the training of priests and brothers and teaching in a boarding school where he is required to teach some academic subjects besides teaching religion and doing religious work is regarded as seeking to enter the United States solely to carry on his vocation as a minister of a religious denomination.
PETITION:
Proceedings under section 101(a)(27)(F)(i) of the Immigration and
Nationality Act.
Discussion: Applicant appealed from order denying petition for
classification of L C as a nonquota immigrant under the provisions of
section 101(a)(27)(F)(i) of the Immigration and Nationality Act.
The petition of G J Z , secretary-treasurer of the Salesian Society,
San Francisco, Calif., for the classification of L C as an immigrant
under the provisions of section 101(a)(27)(F)(i) of the Immigration and
Nationality Act was denied by the district director of this Service at
San Francisco on the ground that it has not been established that the
prospective immigrant has been continuously for 2 years immediately
preceding the time of his application for admission into the United
States solely carrying on the vocation of a minister of a religious
denomination or that the prospective immigrant is seeking to enter the
United States solely for the purpose of carrying on the vocation of a
minister of a religious denomination, as provided by section 101(a)(
27)(F)(i) of the Immigration and Nationality Act.
The petition is now before this office on appeal from that decision.
With respect to the wording of the grounds for denial, it is noted
that the district director has used the wording "It has not been
established that the prospective immigrant has been continuously for at
least 2 years immediately preceding the time of application for
admission into the United States solely carrying on the vocation of
minister of a religious denomination, * * *.' Section 101(a)(27)(F)(i)
of the Immigration and Nationality Act reads:
An immigrant who continuously for at least 2 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; and (ii) the spouse or the child of any such
immigrant, if accompanying or following to join him;
The word "solely' is used only once in the act and appears to relate
to those who seek to enter the United States for the purpose of carrying
on the vocation of minister of a religious denomination, and that it can
not be construed to relate to the first part of the sentence "an
immigrant who continuously for at least 2 years immediately preceding
the time of his application for admission to the United States has been
* * * carrying on the vocation of a minister of a religious
denomination.'
The record establishes that the beneficiary was ordained a Catholic
priest on July 3, 1949 at Bollengo (Torino) Italy, and that he has been
a member of the Salesian Order for the past 10 years; that he was
admitted as a nonquota immigrant under section 4(e) of the Immigration
Act of 1924 at New York, N.Y., via SS. Conte Biancamanae on the 23d day
of June 1951, for a temporary period of 1 year, to pursue regular
theological courses in the Salesian College, Aptos, Calif.; that he was
granted appropriate extensions of stay until July 8, 1953, when he
departed from the United States at New York, N.Y., on the SS.
Constitution.
The questions at issue are: (1) that it has not been established
that he has been carrying on his vocation as a minister of a religious
denomination during the past 2 years and (2) that he is seeking to enter
the United States solely for the purpose of carrying on his vocation of
minister of a religious denomination. While there is no comment by the
district director as to how he arrived at his conclusion, it must be
assumed that his action in denying the petition was taken because the
beneficiary alien was carrying on a regular course of study at Salesian
Seminary during the past 2 years and that the certificate requesting his
services executed by Very Rev. A C SDB, Salesian Provincial, San
Francisco, Calif., dated July 15, 1953, states "It is now our wish to
have Father C return to the United States since his services are needed
for religious work in our parishes and schools.'
At the request of the district director, there was presented a
notarized statement as to just what the beneficiary alien's duties will
be, particularly, as they pertain to schools, as follows:
"The Salesian Society in California has charge of six parishes, two
seminaries for the training of priests or brothers, and two boarding
schools for boys of high school age. There is no question, I suppose,
about the religious nature of the work done by a priest in a parish or
in preparing young men for the priesthood and brotherhood. In the case
of boarding schools a priest who is given an assignment may be required
to teach some academic subjects besides teaching religion and doing
religious work. Nevertheless his teaching must not be considered
separately from religious work because the object of the schools is to
impart a Christian (religious) education. A priest teaching in a
boarding school also says daily mass, hears confessions, does youth
guidance work, and on Sundays helps with the religious services in
neighboring parishes.
"I believe that the Rev. L C will fulfill all the requirements of the
immigration law if he is assigned to any of the three positions I have
mentioned, namely, parish work -- work in a seminary -- work in a
Catholic boarding school. Nevertheless, since we wish to avoid all
unnecessary delay in obtaining the visa, we wish to state that we shall
abide by any limitation the law may require and assign the Rev. L C to
religious work strictly within the letter and spirit of the law,
according to your suggestions.'
In regard to the first question at issue, the representative sets
forth in his brief:
"With respect to the grounds given for denial, we wish to point out
that both the central office of the Immigration and Naturalization
Service and the visa division of the Department of State have, since
1924, conceded that a priest of the Catholic Church, by virtue of his
high calling to administer to the faithful and the requirement under
canon law that he celebrate holy mass daily, dispense the sacraments and
guide the spiritual lives of those whom he so serves, is entitled to the
nonquota status after practicing his vocation for the previous 2 years
as a deacon and priest. There has never arisen, previously, the
question that he cannot at the same time engage in either study or
teaching, in fact, such activities are a requisite of his priestly
capacity and, in fact, that of any minister of religion fulfilling the
high purpose of his earlier studies and training and ultimate
ordination.
"Thus, we contend that Father C did follow his priestly vocation in
celebrating mass daily, administering the sacraments and giving
religious instructions at either the Salesian College, the neighboring
parish churches or the two Salesian boarding schools for boys; that
thus he is entitled to the nonquota status for return here from Italy to
continue the practice of his vocation. It should be noted that all
religious denominations lay great stress on the preaching of sermons by
the respective ministers; this can hardly be considered less than
teaching religion to their congregations and no one would deem such
preaching as outside the sphere of the duties of a minister of religion.
"Upon returning to the United States we are assured that Father C
will devote his attention to the practice of his vocation as a Catholic
priest in the manner in which he, as a minister of religion, is required
to function.'
Without attempting to cover what has been conceded by Government
officials in the past, it appears that the argument presented has merit.
It is conceded that when a priest has been ordained as such in the
Catholic Church, he is required under canon law to celebrate holy mass
daily, dispense the sacraments and guide the spiritual lives of those
whom he so serves and that he is a minister of a religious denomination
as contemplated by section 101(a)(27)(F)(i). The fact that a priest
engages in a course of study in the furtherance of his vocation does not
support a conclusion that he has abandoned his calling as a minister or
that he has taken any action other than that required of him as a
minister or that he has engaged in an activity inconsistent with the
vocation of a minister. On the second question that the beneficiary
alien seeks to enter the United States solely to carry on his vocation
of minister of a religious denomination, by the same reasoning, he would
not be precluded from carrying on other activites such as teaching in
Seminaries for the training of priests or brothers or the teaching in a
boarding school where he is required to teach some academic subjects
besides teaching religion and doing religious work. It is represented
that a priest teaching in a boarding school also says daily mass, hears
confessions, does youth guidance work, and on Sundays helps with
religious services in neighboring parishes. The record shows a
reasonable need of the beneficiary's services by a recognized religious
denomination.
Upon consideration of the foregoing, it is concluded that:
(1) The Salesian Society of the Catholic Church is a religious
denomination within the contemplation of section 101(a)(27)(F)(i)
of the Immigration and Nationality Act.
(2) That the beneficiary alien, L C , is a minister of a
religious denomination within the purview of the said statute who
continuously for at least two years last past has been and who
seeks to enter the United States solely for the purpose of
carrying on his vocation of minister of a religious denomination;
and
(3) The services of the said beneficiary are needed by the
petitioner.
For the reasons stated, the appeal in this case will be sustained.
Order: It is ordered that the appeal of Rev. G J Z ,
secretary-treasurer of the Salesian Society, from the indicated order of
the district director of this Service at San Francisco denying the
petition for classification of L C as an immigrant under the provisions
of section 101(a)(27)(F)(i) of the Immigration and Nationality Act be
sustained.
It is further ordered that the petition and relating file in this
case be returned to the district director of this Service at San
Francisco for appropriate action in accordance with the foregoing.
Preference quota status -- Section 203(a)(3) of the Immigration and Nationality Act -- Proxy marriage -- Consummation must occur subsequent to marriage to meet requirements of section 101(a)(35) -- Valid in Italy, therefore legitimate children born out of wedlock.
(1) The requirements of section 101(a)(35) of the Immigration and Nationality Act have not been met where a proxy marriage is not consummated, even though the parties lived together as husband and wife and there was consummation prior to the marriage as evidenced by the birth of three children. Eligibility for preference status for the spouse under section 203(a)(3) of the Act is not established.
(2) Since proxy marriages are valid in Italy, the children heretofore
born out of wedlock are now legitimate and are entitled to preference
status under section 203(a)(3) of the Immigration and Nationality Act.
Discussion: The case comes forward on appeal from the orders dated
December 7, 1953, denying the visa petition on behalf of the alleged
husband on the ground that he does not qualify as a husband pursuant to
section 101(a)(35) of the Immigration and Nationality Act for the reason
that the proxy marriage has not been consummated; and denying the visa
petition on behalf of S B on the ground that he is not a legitimate
child in accordance with section 101(b)(1)(A) of the Immigration and
Nationality Act.
The petitioner is a lawfully resident alien and seeks a preference
for the beneficiaries under section 203(a)(3) of the Immigration and
Nationality Act as her spouse and child respectively. The record
indicates that the petitioner and V B attempted to become married in
Italy in 1943 but were unable to do so because of the insistence of
Italian authorities upon submission of certain Yugoslavian documents.
They commenced to live together as husband and wife and so held
themselves out to the community and as a result of this relationship
three children were born, the third of whom is the child beneficiary.
On May 17, 1951, the petitioner and her two oldest children were
admitted to the United States for permanent residence. The petitioner
and her husband were married by proxy marriage celebrated at Coli,
Piacenza, Italy, on February 27, 1953.
Section 101(a)(35) of the Immigration and Nationality Act provides
that the terms "spouse,' "wife,' or "husband' do not include a spouse,
wife, or husband by reason of any marriage ceremony where the
contracting parties thereto are not physically present in the presence
of each other, unless the marriage shall have been consummated. It is
true in the instant case that the parties lived together as husband and
wife and that there was consummation prior to the marriage as evidenced
by the birth of three children. However, at the time of this
consummation there was no marriage in existence, and such marriage did
not come into existence until February 27, 1953. The proxy marriage has
never been consummated and the marriage therefore fails to satisfy the
requirement of section 101(a)(35) for the purpose of making parties
thereto husband and wife. Accordingly, the visa petition will be denied
as to the husband.
It appears however that proxy marriages are valid in Italy. The
marriage therefore will be given the same effect as in the place of
celebration except for the limitation placed thereon by section 101(a)(
35) of the Immigration and Nationality Act as to a spouse for purposes
of immigration. Inasmuch as a valid marriage has been performed in
Italy, the children heretofore born out of wedlock are now legitimate
(Article 280, Italian Civil Code of 1942). Inasmuch as the child has
been legitimated under the laws of Italy, the visa petition will be
approved for the child, Matter of W , VP-423722, 4, I. & N. Dec. 209,
B.I.A., 1950.
Cognizance is taken of the brief filed by counsel and the New Jersey
case referred to therein but it is not believed that the decision of
that case furnishes precedent for an immigration matter which is
governed by a specific provision of law.
Order: It is ordered that the appeal be dismissed as to the petition
filed on behalf of V B .
It is further ordered that the petition be approved for preference
status under section 203(a)(3) on behalf of S B .
Suspension of deportation -- Section 244(a) of the Immigration and Nationality Act -- Exceptional and extremely unusual hardship.
"Exceptional and extremely unusual hardship' as used in section 244( a) of the Immigration and Nationality Act has not been established where the respondents have short residence in this country (8 years); their income will not be materially reduced if they return to Greece; there are no close family American citizen ties here; no business enterprise will be disrupted by their departure; and they own a home in Greece as well as in this country.
CHARGES:
Warrant: Act of 1924 -- Failed to maintain status -- Foreign government official (male).
Act of 1924 -- Failed to maintain status as members of family of
accredited foreign government official (both females).
Discussion: On May 19, 1953, by order of the Acting Assistant
Commissioner, these cases were certified to this Board for consideration
and final decision pursuant to 8 C.F.R. 6.1(c). The special inquiry
officer had entered orders on March 18, 1953, for the suspension of
deportation of these respondents. The special inquiry officer had
granted suspension of deportation to all of the aliens and had certified
the decision to the Acting Assistant Commissioner.
This record relates to a family of three aliens, husband, wife, and
adult daughter. The daughter is unmarried. The male and the younger
female respondents are natives and citizens of Greece and the older
female respondent is a native of Cyprus and now a citizen of Greece.
These respondents entered the United States together on October 9, 1945,
at the port of New York. The male alien was admitted pursuant to
section 3(1) of the Immigration Act of 1924 as a military attache of the
Greek Embassy in this city. The famale aliens were admitted as members
of his family.
He has testified that he terminated his status in December 1946, by
reason of his retirement from the military service of Greece. He,
having terminated his status as an accredited Government official, the
two members of his family, the female respondents, lost their exempt
status. Each and all of the respondents are deportable on the
respective warrants of arrest.
These respondents have applied for suspension of deportation under
the provisions of section 244(a)(1) of the Immigration and Nationality
Act. They have been in the United States continuously since 1945 and
have met the jurisdictional requirements of the statute under which they
applied. They have established good moral character for a period of at
least 7 years.
The special inquiry officer has found that these respondents have met
all of the requirements for suspension of deportation under the
applicable provisions of law, and has found that an exceptional and
extremely unusual hardship would result to these aliens should they be
deported or required to depart from this country. The factors
emphasized by the special inquiry officer concerning hardship are that
the younger female would lose her income of $130 per month and her
student work would be interrupted. Concerning the male alien, it has
been found that he would be required to dispose of his home here which
is now rented and his income would be reduced. Concerning the older
female alien, it has been found that she would be required to give up
her employment and her income would be reduced.
The quota for Greece is oversubscribed and these aliens cannot obtain
immigration visas within a reasonable time.
These respondents are all adults. The male respondent is retired
from the Royal Greek Army and receives $120 monthly as pension. He is
unemployed. He owns a home in Greece which is rented to the American
Embassy there. He and the adult female alien own a home here which is
rented to the Italian Embassy for $340 monthly. They estimate that
their interest in the home is of the value of $13,000. The adult female
is employed part time and earns about $1,000 annually. In addition to
the foregoing, the adult female alien has savings in the amount of
$2,200 and the male alien has a small amount of savings. The younger
female alien, age 22, is presently a student at George Washington
University and is completing her work on a master's degree (February
1954); and although she will lose an income granted to her by the Greek
Government for education in the amount of $130 per month, it appears
that this sum will be discontinued in all events upon the completion of
her basic education.
It appears from the foregoing discussion of the financial situation
of these aliens that they would have an income abroad which would be
approximately the same as the income they are receiving here except that
the adult female alien would be required to leave her employment here
from which she derives earnings in the sum of $1,000 annually. While it
is true that these aliens own a home in this country, they also own a
home in Greece. The pension which the male alien receives is from the
Greek Government. While it is true that these respondents have acquired
friends and acquaintances in this country, they have no dependents or
close family American citizen ties here. They have had a short period
of residence in this country of 8 years only. No business enterprise
would be disrupted by requiring them to leave this country. It is our
decision, after a very careful review of the record in this case and
after careful consideration of the matters emphasized by counsel in his
oral argument before us, that the record fails to establish that an
exceptional and extremely unusual hardship would result should these
respondents be required to leave the United States. Accordingly, we
find that suspension of deportation under section 244( a)(1) of the
Immigration and Nationality Act is not warranted, the aliens having
failed to establish that exceptional and extremely unusual hardship
would result if they were deported. /1/
Counsel has emphasized that these aliens are persons of excellent
character and that the younger female alien has won honors and
recognition in the school where she has been a student. We appreciate
the situation of the aliens and are sympathetic toward them. We have
carefully considered the record. We find that the aliens have
established eligibility for voluntary departure. The order entered by
the special inquiry officer will be withdrawn and they will be given an
opportunity to depart from the United States voluntarily.
Order: It is ordered that the order entered in this case for
suspension of deportation of the subject aliens on March 18, 1953, be
withdrawn.
It is further ordered that the aliens be permitted to depart from the
United States voluntarily without expense to the Government, to any
country of their choice, within such period of time, in any event not
less than 90 days, and under such conditions as the officer in charge of
the district deems appropriate.
It is further ordered that if the aliens do not depart from the
United States in accordance with the foregoing, the order of deportation
be reinstated and executed.
(1) Matter of S , A-5388920, B.I.A., August 13, 1953, Int. Dec. No.
491; Matter of H , E-089256, B.I.A., August 13, 1953, Int. Dec. No.
493; Matter of Z , A-2074510, B.I.A., August 13, 1953, Int. Dec. No.
494; Matter of M , A-5845821, B.I.A., September 4, 1953, Int. Dec. No.
496.
Failure to furnish notification of address -- Deportability under section 241(a)(5) of the Immigration and Nationality Act -- Definition of "willful' and "reasonably excusable' -- Voluntary departure.
(1) In the absence of definition and any indication to the contrary, the terms "willful' and "reasonably excusable' should be given their plain and ordinary meaning as used in the context in which they appear, namely, section 241(a)(5) of the Immigration and Nationality Act. Failure to furnish notification of address will not render an alien deportable even though such failure was intentional provided there was sufficient justification for such failure. The evidence of exculpatory circumstances must be established by credible evidence sufficiently persuasive to satisfy the Attorney General in the exercise of his reasonable judgment considering the proof fairly and impartially.
(2) Since the respondent is deportable under section 241(a)(5) of the act, he is ineligible for voluntary departure under section 244(e) thereof unless he also qualifies for suspension of deportation under section 244(a)(5) which he is unable to do because of lack of physical presence.
CHARGES:
Warrant: I. & N. Act -- Visitor for business -- failed to comply.
Lodged: I. & N. Act -- Failed to furnish notification of his
address.
Discussion: This is an appeal from the order of the special inquiry
officer finding the respondent deportable on the charges set forth above
and directing his deportation.
The respondent is a 28-year-old married male, a native of Jamaica,
British West Indies, subject of Great Britain, who last entered the
United States at the port of West Palm Beach, Fla., on July 21, 1950, by
plane, at which time he was admitted as a business visitor under the act
of 1924 to perform agricultural labor in this country. The record
clearly reflects that the respondent abandoned his exempt status and no
issue had been raised as to his deportability on the warrant charge.
Exception has been taken, however, to the special inquiry officer's
conclusion that the respondent is subject to deportation on the lodged
charge, and that he is ineligible for the privilege of voluntary
departure as a result thereof.
The testimony relating to the lodged charge is brief and will,
therefore, be quoted verbatim from the record.
Q. Did you report your whereabouts to the Commissioner of
Immigration and Naturalization at Washington, D.C., under the
address report program within 10 days of January 1, 1951 and 1952,
and within 30 days of January 1953, as required by the laws of the
United States?
A. No.
(Q. Why have you failed to comply with this provision of law?
A. I didn't hear about it until this year.
Q. Then why didn't you do it then?
A. (Alien remains silent.)
Q. Did you know about it during the first 30 days of January
1953?
A. Yes.
Q. Why didn't you do it?
A. I was afraid of being picked up.
Q. By the immigration officers?
A. Yes.
Q. Was that the only reason why you failed to report your
whereabouts during the first 30 days of January 1953?
A. Yes.
The pertinent portion of section 241(a)(5) of the Immigration and
Nationality Act provides for the deportation of an alien who has failed
to comply with the provisions of section 265 of said act, "unless he
establishes to the satisfaction of the Attorney General that such
failure was reasonably excusable or was not willful * * *.' Section 265
of the Immigration and Nationality Act requires every alien who is
subject to the registration provisions of the act and is in the United
States on January 1, 1953, to submit notification of his address and
such other information as may be required by the Attorney General by
January 31, 1953.
Section 241(a)(5) of the Immigration and Nationality Act provides a
new ground of deportability not to be found in any of the prior
immigration laws. The apparent purpose of this provision was to
implement the control of aliens in the United States by providing an
additional penalty, namely, deportation upon their failure to comply
with the address report feature of the alien registration program.
Though it is obvious from a perusal of this section that an alien's
failure to report his address as required will not automatically furnish
a ground for deportation, reference to the legislative history of the
Immigration and Nationality Act yields no definition of the italicized
terms. In the absence of any indication to the contrary, therefore, we
should give those terms their plain and ordinary meaning, as used in the
context in which they appear.
The term "willful' has been defined as "intending the result which
actually comes to pass; designed; intentional; not accidental or
involuntary', Black's Law Dictionary, page 1773, 4th Edition.
"Generally, it (willful) means no more than that the person charged with
the duty knows what he is doing', (Townsend v. United States, 95 F.(2d)
352, 358, (C.A.D. of C., 1938)).
The term "reasonably excusable' connotes an act or omission which is
moderately or sufficiently justifiable (State ex rel. Bliss v. Dority,
225 P.(2d) 1007; State v. Mueller, 243 N.W., 478 (Wis. 1932)).
In view of the fact that the terms referred to in section 241(a)(5)
appear in the disjunctive, the failure to furnish notification of
address will not render an alien deportable even though such failure was
intentional, provided that there was sufficient justification for such
failure. The existence of the exculpatory circumstances must be
established by credible evidence sufficiently persuasive to satisfy the
Attorney General, in the exercise of his reasonable judgment,
considering the proof fairly and impartially (Cf. Ching Hong Yuk v.
United States, 23 F.(2d) 174 (C.C.A. 9, 1927); United States v.
Hrasky, 240 Ill. 560, 88 N.E., 1031 (1909)).
On this appeal counsel admits that the respondent's failure to report
his address was willful, but contends that it was reasonably excusable.
He alleges that the respondent's wife to whom he was married on January
3, 1953, has been suffering from anemia and low blood pressure; that
they were trying to accumulate the sum of $500 to furnish as a bond so
that he might surrender himself voluntarily to the immigration
authorities; and that his failure to report his address in 1953 was
motivated by a desire to avoid complications to his wife which might
result from his apprehension if he submitted an address report. We find
nothing in the record to corroborate counsel's allegation as to the
reasons for the respondent's failure to register. As far as the record
shows, the sole reason was his desire to avoid arrest by the immigration
authorities. We have already held an alien to be deportable on a
similar state of facts, Matter of M , 0300-430947, B.I. A. May 6, 1953,
Int. Dec. No. 438. We do not consider counsel's statements, unsupported
by the record, as justifying a different holding in the instant case.
Having concluded that the respondent is amenable to deportation under
section 241(a)(5) of the Immigration and Nationality Act, it follows
that he is ineligible for voluntary departure under section 244(e) of
the same act, unless he also qualifies for suspension of deportation
under section 244(a)(5) of the act. Since he lacks the physical
presence requirements for suspension of deportation, he necessarily
fails to meet the statutory requirements for eligibility for voluntary
departure. We therefore find no error in the order of the special
inquiry officer and will accordingly dismiss the appeal.
Order: It is ordered that the appeal be and the same hereby is
dismissed.
Citizenship -- Acquisition by child born abroad -- Legitimation under laws of Rhode Island.
A child born abroad out of wedlock of a United States citizen father and an alien mother derives citizenship under R.S. 1933 only when such child has been legitimated under the laws of the father's domicile. Therefore, the respondent has not been legitimated by reason of her natural father's acknowledgment of her as his child since under the laws of his domicile, Rhode Island, legitimation of a natural child can be accomplished only by the subsequent marriage of its natural parents to each other.
CHARGE:
Warrant: Act of 1924 -- No immigration visa.
Discussion: This record relates to a 24-year-old female, born at San
Pier Niceto, Messina, Italy, on February 2, 1929, of a United States
citizen father and an Italian mother. Her father is a United States
citizen through birth on August 7, 1907 at Negaunee, Mich., who was
taken to Italy in 1910 by his mother and remained there until his return
to the United States some time in 1928. He was married in 1930 at
Providence, R.I., to a person other than the respondent's mother. They
are now legally separated but not divorced. The respondent's mother was
married in Italy in 1934 to one I S , and has been legally separated
from him since 1945. The respondent's mother and father have never been
married to each other. The record indicates that the respondent's
natural father, a resident of Rhode Island, on April 18, 1947, filed
with the Italian authorities an affidavit acknowledging the respondent
as his child, which was made a part of her record of birth.
The respondent's only entry into the United States occurred at New
York, N.Y., on June 19, 1948, aboard the SS. Marine Perch, at which time
she was admitted as a United States citizen in possession of a United
States passport issued by the American consulate at Palermo, Italy. The
present proceedings were instituted as a result of the respondent's
having filed a petition for an immigration visa in behalf of her mother,
A P S , in May 1950, which occasioned investigation of the respondent's
status as a citizen of the United States. After hearing conducted on
November 7, 1952, the hearing officer found that the act of the
respondent's natural father in acknowledging the respondent as his child
was insufficient under Italian law to constitute legitimation, as under
such law legitimation may be accomplished only by the subsequent
marriage of a natural child's parents to each other; that the
respondent has no claim to United States citizenship and is, in fact, an
alien, namely, a citizen of Italy, and therefore at time of entry was an
immigrant, and was not in possession of a valid immigration visa as
required by law. He further concluded that the respondent is deportable
from the United States under sections 13 and 14 of the Immigration Act
of May 26, 1924, on the no visa charge, and ordered that she be granted
the privilege of voluntary departure at her own expense in lieu of
deportation.
On appeal to this Board from the decision and order of the hearing
officer, counsel for respondent has excepted to the finding of fact that
the respondent is an alien, a native and citizen of Italy, and to the
conclusion of law that she is deportable on the charge stated in the
warrant of arrest. Counsel ruges that although the respondent was born
in Italy, the subsequent act of her natural father in recognizing her as
his child effected legitimation, and the action of the American
consulate in issuing her an American passport recognized her United
States citizenship, and therefore it was unnecessary for her to have an
immigration visa in her possession at time of entry. Counsel's
contentions cannot be sustained.
It has so long been established that citation of authority is
considered unnecessary, that issuance of immigration visas or passports
by American consuls abroad does not foreclose the immigration
authorities upon arrival of the holders thereof at our gates, or
subsequent thereto, from inquiring into right of such persons to enter
and remain in the United States.
Once deportation proceedings have been instituted, we are required to
make a review de novo of the facts relevant to the question of whether
the subject was entitled to enter the United States at the time of
entry. Matter of M$03, A-7099059, 4, I. & N. Dec. 532 (B.I.A., 1952).
In the instant case, it is our conclusion, after careful review of the
record, that the respondent was not entitled to enter the United States
as a United States citizen; was therefore an alien, and being such,
required to present a valid immigration visa.
The respondent's claim to citizenship is based on R.S. 1993, as
amended which provides:
All children born out of the limits and jurisdiction of the
United States, whose fathers may be at the time of their birth
citizens of the United States, are declared to be citizens of the
United States; but the right of citizenship shall not descend to
children whose fathers never resided in the Unites States.
This Board and the Department of State have for many years held that
children born abroad out of wedlock of fathers who are citizens of the
United States and alien mothers derive citizenship under R.S. 1993 only
when such children have been legitimated under the laws of the father's
domicile (32 Op.Atty.Gen. 162, at 164-165; 39 Op.Atty.Gen. 556, at
557-558). The respondent has not been legitimated by her father under
the laws of Rhode Island, which laws provide that legitimation of a
natural child can be accomplished only by the subsequent marriage of its
natural parents to each other. Although unnecessary to decision, under
the foregoing rule, it is noted that the act of respondent's father in
acknowledging her as his child through recordation on the Italian birth
records failed to accomplish legitimation under Italian laws.
The circumstances of the respondent's case have not met the
conditions prescribed in section 205 of the Nationality Act of 1940.
That section provides in part as follows:
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.
We do not find the provisions of section 205 applicable to the
instant proceeding, as the respondent does not fall within the classes
of persons described in either section 201 or section 204 of the
Nationality Act of 1940. The appeal must therefore be dismissed.
Order: It is ordered that the appeal be, and the same is hereby,
dismissed.
Crime involving moral turpitude -- Indecent assault -- Section 292( a) of the Canadian Criminal Code.
A conviction for indecent assault under section 292(a) of the Canadian Criminal Code involves moral turpitude.
EXCLUDED:
Act of 1952 -- Section 212(a)(9) -- Convicted of crime -- Indecent assault.
Act of 1952 -- Section 212(a)(9) -- Admits commission of crime -- Indecent assault.
Act of 1952 -- Section 212(a)(26) -- No passport and no nonimmigrant
visa.
Discussion: This case is before us on appeal from a decision of a
special inquiry officer at Detroit, Mich., on September 1, 1953,
excluding the alien on the grounds stated above. Appellant, a
23-year-old unmarried male, a native and citizen of Canada, seeks
admission to the United States as a nonimmigrant for the purpose of
studying at the Meinzinger Art School, Detroit, Mich. Under 8 C.F.R.
212.3(a), he is not required to present a passport or visa providing he
is otherwise qualified for admission as a nonimmigrant.
In October or November 1952, appellant applied at an American
consulate for a visa to enter the United States for the purpose of
residence and employment and was told that he "couldn't live in the
States' because of his police record in Canada. The record shows that
an indictment returned against the appellant on October 22, 1951, in the
Supreme Court of Ontario, Chatham, Ontario, Canada, charged that on
October 8, 1951, he "did unlawfully assault J St. P , a woman not his
wife, with intent to have carnal knowledge of her without her consent,
thereby attempting to commit rape, contrary to section 300 of the
Criminal Code.' Appellant entered a plea of not guilty to the indictment
but then, with the consent of the Crown, pleaded guilty to indecent
assault and on October 24, 1951, was convicted of indecent assault under
section 292(a) of the Canadian Criminal Code. He received a 3 months'
suspended sentence. A certified copy of the indictment and the record
of conviction were introduced in evidence.
Section 292 of the Canadian Criminal Code provides:
Indecent assault -- Everyone is guilty of an indictable offense
and liable to 2 years' imprisonment, and to be whipped, who:
(a) Indecently assaults any female; or
(b) Does anything to any female by her consent which but for
such consent would be an indecent assault, if such consent is
obtained by false and fraudulent representations as to the nature
and quality of the act; or
(c) Assaults and beats his wife or any other female and thereby
occasions her actual bodily harm.
In Matter of B , A-6685343 (August 4, 1947), 3, I. & N. Dec. 1, where
an alien testified he had been charged with rape in Canada but was
permitted to plead guilty to the lesser charge of indecent assault, we
held that the offense of indecent assault in that case involved moral
turpitude.
Counsel urges that the B case was incorrectly decided by this Board.
Counsel contends that the crime of indecent assault as defined by the
statute in Canada involves conduct which may or may not involve moral
turpitude. It is pointed out by counsel that under section 292(c) a
person who assaults and beats his wife or any other female and thereby
occasions her actual bodily harm is guilty of indecent assault. Counsel
maintains that indecent assault in Canada does not require anything more
than a simple assault against a woman.
In the instant case we are not dealing with a conviction under
section 292(c) of the Canadian Criminal Code, referred to by counsel.
The record clearly shows that the appellant was convicted under section
292(a) of that code. We find no merit in counsel's contention that
indecent assault in Canada requires nothing more than a simple assault
against a woman. It is clear from the Canadian Criminal Code that more
than a simple assault is required for a conviction under section 292(
a), since common assaults are covered by section 291. In Beal v.
Kelley, 35 Cr.App.R. 128, indecent assault was defined as an "assault
accompanied with circumstances of indecency on the part of the
prisoner.' But the presence of indecent circumstances will not make an
indecent assault of acts that, apart from the indecency, would not
constitute an assault at all (Fairclough v. Whipp, 35 Cr.App.R. 138).
It is evident from sections 292(a) and 292(b) of the Canadian
Criminal Code and from court decisions that an indecent assault in
violation of section 292(a) is considered a sex offense against a woman
without her consent. /1/ It is the opinion of this Board that an evil
intent distinguishes an indecent assault from common assault in Canada.
The term "indecent assault' is not defined in the code, but is
largely self-explanatory (Tremeear's Annotated Criminal Code, fifth
edition, p. 334). In R v. McAuliffe, 8 C.C.C. 21 (1904), which involved
a prosecution on a charge of presenting an indecent theatrical
performance, the court stated that the word "indecent' has no fixed
legal meaning and held that it devolved upon the prosecution to
affirmatively prove that the performance in question was of a depraving
tendency. United States courts have consistently held that an act of
depravity in the private and social duties which a man owes to his
fellowman or to society involves moral turpitude, (United States ex rel.
Ciarello v. Reimer, 32 F.Supp. 797; United States ex rel. Mylius v.
Uhl, 203 Fed. 152). /2/ Thus, taking into consideration that "indecent'
in Canada where not defined by statute denotes depravity, it is clear
that indecent assault under section 292(a) of the Canadian Criminal Code
involves moral turpitude.
Counsel relies on the Pennsylvania case of Commonwealth v. Gregory, 1
A.2d 501, in support of his contention that one can be found guilty of
indecent assault for acts that do not involve moral turpitude.
According to counsel, in the Gregory case it was held that a man who
posed as a physician and who touched the leg of a female had committed
an indecent assault. An examination of the decision in the Gregory
case, however, shows that much more than the mere touching of a leg was
involved. Moreover, the decision in the Gregory case is based on the
law of Pennsylvania and not on Canadian law.
It is the conclusion of this Board that a conviction for indecent
assault under section 292(a) of the Canadian Criminal Code involves
moral turpitude. Appellant is therefore inadmissible to the United
States under section 212(a)(9) of the Immigration and Nationality Act.
Since he is so inadmissible, he is not eligible for a waiver of a
passport and nonimmigrant visa under 8 C.F.R. 212.3(a) and is also
inadmissible on the documentary grounds stated above.
Counsel requests that we waive the criminal ground of inadmissibility
in the event the crime for which appellant was convicted is found to be
a crime involving moral turpitude. In view of the recentness and nature
of the crime for which appellant was convicted, we do not feel that a
waiver of the criminal grounds of inadmissibility is warranted. The
appeal will be dismissed.
Order: It is ordered that the appeal be and the same is hereby
dismissed.
(1) Indecent assault in Canada is considered a kindred offense to
rape and the exception to the general rule against hearsay evidence
applies so that a statement made by the complaining female shortly after
the assault was committed is admissible in evidence (Hopkinson v.
Perdue, 8 C.C.C. 286 (1904); King v. Smith, 9 C.C.C. 21 (1905), and
King v. Barron, 9 C.C.C. 196 (1905).
(2) EDITOR'S NOTE. -- Affirmed 210 Fed. 860 (C.C.A. 2, 1914).
Constitutional psychopathic inferiority -- Public charge within 5 years after entry -- Immigration Act of 1917, as amended.
(1) For immigration purposes, the development of a psychosis is not to be taken as conclusive evidence that the condition is a hereditary or constitutional matter. It is necessary to determine whether the mental breakdown occurred from proximate causes or whether the life history reveals an abnormal person who can properly be excluded or deported as one who was of constitutional psychopathic inferiority at the time of entry or mentally defective.
(2) Where it is established that insanity occurred for the first time after entry apparently as the result of mental stress and organic change after entry, the respondent is not deportable as a person who has become a public charge within 5 years after entry from causes not affirmatively shown to have arisen after entry.
CHARGES:
Warrant: Act of 1917 -- Public charge within 5 years after entry.
Act of 1917 -- Constitutional psychopathic inferiority at time of entry.
Act of 1917 -- Likely to become a public charge at time of entry.
Discussion: Appeal from the order of the special inquiry officer
finding respondent deportable only on the first charge set forth above;
denying her application for suspension of deportation; and granting
voluntary departure.
The sole issue before us is whether the respondent became a public
charges within 5 years after entry for causes not affirmatively shown by
her to have arisen subsequent to her entry into the United States. The
charge that respondent was a person of constitutional psychopathic
inferiority at the time of entry and one likely then to become a public
charge were not sustained by the special inquiry officer.
In December 1941, respondent was confined to a mental institution
maintained by the State of New York at public expense. Her condition is
diagnosed as dementia praecox, paranoid type.
Respondent is a 33-year-old single female, a native and last a
citizen of Germany, allegedly now stateless, whose only entry occurred
in 1939 when she was admitted for permanent residence together with her
father, mother, and brother. The record establishes by substantial
evidence, including the affidavit of a physician who knew respondent and
her family from the time of her birth and maintained a social and
professional relationship with her until 1940; and an affidavit of a
woman, now in the United States, with whom respondent resided for 5
years prior to her entry into the United States, that respondent had
never shown any signs or symptoms of mental illness or peculiarities
abroad or in the United States until the onset of her present illness
and that she appeared, until that time, to be a healthy normal person.
Respondent was an honor student in high school; she earned her
livelihood since she was 14 years of age; and her employers abroad have
given her high praise. No member of her family has ever been confined
to a mental institution and her first confinement occurred in December
1941 when she was admitted to a mental institution maintained by the
State of New York at public expense. Her employer in the United States
for 10 months starting in 1940 gave it as his unqualified opinion that
during the period she was employed by him, she appeared normal.
Certification by the United States Public Health Service and the
State of New York reveals that respondent cannot be certified as being a
person of constitutional psychopathic inferiority at the time of her
entry. The State certification shows the following in connection with
the cause of her affliction:
Patient was a refugee from Germany and living in a strange
country under strange conditions with a new language undoubtedly
contributed to patient's breakdown.
The State certification further shows that about 1940, respondent's
menstrual period became irregular and that she became nervious and
upset.
Respondent's latest reports reveal that she has had two lobotomy
operations and her prognosis is fair and guarded. She was released on a
trial visit of 4 days in December 1952 and counsel states that she has
now been discharged in the care and custody of her parents with whom she
now resides. Her brother is now a citizen of the United States. He
served in the Armed Forces of this country for 4 years and was honorably
discharged. Abroad, respondent has a 72-year-old aunt.
Until March 1945, respondent's parents, who speak no English, were of
the opinion that the costs of hospitalization were being paid by a
refugee service. They state that no demand for payment was made upon
them prior to April 1945. While there is some evidence to the contrary,
the latest report of the unit charged with responsibility for receiving
payment states that maintenance charges were not established prior to
April 1945 when the State and the respondent's parents entered into an
agreement whereby the sum of $225 was made payable to the State to be
applied toward "hospitalization indebtedness incurred by' respondent;
and her parents agreed to pay $30 a month for her maintenance. Such
maintenance appears to have been paid until at least April 1952. By
notice dated August 21, 1952, respondent's father was informed that the
State had canceled in full the charges for the cost of her care and
treatment and had also discontinued future charges. The State reserved
thr right to collect in the future.
Counsel contends that respondent is not deportable because she has
affirmatively established that her condition arose from causes
subsequent to her entry. He questions whether proper demand for payment
was made prior to 1945 and urges that proceedings be canceled since
there was payment after due demand; and finally believes proceedings
should be terminated on the ground that the entire indebtedness has been
canceled.
If the development of a psychosis is to be taken as conclusive
evidence that the condition is a hereditary or constitutional matter,
then there could never be shown that the conditions arose from causes
arising after an alien's entry into the United States. For, whatever
was shown as contributing to the breakdown, could merely be regarded as
being merged in the real cause -- the predisposition to insanity. Such
an interpretation, whether or not it commands medical respect, is
obviously not what was intended by Congress. /1/ Congress did provide
that if the life history revealed an abnormal person, that person could
properly be excluded or deported as one who was of constitutional
psychopathic inferiority at time of entry or mentally defective. But,
Congress afforded the alien who had become a public charge the
opportunity to show that the condition which made him a public charge
arose as a result of circumstances which occurred after his entry. /2/
In the view adopted by Congress, therefore, it is the proximate cause
that is the important factor and our search into the past of the alien
is one to determine whether the grounds urged by the alien as being the
proximate causes are in fact such.
We believe that on this record, the respondent has successfully
established that the cause of her condition arose subsequent to her
entry. Despite the fact that her life abroad appears marked with
considerable tension involving conflict with the Nazis and separation
from her fiance, she revealed no sign of abnormality. After her entry,
she behaved normally. Insanity occurred for the first time in her life
only after entry and the record reveals that her condition appears to be
the result of the mental stress and organic change after her entry. The
proceedings will therefore be terminated. In view of our action, we
need not further discuss the claim that no debt now exists which would
make the respondent a public charge.
Order: It is ordered that the proceedings be and the same are hereby
terminated.
(1) Insanity is a legal term rather than a medical diagnosis (Public
Health Service Manual for Medical Examination of Aliens, pt. II-1-4.
(2) Insanity is expressly mentioned as one of these conditions (p.
12, S. Rept. 335, 63d Cong., 2d sess., March 17, 1914, referred to in S.
Rept. 352, 64th Cong., 2d sess., April 17, 1916, to accompany H.R.
10384).
Expatriation -- Service in Canadian military forces -- Excludability under section 212(a)(9) of the Immigration and Nationality Act when conviction occurred while a United States citizen.
(1) A dual national who enlisted in the Canadian military forces prior to the effective date of the Orders in Council issued by the Governor General of Canada to the effect that an oath of allegiance was not required to be taken by a person who was a citizen of a foreign country if the taking of such oath would, under the laws of the country in question, have forfeited his citizenship therein, is presumed to have taken an unqualified oath of allegiance to the British Crown and to have expatriated himself under the provisions of the act of March 2, 1907, by virtue of his own voluntary actions.
(2) Excludibility under section 212(a)(9) of the Immigration and Nationality Act is established when the individual is found to be an alien and to have been convicted of a crime involving moral turpitude. The fact that the alien was convicted of such a crime while he was a United States citizen does not affect his present excludability.
EXCLUDED:
Section 212(a)(9) -- Immigration and Nationality Act -- Convicted of
crime involving moral turpitude, to wit: Theft on three occasions.
Discussion: This case is before us on appeal from the special
inquiry officer's decision of October 29, 1953, excluding the subject
from the United States on the above-stated grounds.
The facts of this case have been succinctly set forth in the opinion
of the special inquiry officer and there is no need to repeat them all
here. Briefly, this case presents a threefold issue: First, whether
the subject is a citizen of the United States or an alien; second,
whether, if an alien, the subject has been convicted of crimes involving
moral turpitude, within the purview of the immigration laws; third, the
subject's marital status. If the first issue is resolved in favor of
the subject, then, of course, the other two questions are of no moment
here.
The special inquiry officer's conclusion of alienage to the British
Crown upon a finding that the subject swore allegiance to the British
Crown upon enlistment in the Canadian Army on September 25, 1939, thus
effecting his expatriation under the provisions of the act of March 2,
1907. Counsel, however, contends that the government has not met the
onus of showing expatriation. He urges that the only evidence on this
point is the question appearing on page 15 of the transcript, "Did you
swear allegiance to the British Crown upon your enlistment in the
Canadian Army?' and the answer, "I must have, yes.' He urges that this
evidence is not sufficient to establish the burden which rests upon the
Government to show expatriation.
There is no question in our minds but that this subject was required
to take an unqualified oath of allegiance to the British Crown
concomitant with the commencement of his military service on September
25, 1939. It is true that by Executive agreement concluded during World
War II between the United States and Canada (April 8, 1942), persons
possessing dual nationality of the United States and Canada could have
served in the Canadian military forces without having been required to
take an oath of allegiance to the British Crown. By virtue of orders in
Council issued by the Governor General of Canada, an oath of allegiance
was not required to be taken by a person who was a citizen of a foreign
country if the taking of such an oath would, under the laws of the
country in question, have forfeited his citizenship therein. The orders
in Council referred to are P.C. 2399 of June 7, 1940, with regard to the
air force, and P.C. 3511 of July 30, 1940, with regard to the naval
forces of Canada, and P.C. 3294 with respect to Army service was in
effect from July 20, 1940. However, it is clear that the orders in
Council referred to were not in effect on the date of this appellant's
entering into military service in the Canadian armed forces which took
place on September 25, 1939. Hence, as to him, there was no
dispensation with the requirement of an oath of allegiance. Since the
oath of allegiance was required at the time this appellant commenced his
Canadian military service, there is no reason to presume that an
exception to the requirement was made in his case. As a matter of fact,
his testimony in this respect referred to by counsel is indicative of
the fact that he did comply with the requirement. Furthermore, we note
that the appellant's Canadian military service and the concomitant oath
of allegiance resulted from his act of enlisting. To us, the foregoing
clearly, convincingly and, indeed, overwhelmingly establishes that this
subject expatriated himself under the provisions of the act of March 2,
1907, by virtue of his own voluntary actions.
With regard to the question of whether the subject has been convicted
of crimes involving moral turpitude within the purview of the
immigration laws, counsel has advanced two contentions. First, it is
urged that at the time the offenses were committed the subject was not
an alien, but a citizen of the United States. That is, counsel urges
that the appellant is not excludable because he has never been convicted
of a crime as an alien.
This contention is completely without merit. S 's exclusion under
the Immigration and Nationality Act is not precluded because of the
circumstance that he was a citizen at the time he was convicted of the
crimes in question. The proper scope of the Immigration and Nationality
Act of 1952 as applied to this case is found in the ordinary meaning of
its words. /1/ The words of the act require that all persons to be
excluded thereunder shall be aliens. They do not limit its scope to
aliens who have never been citizens. They do not exempt those who have
been citizens, but have suffered expatriation. They do not suggest that
such persons are not as clearly "aliens' as those who have never been
citizens. No distinction is evidenced in the words of the statute. S
's conviction of a crime involving moral turpitude is a condition
precedent to his excludability and his status as an alien is a necessary
further condition. When both conditions are met and they are here (the
question of whether the crimes involve moral turpitude will be disposed
of hereinafter), the Act is satisfied. (See Eichenlaub v. Shaughnessy,
338 U.S. 521 (1950), involving deportability.) /2/
Counsel next urges that the crimes here involved do not constitute
moral turpitude. He has eloquently pointed out the petty nature of the
substantive crimes of theft involved in each instance, the circumstances
and motives surrounding the crimes in each instance, and the light
sentences imposed therefor. He then calls our attention to certain
cases wherein we have held that crimes which he considers much more
serious than those which the subject here stands convicted of did not
involve moral turpitude.
With regard to the convictions here in question, the fact remains
that this alien was convicted of theft on three occasions. While the
convictions for theft were in Canada, the fact also remains that the
crimes involve a permanent taking. Therefore, they involve moral
turpitude (Matter of N , A-6953557, 3, I. & N. Dec. 723). The fact that
the thefts may have been petty is immaterial (Tillinghast v. Edmead, 31
F.(2d) 81 (C.C.A. 1, 1929)).
Furthermore, no argument has been advanced that these crimes were
purely political in nature and it is clear that they were not. Thus, we
may not inquire into the motive behind the crimes. In addition, while
the first two convictions as to this subject were had prior to his 18th
birthday, no showing has been made that he was treated as a juvenile
offender. The convictions occurred in the Province of Quebec in 1935.
It was not until November 3, 1942, that by proclamation the age limit
was raised to 18 years of age so far as juvenile offenders in the
Province of Quebec are concerned. Prior to that date, juvenile
offenders in that province were defined in the Canadian Juvenile
Deliquents Act, 1929, which defines the term "child' as any boy or girl
apparently or actually under the age of 16 years. Hence, the alien is
excludable because of conviction of those crimes (Matter of N , supra).
Moreover, this alien committed more than one crime while under the age
of 18 years and hence would still be excludable on the stated charge
even had he not committed or been convicted of a crime subsequent to his
becoming 18 years of age, which in fact he did.
Finally, counsel has raised the issue of the special inquiry
officer's expression of doubt concerning the legality of the subject's
marital status. However, this question had no bearing on the special
inquiry officer's decision. It is of no moment here and needs no
further discussion.
On the basis of the foregoing, we find that the subject is an alien
and that he is excludable on the grounds urged by the special inquiry
officer. No other questions remain for our consideration. Therefore,
we will dismiss the appeal.
Order: It is ordered that appeal from the special inquiry officer's
decision excluding the subject from the United States on the grounds
stated above be and the same is hereby dismissed.
(1) The provisions of that act, here pertinent, are as follows:
"Sec. 212. (a) Except as otherwise provided in this act, the following
classes of aliens shall be ineligible to receive visas and shall be
excluded from admission into the United States: * * * (9) Aliens who
have been convicted of a crime involving moral turpitude (other than a
purely political offense), or aliens who admit having committed such a
crime, or aliens who admit committing acts which constitute the
essential elements of such a crime; except that aliens who have
committed only one such crime while under the age of 18 years may be
granted a visa and admitted if the crime was committed more than five
years prior to the date of the application for a visa or other
documentation, and more than five years prior to date of application for
admission to the United States, unless the crime resulted in confinement
in a prison or correctional institution, in which case such alien must
have been released from such confinement more than five years prior to
the date of the application for a visa or other documentation, and for
admission, to the United States; * * *.'
(2) We do not think that the Mangaoang Case (Mangaoang v. Boyd, 205
F.(2d) 553; cert. den., 346 U.S. 876), controls here for the reasons
set forth in 3 of that decision, p. 555.
Excludability -- Section 212(a)(9) of the Immigration and Nationality Act -- Admission of crime or acts must be made prior to or at time of entry -- Deportability under section 241(a)(1) of the Immigration and Nationality Act.
To be effective as a ground of exclusion under section 212(a)(9) of the Immigration and Nationality Act, an admission of having committed a crime involving moral turpitude or acts which constitute the essential elements of such a crime must have been made prior to or at time of the alien's entry into the United States. Therefore, a warrant charge under section 241(a)(1) of the Immigration and Nationality Act based on excludability under section 212(a)(9) of that act by reason of an admission of acts constituting the essential elements of a crime involving moral turpitude is not sustainable where the admission is made at the warrant hearing after the alien's last entry.
CHARGE:
Warrant: I. & N. Act -- Admits crime prior to entry, to wit:
Uttering and Publishing.
Discussion: This is an appeal from an order of the special inquiry
officer finding the respondent deportable on the above charge and
directing her deportation.
The record relates to a 20-year-old married female, a native and
citizen of Canada, who last entered the United States at Detroit, Mich.,
on July 2, 1953, at which time she was admitted as a returning resident.
She was originally admitted to the United States for permanent
residence on July 18, 1951. During the course of the warrant hearing
she testified that in February and March 1953 while working in a bank in
Michigan she wrote three checks with fictitious names on accounts in
such bank and thereafter endorsed these checks with her own name and
cashed them. The special inquiry officer has concluded that she is
deportable on the warrant charge on the ground that she has admitted the
commission of the crime of uttering and publishing as defined in the
Michigan statutes.
It appears that the respondent has made full restitution and that no
formal criminal charge was ever pressed against her. Although the
special inquiry officer in his decision has referred to the section of
the Michigan statutes allegedly violated by the respondent, nowhere does
the record contain the definition of the crime, the elements of which
the respondent is charged with having admitted. Under the circumstances
we feel that the record in its present state is insufficient to sustain
the warrant charge.
However, there is a more basic reason as to why the warrant charge
cannot be sustained. The Immigration and Nationality Act unlike section
19 of the Immigration Act of February 5, 1917, as amended, does not
contain any specific provisions for the deportation of an alien who
admits the commission of a crime prior to entry. Under the Immigration
and Nationality Act such a person is deportable, if at all, only if he
falls within the scope of section 241(a)(1) which applies to all aliens
excludable by the law existing at the time of their entry. It is
therefore necessary to refer to the exclusion provisions of the
Immigration and Nationality Act, since the respondent's last entry
occurred after the effective date of that act. Section 212(a)(9) of
said act provides for the exclusion of aliens who admit having committed
a crime involving moral turpitude or admit committing acts which
constitute the essential elements of such a crime. Since this is an
excluding provision it must necessarily be considered in terms of the
facts existing at the time of the alien's application for admission into
the United States. For, unless the grounds for exclusion existed at the
time of the person's entry into this country, the alien would not be
excludable at such time. Consequently, an admission to be effective as
a ground for exclusion under section 212(a)(9) of the Immigration and
Nationality Act must have been made prior to the alien's last entry into
the United States. Once the alien has entered this country the
admission of a crime thereafter made cannot relate back so as to render
the person excludable as of the date of his last entry. In the instant
case the alien's admission was made at the warrant hearing after her
last entry into this country. Accordingly, it does not furnish a basis
for deportation. The appeal will therefore be sustained.
Order: It is ordered that the outstanding order of deportation be
withdrawn.
It is further ordered that the proceedings be terminated.
Expatriation -- Section 349(a)(3) of the Immigration and Nationality Act -- Permission of local draft board to enlist in foreign armed forces not effective.
Expatriation by a national of the United States results by virtue of his service in 1953 in the Canadian Air Force, even though he had permission of his local draft board to depart from the United States for the purpose of enlisting in the Armed Forces of Canada. Authorization by the local draft board does not amount to consent by the Secretary of State or the Secretary of Defense to enter or serve in the armed force of a foreign state.
EXCLUDABLE:
Section 212(a)(20), Immigration and Nationality Act -- No immigrant
visa.
Discussion: This case has been certified for decision pursuant to 8
C.F.R. 6.1(c). The above-captioned applicant applied for admission at
the port of Calais, Maine, and after hearing by a special inquiry
officer was found to be inadmissible under section 212(a)(20) of the
Immigration and Nationality Act.
The record relates to a native of the United States born March 1,
1934, of Canadian parents. He served in the Armed Forces of the United
States for approximately 6 months and was honorably discharged on August
22, 1951. With permission of his local draft board he joined the
Canadian Air Force on January 3, 1953, and served therein until February
20, 1953, when he was honorably discharged.
The only issue presented is whether the applicant has expatriated
himself under the provisions of section 349(a)(3) of the Immigration and
Nationality Act by entering and serving in the armed forces of Canada.
There is a showing that the applicant had the permission of his local
draft board to depart from the United States for the purpose of
enlisting in the armed forces of Canada as he could not reenlist in the
Armed Forces of the United States. Expatriation under section 349
(supra) is avoided only when there is specific authorization by the
Secretary of State and the Secretary of Defense to enter or serve in the
armed forces of a foreign state. Authorization by a local draft board
does not amount to consent of the sovereign in accordance with the terms
of the statute. See Tomoya Kawakita v. United States, 190 F.(2d) 506
(C.A. 9, 1951), aff'd, 343 U.S. 717 (1952).
Order: The order entered by the special inquiry officer on July 24,
1953, is hereby affirmed.
Crime involving moral turpitude -- Assault, second degree, Washington -- Entry.
(1) A conviction of assault, second degree, with a .38-caliber revolver (sec. 2414(4) Remington's Revised Statutes of Washington 1932) is a conviction of a crime involving moral turpitude.
(2) A Filipino convicted of such crime in 1952 who last entered the United States as a returning resident in 1949, or after the effective date of the Philippine Independence Act on July 4, 1946, made an entry as an alien at that time and was sentenced to imprisonment for a crime committed within 5 years of entry.
CHARGE:
Warrant: Act of 1917 -- Crime within 5 years -- Assault in the
second degree.
Discussion: This case is before us on certification of the special
inquiry officer dated January 29, 1953, ordering termination of the
deportation proceeding. Respondent, a 43-year-old native and citizen of
the Philippine Islands, entered the United States for permanent
residence on May 6, 1929, at Seattle, Wash. His last entry occurred on
July 26, 1949, at Portland, Oreg., when he was admitted as a returning
legal resident.
On September 9, 1952, respondent was convicted on a plea of guilty in
the Superior Court, King County, Wash., of assault, second degree.
According to the information, on April 20, 1952, respondent "willfully
and unlawfully did make an assault on a human being, with a weapon or
thing likely to produce bodily harm, to wit: a .38-caliber revolver.'
Respondent was sentenced to a maximum of 10 years' imprisonment and is
presently confined at the Washington State Penitentiary, Walla Walla,
Wash. On the basis of this conviction, a warrant of deportation was
issued charging that respondent had been sentenced to imprisonment for
one year or more as a result of a conviction in this country for a crime
involving moral turpitude, committed within 5 years after entry (sec.
19(a), act of 1917).
The pertinent provision of Remington's Revised Statutes of
Washington, 1932, reads as follows:
SEC. 2414. Assault in the second degree. Every person who,
under circumstances not amounting to assault in the first degree
--
(1) With intent to injure, shall unlawfully administer to or
cause to be 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, shall administer to, or cause to
be taken by another chloroform, either, laudanum or any other
intoxicating narcotic or anesthetic; or
(3) Shall willfully inflict grievious bodily harm upon another
with or without a weapon; or
(4) Shall willfully assault another with a weapon or other
instrument or thing likely to produce bodily harm; or
(5) Being armed with a deadly weapon shall willfully assault
another with a whip; or
(6) Shall assault another with intent to commit a felony, or to
prevent or resist the execution of any lawful process or mandate
of any court officer, or the lawful apprehension or detention of
himself or another person; or
(7) While hunting any game or other animals or birds, shall
shoot another;
Shall be guilty of assault in the second degree and be punished
by imprisonment in the State penitentiary for not more than 10
years or by a fine of not more than $1,000, or by both (L. 1909,
p. 936, sec. 162).
Because section 2414 is a statute with separable subsections, it is
possible to determine the subsection under which the conviction occurred
and the moral turpitude question can then be settled. After reading the
statute and the conviction record together, it is quite clear that
respondent's 1952 conviction occurred under subsection (4).
In Matter of Z , A-1817228, Int. Dec. No. 475 (B.I.A., August 5,
1953), the crime of assault, second degree in New York, /1/ similar in
wording to the Washington statute under consideration, was considered.
According to the indictment in the Z case, the alien "with force and
arms * * * did make an assault on another person with a knife;' with
this knife, a weapon likely to produce grievous bodily harm, he
"feloniously, willfully, and unlawfully did strike, stab, beat, cut,
bruise, wound and contuse' the other person. The Board said in that
case:
It has been held by the New York Court of Appeals that both
subsections (3) and (4) of section 242 require a specific criminal
intent to inflict bodily injury, coexistent with the acts
involved. People v. Katz, 290 N.Y. 361, 49 N.E.2d 482 (1943);
see also, People v. Osinski, 281 N.Y. 129, 22 N.E.2d 311 (1939).
According to the record in the instant case, respondent's
conviction occurred under section 242(4) and, hence, involved an
evil intent. Therefore, because moral turpitude arises from a
criminal intent, the offense defined in section 242(4) clearly
involves moral turpitude.
* * * * * * *
"In United States ex rel. Ciccerelli v. Curran, 12 F.(2d) 394 (C.C.
A. 2, 1926), the court stated that "it seems to be admitted that the
crime of assault in the second degree (in New York) is one involving
moral turpitude.' Although the real question involved in United States
ex rel. Morlacci v. Smith, 8 F.(2d) 663 (W.D.N.Y., 1925), was the
construction of the word "sentence,' the court stated by implication
that assault in the second degree with dangerous weapon (revolver) was
in fact a crime involving moral turpitude and sustained the deportation
charge. In United States ex rel. Pellegrino v. Karnuth, 23 F.Supp. 688
(W.D.N.Y., 1938), the court concluded that the wounding of a person
through the firing of a shotgun constituted a crime involving moral
turpitude, although it was not clearly established whether the offense
was assault in the first degree or assault in the second degree. To the
same effect, Matter of P , 56031/543 (B.I.A., October 24, 1942).
* * * * * * *
In United States ex rel. Ciarello v. Reimer, 32 F.Supp. 797 (S.D.N.
Y., 1940), section 242(3), (4) are discussed, although the conviction in
issue actually occurred in Italy with a vaguely reasoned analogy being
made to the provisions of section 242. /2/ '
While section 10098, Mason's Minnesota Statutes, 1927, is almost
identical with section 241(1), (2), (3), (4), and (6) of Rem. Rev.
Stats. of Washington, the alien's conviction in Matter of B , 56018/
361, 1, I. & N. Dec. 52 (Atty. Gen., 1941) occurred under subsection (3)
which parallels section 2414(3). Although the crime was held not to
involve moral turpitude in the Matter of B , as in the instant case, the
offense involved was not identical; the record was silent regarding the
weapon used, while we note in the present case that the weapon was known
to be a .38-caliber revolver. Consequently, we feel that this case is
not controlling in the instant situation.
The special inquiry officer found that the Washington courts have
held that because no particular intent to inflict bodily injury is
required, the offense does not involve moral turpitude. The phrase
"particular intent' was used in State v. Copeland, 66 Wash. 243, 119
Pac. 607 (1911), but this phrase referred specifically to the intent to
kill which is required for assault, first degree in section 2413. The
Washington courts have been primarily preoccupied with determining
whether the factual and legal requirements of the crime of assault,
second degree were present in the decisions cited by the special inquiry
officer.
Howell v. Winters, 58 Wash. 436, 108 Pac. 1077 (1910) is chiefly
concerned with the correctness of the charge to the jury and whether the
verdict was excessive. With regard to a definition of the offense of
assault, not found in the statutes, the court relied on the common law
and defined the crime as an attempt with unlawful force to inflict
bodily injuries on another, accompanied with apparent ability to give
effect to the attempt, if not prevented. This definition is cited in
State v. Shaffer, 120 Wash. 345, 207 Pac. 229 (1922); Peasley v. Puget
Sound Tug and Barge Co., 13 Wash.2d 504, 125 P.2d 681 (1942); State v.
Rush, 14 Wash.2d 138, 127 P.2d 411 (1942); and State v. Rush, 32 Wash.
2d, 278, 201 P.2d 513 (1949).
In State v. Copeland (supra), the court determined that the assault
with a shotgun in that instance occurred without legal justification and
not in self defense. The court also held that, while Copeland was
charged with first degree assault but convicted of second degree
assault, the former charge included the latter and the conviction was
proper.
In State v. Shaffer (supra), a sheriff attempted to search Shaffer's
house, but Shaffer was unwilling and held the sheriff at bay with a gun,
committing assault, second degree. On the other hand Peasley v. Puget
Sound Tug and Barge Co. (supra), arose as a malicious prosecution action
and is primarily concerned with possible defenses to the charge, such as
justifiable cause, the amount of force justified by circumstances, etc.
The court actually bypasses the question of whether the crime of
assault, second degree existed in this instance, in order to reach and
determine another legal question.
However, in regard to whether a specific evil intent tantamount to
moral turpitude was present in a given case, we feel that State v.
Shaffer is helpful. In that case, the court found that the element of
willfulness under section 2414 meant an intentional act which complied
with the other statutory requirements of the crime of assault, second
degree.
Hence, we feel that the Board's reasoning involving a similar
California statute is pertinent here. In Matter of G R , A-4569802, 2,
I. & N. Dec. 733 (Atty. Gen., 1947), it was shown that although the
statute relating to assault with a deadly weapon was amended in 1874 to
eliminate the words "with intent to do bodily harm,' /3/ the California
courts continued to read this requirement into the statute. The Board
stated in that case:
An assault with a deadly weapon is "an unlawful attempt coupled
with a present ability to commit a violent injury upon the person
of another' "with a deadly weapon.' The crime constituting an
attempt to do an injury necessarily includes the intent to do an
injury since an attempt to commit a crime always includes the
intent.
* * * * * * *
The new version is more concise, and the two alternated
attendant circumstances are objective, i.e., the assault was
committed with a deadly weapon or instrument, or it was committed
by means of force likely to produce great bodily injury. We are
convinced, however, that the offense described in the later
statute is no less serious.
* * * * * * *
While the punishment provided is not always a guide as to
whether a crime involves moral turpitude, it is certainly an
indication of the seriousness with which the California
legislature regarded the two offenses.
After studying the California cases on the crime as presently
defined we are also convinced that although the former statute
specifically prescribed that the act be committed "with intent to
do bodily harm' and the later version does not, the crime is still
limited to intentional acts and does not include the inflicting of
injuries by accident.
We, therefore, feel that a criminal intent to inflict bodily injury
is implicit in respondent's act of making an assault on another with a
38-caliber revolver. /4/ Matter of G R (supra); cf., Weedin v.
Yamada, 4 F.(2d) 455 (C.C.A. 9, 1925). Because moral turpitude arises
from a criminal intent, the offense defined in section 2414(4) involves
moral turpitude. United States ex rel. Mongiovi v. Karnuth, 30 F.(2d)
825 (W.D.N.Y., 1929); United States ex rel. Meyer v. Day, 54 F.(2d) 336
(C.C.A. 2, 1931); United States ex rel. Shladzien v. Warden, 45 F.(2d)
204 (E.D. Pa., 1930).
It is noted in passing that the record reveals that respondent twice
previously was arrested and imprisoned for assault, second degree, in
Washington. As a result, a warrant of arrest in deportation was issued
on November 15, 1946, on the same ground as in the present case and in
that instance the proceedings were also terminated. In addition, the
record shows that respondent was convicted in Sacramento, Calif., of
assault, third degree, in 1934 and was sentenced to about 4 months'
imprisonment.
Because respondent is a Filipino, consideration of Gonzales v.
Barber, 207 F.(2d) 398 (C.A. 9, 1953) /5/ and Mangaoang v. Boyd, 205
F.(2d) 553 (C.A. 9, 1953) /6/ is appropriate. The instant case may be
distinguished from Gonzales v. Barber (supra) for respondent made a
valid "entry' into the United States as an alien in 1949. Conversely,
Gonzales only arrival was in 1930, when he was a United States national,
and the fact that Gonzales was reduced to alienage on July 4, 1946, did
not make his original arrival an alien's entry. This factor, according
to the court, kept Gonzales from being deportable as an alien sentenced
more than once for criminal convictions after entry (assault with a
deadly weapon in California; burglary, second degree in Washington).
The present case also differs from Mangaoang v. Boyd (supra) because
Mangaoang's deportation was sought on the ground that he had been a
Communist in 1938 and 1939. However, because his only entry was in 1926
and he was in fact a United States national in 1938, rather than an
alien, the charge was held not sustained.
Although respondent was admitted for permanent residence in 1929, he
was actually a United States national. However, since respondent again
entered in 1949, or after the effective date of the Philippine
Independence Act on July 4, 1946, he was an alien on that occasion and
made an "entry' within the meaning of the act of 1917. Hence, he was in
fact sentenced to imprisonment for a conviction (in 1952) as a result of
a crime committed within 5 years of entry (in 1949).
For the foregoing reasons, the warrant charge under section 19(a) of
the act of 1917 is sustained and the decision below is reversed.
Order: It is hereby ordered that the warrant charge be sustained and
the alien be deported.
(1) Sec. 242(4) of the New York Penal Law provides:
"A person who, under circumstances not amounting to the crimes
specified in section 240 * * *
"(4) Willfully and wrongfully assaults another by the use of a
weapon, or other instrument or thing likely to produce grievous bodily
harm * * * is guilty of assault in the second degree.'
(2) The special inquiry officer mentions United States ex rel.
Zaffarano v. Corsi, which was discussed in Matter of Z (supra) as
follows:
"Although the conviction in United States ex rel. Zaffarano v.
Corsi, 63 F.(2d) 757 (C.C.A. 2, 1933) arose under section 242(5),
information was lacking about the specific charge involved in the
conviction and the court made no definite ruling on the moral turpitude
question.'
(3) Applicable provisions of California Penal Code:
SEC. 240. Assault defined. -- An assault is an unlawful attempt,
coupled with a present ability, to commit a violent injury on the person
of another.
SEC. 245. Assault with a deadly weapon; Punishment. Every person
who commits an assault upon the person of another with a deadly weapon
or instrument or by any means of force likely to produce great bodily
injury is punishable by imprisonment in the State prison not exceeding
10 years, or in a county jail not exceeding 1 year, or by fine and
imprisonment.
(4) The crime of assault with a deadly weapon has been held to
involve moral turpitude in the following cases: Matter of R , 56050/
167, 1, I. & N. Dec. 209 (B.I.A., April 8, 1942); Matter of K , 56138/
221 (B.I.A., November 12, 1943); Matter of N , A-1779952, 2, I. & N.
Dec. 201 (B.I.A., September 16, 1944); Matter of B , A-3748822 (B.I.
A., January 5, 1946); Matter of O , A-5912688, 3, I. & N. Dec. 193 (B.
I.A., 1948); Matter of P , A-6386124, 3, I. & N. Dec. 5 (Atty. Gen.,
September 11, 1947).
(5) Certiorari granted December 4, 1953. (See Barber v. Gonzales,
347 U.S. 637 (1954)).
(6) Certiorari denied November 9, 1953 346 U.S. 876 .
Fine -- Section 256 of the Immigration and Nationality Act -- Direct evidence of crewman's having been discharged or paid off not required -- Mitigation.
(1) An alien crewman has been discharged or paid off when, following the preparation of his pay voucher, he is informed by the master that his services are no longer required and the position vacated by such action is filled by another, even though there is no direct evidence of such discharge. This is further substantiated by the fact that the crewman received his wages in some manner even though the ship's articles show that the wages were withheld. When this occurs without first obtaining the consent of the Attorney General a violation of section 256 of the Immigration and Nationality Act is established.
(2) Mitigation is not warranted merely because the alien crewman,
discharged or paid off without consent of the Attorney General, reships
foreign without any assistance from the master or agents.
Discussion: This matter is before us by reason of an appeal from the
decision of the District Director of Immigration and Naturalization,
Miami, Fla., bearing date August 4, 1953, wherein fine in the amount of
$1,000 was imposed upon the Texas Transport & Terminal Co., Inc., New
Orleans, La., agents of the vessel as aforesaid, which vessel arrived at
the port and on the date indicated from a foreign port or place for
violation of section 256 of the Immigration and Nationality Act (8
U.S.C. sec. 1286).
The specific violation complained of is "paying off and discharging
the nonresident alien seaman D B in the United States without the
consent of the Attorney General or the Immigration and Naturalization
Service.'
Section 256 of the Immigration and Nationality Act (supra) provides
in part as follows:
It shall be unlawful for any person, including the owner,
agent, consignee, charterer, master, or commanding officer of any
vessel * * * to pay off or discharge any alien crewman * * *
without first having obtained the consent of the Attorney General.
If it shall appear to the satisfaction of the Attorney General
that any alien crewman has been paid off or discharged in the
United States in violation of the provisions of this section, such
owner, agent, consignee, charterer, master, commanding officer or
other person shall pay to the collector of customs of the customs
district in which the violation occurred the sum of $1,000 for
each such violation. * * * Such fine may, in the discretion of
the Attorney General, be mitigated to not less than $500 for each
violation, upon such terms as he shall think proper.
In a report bearing date April 9, 1953, submitted by an investigator
of the New Orleans, La., office of the Immigration and Naturalization
Service it is stated briefly that the articles on which the crew of the
SS. Republic arrived at New Orleans, La., on February 12, 1953, were
closed on February 12, 1953, in the presence of the shipping
commissioner, at which time D B was 1 of the 3 firemen-water tenders on
this vessel. The closed articles show that his wages were withheld;
that he had a balance of $308.16 due from the ship on that date. New
articles were opened on the same date, February 12, 1953, and on those
new articles there are again three firemen-water tenders. The name of D
B is not contained among those three nor anywhere else on the crew list
subsequently presented, but that seaman's name was replaced by that of
one M T N , a citizen of the United States.
On February 16, 1953 D B testified before an investigator of the New
Orleans office of the Immigration and Naturalization Service to the
effect that he was born in Amsterdam, Holland, on August 27, 1903, and
that he is a citizen of the country of his nativity. In support of this
statement he presented a Netherland passport valid to November 22, 1953.
He further testified that he arrived at the port and on the date
hereinabove set forth and that he was classified as a D-1 seaman which,
in effect, required his departure from the United States on the next
sailing of the vessel named. The Form I-95 specifically so indicated
and in addition thereto set forth, "You may not be paid off or
discharged in the United States. In no event is stay authorized beyond
90 days.'
The vessel left New Orleans, La., on February 13, 1953, to proceed to
Houston, Tex.
B further explains that he was put off the ship by the captain before
it sailed for Houston, Tex., on the night of Thursday, February 12. He
stated that he was not permitted to occupy his bunk and that the captain
told him that he "was finished, that there was no work for me, that I
would have to get off the ship.'
There appears to be some misunderstanding on the part of the captain
in that he asserted that he could not sign the alien on the ship's
articles again and that the alien was therefore without a job or
employment and that the master was powerless in the circumstances.
There was due this seaman on February 12, 1953, as shown by seaman's
pay voucher, a gross amount of $422.23, with deductions of $114.17,
making a total balance of $308.16, which pay was obtained by the alien
crewman in some manner, although the master asserts that the wages due
were withheld.
From the foregoing it is quite obvious that the crewman B was
succeeded by M T N , who was signed on the ship's articles on February
12, 1953, before the departure of the vessel from the port of New
Orleans, La., and it is therefore shown that the master was fully aware
of the "discharge' of the alien seaman B .
P J D was interviewed on board the SS. Republic at Honolulu, T.H., on
March 7, 1953, at which time he conceded that upon arrival at New
Orleans, La., on the date hereinabove first set forth, D B was a member
of the crew and he averred on that occasion that "he left the ship in
New Orleans.' The master alleged that he did not sign this alien crewman
off the ship's articles and that he did not pay him off and further that
he did not know exactly when he left the ship. The master further
averred that he merely gave him "a drawer' and that he was not signed
off the articles.
The master also stated that he reported the failure of B to leave New
Orleans in the statement of the master as to changes in crew when he
left New Orleans. Although the master alleged that he did not see this
crewman leave the ship he did concede that the said crewman took all of
his effects from the ship and that such action was an indication that he
was leaving the ship permanently.
It is significant that notwithstanding any indication of what may
have happened before the shipping commissioner or any alleged inability
of the master to continue the employment of B the fact remains that
neither the master nor the agents nor any of the persons mentioned in
the statute obtained permission from the Attorney General or his agents
of the Immigration and Naturalization Service to discharge or to pay off
the alien seaman D B .
The sole issue before this Board for determination is whether or not
the alien seaman D B was paid off or discharged without first having
obtained the consent of the Attorney General.
The evidence of record shows that a seaman's pay voucher was prepared
on February 12, 1953, and following the preparation of that seaman's pay
voucher the master informed the said alien seaman that his services were
no longer required aboard ship, and subsequently on the same day the
position vacated by the master's action was filled by the same officer,
by one M T N , a citizen of the United States.
The foregoing is further substantiated by statement of the master
concerning changes in crew. Moreover, the testimony of the witness D B
shows that he was ejected from the ship in the circumstances hereinabove
set forth, and these facts stand uncontroverted by the master, who in
his testimony at Honolulu, T.H., indicates that the alien's leaving the
ship was not the orderly following of the requirements of law.
The fact of a discharge need not be proved by direct evidence
but may be inferred from circumstances such as the seaman's
voluntarily leaving the vessel with the master's consent and
without provision for his return, a forcible ejection of the
seaman from the ship, orders for payment of wages in full to date
on going ashore. * * * (56 Corpus Juris 945, sec. 78).
In the case of Trent v. Gulf Pacific Lines, 42 F.(2d) 903, the court
said, among other things:
In the light of these authorities, it is my opinion that
libellant was discharged "without fault on his part justifying
such discharge.' That he was discharged without his consent the
record affirmatively shows; in fact, the final separation of ship
and man came only through ejection * * *.
Among the contentions advanced by counsel in behalf of the appellant
is that section 256 of the Immigration and Nationality Act (supra) does
not impose upon any person the duty to prevent an alien's being paid
off. It merely makes it unlawful for a person, or, as the act states,
"any party,' to pay off the alien under certain circumstances. In this
regard counsel contends that the Texas Transport & Terminal Co., Inc.,
who was the agent did not discharge or pay off the seaman but it was the
master who was the responsible individual.
The statute provides that it shall be unlawful for any person,
including those specifically named, and that term "person' includes the
owner, agent, consignee, charterer, master, or commanding officer, to
pay off or discharge any alien crewman without first having obtained the
consent of the Attorney General. The statute thereby makes all named
equally responsible to see that no seaman is paid off or discharged
without the consent of the Attorney General first having been obtained.
The Congress was aware of the situation that after a master had departed
he is unavailable and so in adopting section 256 of the Immigration and
Nationality Act (supra) it is obvious that the section of the statute
quoted was made to apply to all, and it is our conclusion that the
terminology makes all those mentioned equally responsible for the full
enforcement of the provisions thereof.
Counsel further contends that the alien was not paid off and did not
receive his wages in full, but the testimony of the alien crewman and
the documents, plus the circumstances hereinabove set forth can lead to
but one conclusion, and that is that the alien crewman was paid off and
that he was discharged, and that there was a failure to comply with the
statute by first obtaining the consent of the Attorney General.
After careful consideration of all of the evidence of record it is
our conclusion that a violation of section 256 of the Immigration and
Nationality Act is established in that the alien crewman D B was paid
off and discharged without any of the parties mentioned in the statute
first having obtained permission of the Attorney General to so pay off
and discharge the said alien crewman.
The remaining question is one pertaining to mitigation of the
penalty. The evidence in this case discloses that the entire crew was
paid off before the United States Shipping Commissioner at the port of
New Orleans, La., on February 12, 1953, at which time new articles were
opened and that the name of D B is not shown on the articles of the SS
Republic. There is an indication that the articles covering the arrival
of the vessel on February 12, 1953, contain a notation that wages were
withheld. The shipping commissioner indicated that this notation was
properly placed on the articles, inasmuch as the Commissioner would not
apply payment of all the wages due the alien crewman in this category,
but the record discloses that B was told by the master after coming off
watch at midnight that his services were no longer required, that he had
no employment for him aboard the ship, following which B called the
Immigration office on the following Friday morning and informed them of
these circumstances. We think this not of great importance because of
the fact that the circumstances in the case support a "discharge' of the
alien seaman without the requisite permission as required by statute.
Counsel further assert in their brief that the "alien has since
departed voluntarily, no harm whatsoever has resulted to the United
States and the purpose of the law was served in that the alien did not
remain in the United States.'
The only indication in the entire record that the alien is no longer
in the United States is that which would seem to disclose that he
shipped foreign and there is nothing to establish that the master or the
agents assisted the alien in this departure. In these circumstances
there is but little to warrant or justify mitigation of the penalty.
The Government was put to considerable inconvenience and expense to
ascertain the true facts in connection with this entire matter and it is
our conclusion that the entire amount of penalty should be permitted to
stand.
Order: It is ordered that the appeal from the decision of the
District Director of Immigration and Naturalization, Miami, Fla.,
bearing date August 4, 1953, be and the same is hereby dismissed.
Marriage -- Validity of second marriage in California where earlier marriage terminated by Mexican divorce -- Nonquota status under section 101(a)(27)(A) of the Immigration and Nationality Act.
Under California law a divorce valid in a foreign jurisdiction is
valid in California. Therefore, a divorce obtained in Mexico, and valid
in that jurisdiction, by a resident of California from her spouse, a
nonresident of that State, who was not present at the proceedings but
was represented by counsel and who gave his written consent to the
divorce, is valid in California. Sections 150.1 and 150.2 of the
Uniform Divorce Recognition Act of 1949 do not apply since only one
party to the marriage was domiciled in California at the time the
divorce proceeding commenced. Therefore, the petitioner's second
marriage is valid under the laws of California and the beneficiary is
entitled to nonquota status under section 101(a)(27)(A) of the
Immigration and Nationality Act.
Discussion: Appeal has been taken to this Board from an order
entered August 13, 1953, denying a visa petition filed in behalf of the
husband of the above-captioned petitioner whom she married at San
Francisco, Calif., on February 24, 1953. Exceptions have been taken to
the finding of the ineligibility under section 101(a)(27)(A) of the
Immigration and Nationality Act of 1952.
The issue presented on appeal concerns the validity of petitioner's
divorce from her first husband which was granted on February 7, 1953, by
the citizen judge of first instance, at Tixtla, Guerrero, Mexico. The
district director at San Francisco concludes that under the provisions
of sections 150.1 and 150.2 of the California Civil Code (Statutes of
1949, ch. 1292, p. 2275) petitioner's marriage to her first husband was
not legally terminated prior to her marriage to the beneficiary and
therefore the beneficiary is not the spouse of a United States citizen.
The Attorney General in a recent decision concerned with the validity
for immigration purposes of a subsequent marriage where an earlier
marriage had been terminated by a divorce secured in Mexico "in
absentia' while both spouses were residents of the United States stated
the applicable rule of law to be "The validity of a marriage is governed
by the law of the place of celebration.' Matter of P , 56324/ 762, Atty.
Gen. March 18, 1952, 4, I. & N. Dec. 610. The Attorney General
expressly overruled a former decision to the extent inconsistent with
the foregoing generally accepted rule of law. (See Matter of O ,
A-6345409, 3, I. & N. Dec. 33, Atty. Gen. Sept. 16, 1949). Accordingly,
California law controls in the instant case.
The petitioner testified that she resided from January 30 or 31 until
February 7 of 1953 at Tixtla, Mexico; that her permanent residence was
at San Francisco and that the purpose of the trip to Mexico was to
secure the divorce in question. There is a showing of record that
petitioner has been separated from her first husband for 6 years; that
he was not a resident of California at the time the divorce was secured;
that he was given due notice of the pending action; that he (first
husband) gave his written consent to the divorce, and that he was
represented by counsel during the Mexican proceeding. (Petitioner's
letter of August 26, 1953, and copy of the divorce decree entered as
exhibit.)
The district director relies on section 150.1 and 150.2 of the
California Civil Code /1/ in reaching his conclusion that petitioner's
decree of divorce is not valid in the State of California. The Uniform
Divorce Recognition Act, enacted by the California state legislature in
1949, prohibits recognition of foreign divorce decrees where both
parties were California domiciliaries at the time of the proceedings.
It appears therefore that the Uniform Divorce Recognition Act may not be
controlling since there is a showing that only one of the parties to the
Mexican proceeding was domiciled in California at the time of the
Mexican decree.
The California Supreme Court has never directly ruled that domicile
is a necessary requisite for recognition of foreign country divorce
decrees. The court in the case of Rediker v. Rediker, 35 California 2d
796, 221 Pacific 2d 1, decided on August 18, 1950, subsequent to the
enactment of the Uniform Divorce Recognition Act (supra) relied upon
section 1915 of the California Code of Civil Procedure /2/ to find a
Cuban decree valid on the ground that under Cuban law the Cuban court
appeared to have jurisdiction to enter the decree and since there was no
showing of fraud or collusion the decree must be given "the same effect
as a final judgment rendered in this State.' The Rediker case (supra) in
effect holds that a Cuban decree granted by a court which satisfied all
the jurisdictional requirements of Cuban law would be entitled to as
much force and effect in California as the decree of a sister State,
even though the action was not brought at plaintiff's domicile. In
other words, a decree valid in Cuba would be valid in California, in the
absence of fraud or collusion. It is significant to note that although
the Uniform Divorce Recognition Act had recently been enacted the
supreme court made no reference to it in the Rediker case.
We find no judicial interpretation of the Uniform Divorce Recognition
Act by California courts /3/ to the effect that the requirement of
domicile stated therein is a jurisdiction restriction upon the
application of section 1915 of the Code of Civil Procedure to foreign
country divorces. In fact the weight of authority is to the contrary.
Residence in California is not jurisdictional and efforts to set aside
California divorce judgments by reason of noncompliance with section 128
of the Civil Code /4/ have repeatedly failed. /5/ Implicit in section
1915 (supra) is the requirement that the laws of the country where the
decree was rendered are to be controlling in determining whether their
judgments shall be given the same effect as one rendered in California.
In this connection the California Supreme Court has said, "There is no
allegation or proof that a judgment in Mexico has any greater force than
a judgment in this State.' All that the court was required to do,
therefore, was to give the Mexican judgment the same force to which a
California judgment would have been entitled. /6/
The only evidence before us on the issue of jurisdiction is the
petitioner's testimony and the recital in the Mexican decree. There is
also a showing that the petitioner's first husband was not domiciled in
California at the time of the Mexican proceeding; that he was given due
notice of the contemplated action in Mexico and was represented by
counsel. We find on the basis of the record before us and the foregoing
authority that the divorce obtained by petitioner at Tixtla, Guerrero,
Mexico, on February 7, 1953, and her subsequent marriage in the State of
California are not subject to collateral attack under the laws of the
State of California. Our position is supported by Justice Traynor's
comments in the Rediker case (supra) upon the public policy of the State
of California. Relative to the recognition of foreign divorces he said:
"It can no longer be said that public policy requires nonrecognition of
all irregular foreign divorces * * *. We conclude that the public
policy of this State requires the preservation of the second marriage
and the protection of the rights of the second spouse, "rather than a
dubious attempt to resurrect the original' marriage.' /7/ Accordingly we
conclude that petitioner's second marriage is valid and subsisting under
the laws of the State of California and that the beneficiary is entitled
to nonquota status under section 101(a)(27)(A) of the Immigration and
Nationality Act of 1952 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 visa petition filed pursuant to section 205(b) is hereby
approved.
(1) Uniform Divorce Recognition Act of 1949 (ch. 1292, p. 2275,
Statutes of 1949) Sec. 150.1 -- 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
proceedings for the divorce was commenced. Sec. 150.2. This section
provides that a presumption of domicile is raised if the party obtaining
the divorce was domiciled in California within 12 months prior to the
action and resumed residence within 18 months afterwards, or if a
residence has been maintained during the absence.
(2) Sec. 1915, Code of Civil Procedure, California: A final judgment
of any other tribunal of a foreign country having jurisdiction,
according to the laws of such country, to pronounce the judgment, shall
have the same effect as in the country where rendered, and also the same
effect as final judgments rendered in this State.
(3) The case of Union Bank et al. v. Gordon, 116 C.A.(2d) 681, March
13, 1953, merely held that the Uniform Divorce Recognition Act of the
Civil Code does not prevent the application of the rule of estoppel.
(4) Sec. 128 of the California Civil Code requires the plaintiff in a
divorce action to have been a resident of the State for more than 1 year
and of the county in which the complaint was filed for more than 90 days
immediately preceding the date of the filing of the action.
(5) Estate of McNeil, 155 Calif. 333, 340, 100 Pac. 1086, 1089
(1909); Hamblin v. Superior Court, 195 Calif. 364, 373, 233 Pac. 337,
341 (1925); Kelsey v. Miller, 203 Calif. 61, 87, 263 Pac. 200, 211
(1928).
(6) Title Insurance Company v. California Development Company, 171
Calif. 173, 208, 152 Pac. 542, 557 (1915).
(7) To the same effect is the recent statement of Justice Schauer of
the California Supreme Court when he said: "The public policy of this
State, in the circumstances of this case as in those considered in
Rediker v. Rediker (supra) requires recognition of the second marriage
rather than the "dubious attempt to resurrect the original' marriage.'
Dietrich v. Dietrich, 41 Adv. Calif. Reports 509, 516, 517, 261 Pac.(
2d) 269, 273, September 25, 1953. See also Watson v. Watson, 39
Calif.(2d) 305, 307, 246 Pac.(2d) 19 (1952).
Permission to return to unrelinquished domicile -- Section 212(c) of the Immigration and Nationality Act -- Not to be used where alien is abroad.
A claim to unrelinquished domicile in the United States by an alien
abroad since 1933 who is seeking to return to this country should be
submitted to the United States consul abroad for consideration as to the
issuance of a visa as a returning resident alien. Application for
advance waiver under section 212(c) of the Immigration and Nationality
Act is not appropriate in such a case.
Discussion: This is an appeal from the decision of the District
Director, Seattle denying the alien's application for the advance
exercise of discretionary relief under section 212(c) of the Immigration
and Nationality Act.
The applicant is a 65-year-old widowed female, a native and citizen
of China, who was originally admitted to the United States at Seattle,
Wash., on August 31, 1922, as a wife of a United States citizen. In
1933 she returned to China with her husband and children. They all
returned to the United States except the applicant who is now in Hong
Kong. Her husband died in this country in 1939. She has 9 children, 8
of whom are citizens and residents of the United States. The other
child was born in China and now resides there.
In her application the alien alleges that she has always intended to
return to the United States but has been unable to do so because of lack
of funds. She claims that she has never relinquished her domicile in
this country and now seeks permission to return here.
Considering all the circumstances in this case, we feel that this is
not the type of case which should be disposed of on an application for
the advance exercise of relief under section 212(c) of the Immigration
and Nationality Act. In so doing we do not pass upon the merits of the
applicant's claim that she has an unrelinquished domicile in the United
States. Since she is now abroad we believe that this claim may be
presented more appropriately to a United States consul abroad for
consideration as to the issuance of a visa to her as a returning
resident alien. The appeal will therefore be dismissed without
prejudice to the applicant's right to take such further action with
respect to her claim as a returning resident as may be deemed
appropriate.
Order: It is ordered that the appeal be and the same hereby is
dismissed.
Hearing -- Not unfair where brief not permitted to be filed prior to special inquiry officer's decision -- Section 242 of the Immigration and Nationality Act -- Deportability under third clause of section 241( a)(11) of the act -- Date of conviction not material -- Suspension of deportation, section 244(a)(5) of the Immigration and Nationality Act.
(1) There is no requirement in section 242 of the Immigration and Nationality Act or the regulations promulgated thereunder that the special inquiry officer shall hear any extended argument or that he should permit counsel to file a brief prior to the rendering of the decision. A hearing is not unfair by reason of the fact that the special inquiry officer refuses to accept a brief prior to his decision.
(2) There is no requirement in the third clause of section 241(a)( 11) of the Immigration and Nationality Act that a conviction of narcotics violation must have occurred after entry. In view of the phrase "who has been convicted' contained in that clause, it is immaterial whether the conviction occurred prior to or subsequent to the last entry.
(3) An alien who was admitted to the United States in 1920, was convicted in 1926, and last entered the United States in 1933, is not precluded from applying for suspension of deportation under section 244(a)(5) of the Immigration and Nationality Act because of the language therein which refers to an act committed or status acquired subsequent to entry since his conviction in 1926 was subsequent to his original entry in 1920.
CHARGES:
Warrant: Act of 1952 -- Convicted of violation of law relating to illicit traffic in narcotic drugs -- section 241(a)(11).
Lodged: Act of 1952 -- Convicted of violation of law governing the
sale, etc., of heroin -- section 241(a)(11).
Discussion: This case is before us on appeal from a decision of a
special inquiry officer on November 4, 1953, directing the respondent's
deportation.
The respondent is a 54-year-old male, native and citizen of Italy,
who entered the United States on July 14, 1920, and was admitted for
permanent residence. He testified that he last arrived in the United
States on August 31, 1933, following a short absence in Italy, at which
time he was in possession of a valid reentry permit. In 1926, the
respondent was convicted on three counts of an indictment which charged
respectively violations of sections 1, 2, and 8 of the Harrison Act of
December 17, 1914, as amended. He was sentenced to imprisonment for 2
years on each count, the sentences to run consecutively. The special
inquiry officer found that the lodged charge mentioned above had been
sustained and directed deportation solely on that ground. The question
of whether the respondent may be deportable also on the warrant charge
is, therefore, not before us and will not be discussed.
We have carefully considered counsels' representations in their brief
and at the oral argument. Several of these same points were previously
raised and were considered by us in Matter of M , A-2669541, Int. Dec.
No. 442, decided June 1, 1953. We there rejected contentions that an
immigation hearing violated the provisions of the Administrative
Procedure Act, that a hearing was rendered unfair by adverse publicity
and that there was a violation of due process and the ex post facto
provisions of the Constitution. In connection with counsel's assertion
that the hearing was void because there was not a compliance with the
Administrative Procedure Act, we stated in Matter of M (supra), that we
believed that it was not the congressional intent that deportation
proceedings should be subject to the specific provisions of the
Administrative Procedure Act, but rather that the procedural
requirements laid down in section 242(b) of the Immigration and
Nationality Act were considered by Congress to be within the pattern of
the Administrative Procedure Act and to meet the standards of that act.
In arguing that the proceedings violated due process and the ex post
facto and bill of attainder provisions of the Constitution, counsel
assert that, at the time of the respondent's conviction in 1926, there
was no provision of law which rendered such conviction or the
imprisonment imposed a ground for deportation. We agree that until the
effective date of the Immigration and Nationality Act, there was an
absence of any statutory provision under which the respondent could have
been deported. However, in Matter of M (supra), where there was a
specific statutory provision in 1940 that no alien should be deportable
by reason by the 1940 amendment for an act committed prior thereto, we
concluded that the alien was deportable under the Immigration and
Nationality Act. On the basis of that decision and on the authority of
Mahler v. Eby, 264 U.S. 32 (1924), we must dismiss counsel's objection
concerning the retroactive effect of the statute. Insofar as concerns
counsel's argument that the proceeding violates article I, section 9 of
the United States Constitution which provides that no bill of attainder
or ex post facto law shall be passed, the Supreme Court in Harisiades v.
Shaughnessy, 342 U.S. 580 (1952), specifically held that the inhibition
against the passage of an ex post facto law by Congress applies only to
criminal laws and not to a deportation act. Similarly, we reject the
argument that the bill of attainder provision has any application to a
deportation proceeding. In United States ex rel. Marcello v. Ahrens,
113 F.Supp. 22 (E.D. La., 1953), the court specifically upheld the
Government's position that the alien was deportable under section
241(a)(11) of the Immigration and Nationality Act despite the
contentions that the statutory provision was retroactive and violated
the due process and ex post facto provisions of the Constitution.
We turn next to counsel's contention that the special inquiry officer
refused to consider argument or permit a brief to be filed prior to his
decision and that, for this reason, the hearing was unfair. Counsel
refer specifically to a statement appearing on page 13 of the record, at
which time an objection had been made by counsel which was overruled and
the hearing officer then stated, "You are granted an exception which you
are privileged to discuss in a brief after an opinion has been
rendered.' The record shows that there was further discussion of the
matter and that counsel was informed that he might be accorded a
continuance for the purpose of preparing a defense to the additional
charge which had been lodged. Our review of the record satisfies us
that the special inquiry officer, prior to his ruling, had considered
counsel's argument in support of his objection.
We find no merit in counsel's contention that the special inquiry
officer refused to permit the filing of a brief prior to his decision.
The record does not show that any request was made for permission to
file a brief. Section 242(b) of the Immigration and Nationality Act
provides that proceedings before a special inquiry officer shall be in
accordance with such regulations, not inconsistent with that act, as the
Attorney General shall prescribe. Certain specific requirements which
such regulations were to contain were spelled out in the statute.
However, there is no requirement therein that the special inquiry
officer shall hear any extended argument or that he shall permit counsel
to file a brief prior to the rendering of the decision. Part 242 of 8
C. F. R., which contains the regulations issued pursuant to the
statutory authority mentioned, does not confer upon counsel for an alien
in a deportation proceeding the right to submit a brief prior to the
decision of the special inquiry officer. On the contrary, 8 C.F.R.
6.11(a) specifically refers to the filing of a brief in support of an
appeal to this Board; 8 C.F.R. 242.61(b) provides that the respondent
may submit a brief to the district director for consideration of this
Board in support of an appeal within 10 days after an oral decision, and
8 C.F.R. 242.53(g) provides that counsel for an alien shall be permitted
to state his objections succinctly and that they shall be entered on the
record. We find, therefore, that the procedure followed by the special
inquiry officer concerning this matter was entirely in accordance with
the regulations mentioned.
It is true, of course, that an alien, in deportation proceedings, is
entitled to a due process hearing. However, counsel's argument
concerning an asserted unfairness in the hearing, because the special
inquiry officer indicated that a brief might be submitted after his
decision had been rendered, is not supported by Morgan v. United States,
298 U.S. 468, 480 481 (1936). A statement in the Court's opinion was
quoted to the effect that a "hearing' means the hearing of evidence and
argument. The decision in the Morgan case was that the hearing, which
was required as a prerequisite to the making of a rate order by the
Secretary of Agriculture, had not been accorded where the Secretary, by
whom the order was signed, did not personally hear or read any of the
evidence presented at the hearing, or hear and consider the oral
arguments which had been made, or read or consider the briefs which had
been submitted. As a matter of fact, at page 478 the Supreme Court made
the following statement:
Again, while it would have been good practice to have the
examiner prepare a report and submit it to the Secretary and the
parties, and to permit exceptions and arguments addressed to the
points thus presented * * * we cannot say that that particular
type of procedure was essential to the validity of the hearing.
Counsel also argue that under section 241(a)(11) of the Immigration
and Nationality Act, an alien is deportable only for conduct subsequent
to his last entry. We are not impressed with counsel's argument
concerning this matter. The language of section 241(a) which is
pertinent in this case is as follows:
Any alien * * * shall * * * be deported who * * * (11) 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
any law or regulation relating to the illicit traffic in narcotic
drugs, or who has been convicted of a violation of any law or
regulation governing or controlling the * * * sale * * * of * * *
heroin * * *.
Section 241(a)(11) sets forth three classes of persons who are
subject to deportation. The phrase "is, or hereafter at any time after
entry has been,' relates solely to narcotic drug addicts. The next
clause relates to the charge stated in the warrant of arrest in the
respondent's case which is not at issue in this proceeding. The third
clause contains the phrase "who has been convicted.' There is no
requirement that the conviction must have occurred after entry. Since
the respondent is an alien who has been convicted of a violation of law
governing or controlling the sale of heroin, it is entirely immaterial
whether the conviction occurred prior to or subsequent to his last
entry. If there were any materiality in the question of whether the
conviction was subsequent to entry, there appears to be no reason why
reliance could not be placed on the respondent's first entry into the
United States in view of the definition in section 101(a)(13) which is
to the effect that the term "entry' means any coming of an alien into
the United States from a foreign port or place. Accordingly, we find
counsel's position concerning this matter untenable.
The remaining question relates to counsel's contention that the
respondent did not receive a fair hearing on the issue of discretionary
relief and that he is entitled to such relief upon the basis of the
record. The respondent applied for suspension of deportation under
section 244(a) of the Immigration and Nationality Act. The only
paragraph of that section under which he would be eligible is paragraph
(5). While counsel appear to be of the opinion that the respondent's
last entry is controlling, we do not consider that the respondent is
precluded from applying for suspension of deportation because of the
language therein which refers to an act committed or status acquired
subsequent to entry since his conviction in 1926 was subsequent to his
original entry in 1920. Our review of the record satisfies us that the
respondent received a fair hearing on the issue of discretionary relief.
At the hearing on March 4, 1953, counsel stated that the respondent
desired to apply for suspension of deportation but that some of the
evidence in support of the application was not yet available and the
hearing was adjourned. At the continued hearing on May 20, 1953,
counsel was given ample opportunity to present evidence in support of
the application and statements on behalf of the petitioner were
presented and witnesses examined at that time. The hearing was closed
on May 20, 1953, but upon counsel's motion to reopen for the testimony
of the respondent's wife, the special inquiry officer granted the motion
and a further hearing was had on June 29, 1953. After careful review of
the record, we find no merit in counsel's contention that there was any
unfairness in the hearing on the issue of discretionary relief.
There is attached to the record as part of exhibit 12 what purports
to be a transcript of proceedings in the case of the people of the State
of New York against J R P . This transcript indicates that the
defendant was indicted in June 1942 for murder in the first degree in
connection with the shooting and killing of one M D . The court, in
directing a verdict of not guilty, stated that he was personally
convinced beyond any shadow of a doubt that the defendant was the person
who had shot and killed the said M D and that he was of the opinion that
the defendant was the "trigger man' for Murder, Inc. The transcript of
testimony is not certified or authenticated in any manner and since the
respondent was acquitted, we will disregard this evidence as well as the
comments made by the judge who presided at the trial. It is clear from
exhibit 6, which is a report from the Federal Bureau of Investigation,
that the respondent was apprehended by the State police at Wyoming, Pa.,
on October 14, 1949; that he was turned over to the New York City
Police Department; and that on April 13, 1950, the charge of murder in
the first degree was dismissed.
Counsel contend that the respondent's deportation would result in
exceptional and extremely unusual hardship to him and to his native born
citizen wife. They were married in 1931. According to the testimony of
the respondent and his wife, he left their home in Brooklyn in 1940,
stating that he was going to see a cousin in another city with a view of
entering a new business. He never attempted to communicate with her and
never contributed to her support and she never heard from him until 1949
when he was arrested in connection with the murder charge. She did not
notify the police concerning his disappearance. He claims that in 1940
he was wounded by an unknown assailant but he did not report this to the
police nor did he receive medical treatment at that time. The
respondent claims that he was unemployed from 1940 until 1950 and that
he did not file a United States income tax return until 1950. The
record shows that the respondent did not register under the Alien
Registration Act in 1940 as required by law; that he did not register
as an alien of enemy nationality in 1942; and that he never registered
under the Selective Training and Service Act of 1940 although he was of
an age required to register in 1942. He did not register under the
Alien Registration Act until about 1951. His only explanation for
failure to comply with these various requirements was that he was sick
at the time.
Under section 244(a)(5), the respondent is required to prove physical
presence and good moral character during the 10 years preceding his
application for suspension of deportation. 8 C.F.R. 242.54(d)
specifically provides that the burden of establishing that the
respondent meets the statutory requirements for discretionary relief
shall be upon the respondent. Since the respondent's application for
suspension of deportation was executed on May 20, 1953, he is required
to prove physical presence and good moral character from May 20, 1943,
until at least May 20, 1953. There is almost a complete absence of any
proof of physical presence or good moral character during the period
from 1943 to 1949. We hold, therefore, that the respondent has failed
to establish that he meets the statutory requirements for suspension of
deportation.
Section 244(a) specifically provides that "the Attorney General may,
in his discretion, suspend deportation * * *.' Since the statute makes
it discretionary with the Attorney General whether or not suspension of
deportation shall be granted, no alien can claim this relief as a matter
of right. United States ex rel. Weddeke v. Watkins, 166 F.(2d) 369
(C.A. 2), cert. den., 333 U.S. 876. The respondent's failure to comply
with the Alien Registration Act for approximately 11 years, his failure
to register as an alien of enemy nationality and his failure to register
under the Selective Training and Service Act of 1940, as well as his
failure to contribute to the support of his wife during the period from
1940 to 1950, are all matters which in our opinion amply justify a
refusal of the discretionary authority to suspend deportation.
Accordingly, we agree with the special inquiry officer that suspension
of deportation and voluntary departure should not be authorized in this
case and the respondent's appeal will be dismissed.
Order: It is ordered that the appeal be and the same is hereby
dismissed.
Crime involving moral turpitude -- Unlawful attempt to evade payment of taxes imposed by the Canadian Excise Tax Act -- Excludability under section 212(a)(9) of the Immigration and Nationality Act.
A conviction for unlawfully attempting to evade payment of taxes imposed by the Canadian Excise Tax Act, formerly the Special War Revenue Act, is a conviction for a crime involving moral turpitude and an individual so convicted is excludable under section 212(a)(9) of the Immigration and Nationality Act.
Excluded: Section 212(a)(9) -- Admits and convicted of crime
involving moral turpitude: Unlawful attempt to evade payment of taxes
imposed by Canadian Excise Tax Act.
Discussion: The case comes forward on appeal from the order dated
February 4, 1953, of the special inquiry officer finding the appellant
inadmissible on the grounds stated above.
On October 27, 1949, in the Court of Sessions of the Peace for the
District of Montreal, Quebec, Canada, the appellant was convicted on his
plea of guilty of (1) failing to pay taxes due under the provisions of
the Excise Tax Act; (2) when filing returns as required by the Excise
Tax Act making therein false statements; (3) omitting to enter material
particulars in books or records of account required to be kept by
subsection 1 of section 113 of the Excise Tax Act; (4) willfully
attempting to evade payment of the sum of $6,843.84 taxes imposed by the
Excise Tax Act in said period, committing thereby infractions of the
Excise Tax Act during the period between August 1, 1945, and February 1,
1947; and was sentenced to pay a fine of $100, and to pay the sum of
$33,687.68 as additional penalty and to be imprisoned for the space of 1
year unless the several sums and all costs and charges were paid. The
appellant and others involved apparently elected to serve the term of
imprisonment.
The Canadian Excise Tax Act was formerly known as the Special War
Revenue Act. Although the record of conviction fails to reveal the
exact section of the Excise Tax Act of which appellant was convicted, it
appears, from the limited research possible, to involve section 60 of
the Revised Statutes of Canada which provides as follows:
Everyone who willfully attempts in any manner to evade or
defeat any tax imposed by this act is guilty of an offense and
liable on summary conviction to imprisonment for a term not
exceeding 2 years and not less than 12 months. 1932-33, chapter
50, section 25.
We have previously had occasion to deal with a somewhat similar
provision involving section 112, subsection 3, of the Special War
Revenue Act, chapter 179, Revised Statutes of Canada and Amending Acts,
this act being the predecessor to the present Excise Tax Act. That
provision likewise dealt with a violation with intent to evade the
payment of tax. We held that the phrases "with intent to evade the
payment of tax' as used in this statute and "with intent to defraud the
revenue' as used in this country have so exactly the same meaning as to
be used interchangeably and concluded that there was involved moral
turpitude in such a crime. Matter of A , 56041/710, 1, I. & N. Dec.
436 (1943). It is concluded that the ground of inadmissibility is
sustained by the record.
The appellant seeks to enter the United States as a temporary visitor
for pleasure. The conviction was had within the past 5 years for an
offense committed comparatively recently and there is shown no
compelling or urgent reason requiring the appellant's presence in the
United States. The case does not impress us as one requiring the grant
of discretionary relief.
Order: It is ordered that the appeal be and the same is hereby
dismissed.
Permission to return to unrelinquished domicile -- Section 212(c) of the Immigration and Nationality Act -- Nunc pro tunc -- In advance -- Lawful unrelinquished domicile.
(1) The benefits of section 212(c) of the Immigration and Nationality Act cannot be granted nunc pro tunc in the case of alien who was lawfully admitted to the United States for permanent residence in 1902 but who last entered the United States in 1931 without inspection and was found deportable under section 241(a)(2) of the act. Section 212(c) does not contain authority to waive entry without inspection which is a ground of deportation.
(2) Such discretion cannot be exercised in advance to cover convictions of crimes involving moral turpitude committed prior to entry if, in the future, the respondent should be an applicant for admission since, in view of his entry without inspection in 1931, it can no longer be said that his status has not changed or that be would be returning to a lawful unrelinquished domicile.
CHARGES:
Warrant: Act of 1952 -- Excludable at time of entry -- Prior conviction of crime -- section 241(a)(1).
Act of 1952 -- Entered without inspection -- sec. 241(a)(2).
Discussion: This case is before us on appeal from a decision of a
special inquiry officer on November 3, 1953, granting the respondent
voluntary departure and directing that he be deported if he fails to
depart voluntarily.
The respondent is a 60-year-old male, native of England and British
subject, who was lawfully admitted for permanent residence on June 12,
1902. He last entered the United States on January 26, 1931, after an
overnight absence in Cuba. The special inquiry officer found that at
the time of the respondent's last entry, he claimed to be a citizen of
the United States and that such entry was, therefore, an entry without
inspection. The special inquiry officer also concluded that the
respondent was deportable because of two convictions prior to his 1931
entry.
We have carefully considered counsels' contentions in their brief and
at the oral argument. They contend that the crimes of which the
respondent was convicted do not involve moral turpitude. On March 13,
1911, the respondent was indicted for burglary in the third degree,
petit larceny and "receiving.' In connection with this indictment, he
pleaded guilty on March 28, 1911, to the crime of unlawfully entering a
building. The record of this conviction has appended pertinent
information concerning the indictment for burglary in the third degree
which shows that the respondent was charged with breaking into and
entering a railway car with the intention of stealing, taking and
carrying away goods, chattels, and personal property from the railway
car. On November 14, 1911, the respondent was indicted for burglary in
the third degree and on November 21, 1911, he pleaded guilty to the
crime of an attempt to commit the crime of burglary in the third degree.
That record of conviction has appended information concerning the
indictment which indicates that he was charged with breaking into and
entering a building with the intention of stealing, taking and carrying
away goods, chattels, and personal property from the said building.
Counsel contend that the crimes for which the respondent was
convicted were different from the crimes stated in the indictments. We
do not agree that the plea of guilty may be completely disassociated
from the indictments in view of the discussion on our previous decision
in Matter of W , A-5636445, 4, I. & N. Dec. 241, decided January 19,
1951. We there referred to the fact that a pleading or indictment is
essential to the prosecution of a crime and to the acceptance of a plea
under the law regulating criminal procedure in the State of New York
(Code of Criminal Procedure, secs. 4, 222, 444 and 445). Sections 444
and 445 provide that upon an indictment for a crime consisting of
different degrees, a defendant may be found not guilty of the degree
charged in the indictment and guilty of any degree inferior thereto, or
of an attempt to commit the crime, or he may be found guilty of any
crime, the commission of which is necessarily included in that with
which he is charged in the indictment. On the basis of the reasoning
which was fully set forth in Matter of W (supra), we conclude that the
respondent's conviction for unlawfully entering a building must be
considered the unlawful entering of a building with the intent to commit
larceny, and that his conviction for an attempt to commit the crime of
burglary in the third degree must be considered as an attempt to break
and enter a building with the intent to commit the crime of larceny. We
hold, therefore, that the two crimes of which the respondent was
convicted involve moral turpitude. Since it is not disputed that the
respondent reentered the United States from Cuba on January 26, 1931, it
follows that the first charge stated in the warrant of arrest is
sustained.
In connection with the second charge stated in the warrant of arrest,
the respondent testified that he did not have an immigration visa,
reentry permit or other document at the time of his 1931 entry. Under
Executive Order 5426 of August 20, 1930, which was in effect from that
date until June 30, 1932, it was specifically provided that aliens who
had previously been admitted legally into the United States and who had
departed for less than 6 months to certain places, including Cuba, were
not required to present passports, visas or permits to reenter.
However, in 1931, section 3 of the Immigration Act of 1917 required the
respondent's exclusion because of his two prior convictions for crimes
involving moral turpitude.
At the hearing, the respondent admitted that a verification of
arrival related to his entry on January 26, 1931, and this was received
in evidence without objection. We are not impressed with counsel's
argument that there is an inconsistency between the statement on exhibit
3 reading "Certificate of Admission of Alien' and the fact that the form
indicates that the M M referred to therein claimed that he was a citizen
of the United States. It is not contended that the respondent was a
citizen in 1931. Hence, exhibit 3 is actually and in fact a certificate
concerning the admission of an alien (the respondent) even though he was
admitted in 1931 as a United States citizen. Likewise, we are not
impressed with the argument that the law, in existence at the time of
the respondent's entry in 1931, required the manifest of arriving United
States citizens to show only the sex, age, class of travel, and the
foreign port of embarkation. There was nothing in the law which
precluded the ascertainment of additional information from arriving
United States citizens, and it was entirely logical to require at least
the information as to whether United States citizenship was claimed and
the manner in which such citizenship had been acquired.
Exhibit 3 is a verification of arrival furnished to the New York
office of the Service on September 1, 1953, and sets forth information
contained in the manifest of the SS. Iroquois which arrived at Miami on
January 26, 1931. Since the respondent's former counsel did not
question the sufficiency of exhibit 3, we consider that the respondent
is estopped from now raising that question. If we accept the
respondent's testimony that he does not remember being questioned by an
immigration officer at the time of the 1931 entry or his specific denial
that he was questioned by an immigration officer, there is in any event,
no claim by him or other evidence that he was inspected as an alien at
the time of his arrival on January 26, 1931. Section 16 of the
Immigration Act of 1917 specifically required the examination, by
immigrant inspectors, of all aliens arriving at ports of the United
States. Based upon the presumption of official regularity in the
performance of duties prescribed by law, we entertain no doubt that,
when the respondent applied for admission to the United States at the
port of Miami on January 26, 1931, he was questioned by an immigrant
inspector to determine whether he was a citizen or an alien, and that
the respondent at that time claimed United States citizenship. We
further find, because of such claim of United States citizenship, that
the respondent was not inspected as an alien as required by law.
Counsel cited Matter of K , A-7030745, 3, I. & N. Dec. 262 (decided
by central office July 28, 1948) and Matter of B and P , 56152/825,
56154/758, 2, I. & N. Dec. 638, decided June 27, 1946 (approved by Atty.
Gen. Dec. 10, 1947). We do not consider that these cases are
particularly pertinent. In the first case, the subject was only a few
months old at the time of entry and it was apparent that there could
have been no fraud or misrepresentation on his part at the time he was
erroneously recorded as a citizen. The statement quoted by counsel from
the second decision, to the effect that the records of entry of many
aliens contain assumed or incorrect names and other errors, refers
primarily to cases in which arriving aliens had furnished incorrect
information concerning their names or other facts.
It is true, as counsel assert, that the charge of entry without
inspection was barred 3 years after the respondent's entry in 1931 and
that after 1934 and prior to the effective date of the Immigration and
Nationality Act, he would not have been deportable on that ground.
However, counsel's contention that the respondent thus had a "status' or
"condition' existing upon the effective date of the Immigration and
Nationality Act which was preserved by the savings clause in section
405(a) of that act does not appear to us to be sound in view of the
opening phrase of that provision, namely, "Nothing contained in this
act, unless otherwise specifically provided therein, * * *.' In other
words, the italicized language removes the respondent's case from the
purview of section 405(a) because it is specifically provided in section
241(d) that, except as otherwise specifically provided in section 241,
the provisions thereof shall be applicable to all aliens belonging to
any of the classes enumerated in subsection (a), notwithstanding that
the facts, by reason of which any such alien belongs to any of the
classes enumerated, occurred prior to the date of enactment of the act.
We have previously dismissed similar contentions in Matter of M ,
A-2669541, Int. Dec. No. 442, decided June 1, 1953, and Matter of I ,
E-25308, Int. Dec. No. 469, decided July 21, 1953.
Counsel's argument that the Immigration and Nationality Act would be
unconstitutional if applied retroactively, must be dismissed on the
authority of Mahler v. Eby, 264 U.S. 32 (1924), and Harisiades v.
Shaughnessy, 342 U.S. 580 (1952), in which similar contentions were
advanced concerning other immigration statutes. The retroactive effect
of another provision of the Immigration and Nationality Act was
specifically upheld in United States ex rel. Marcello v. Ahrens, 113 F.
Supp. 22 (E.D. La., 1953). In view of the foregoing, we conclude that
the respondent is deportable on the charge that he entered without
inspection.
Counsel next argue that, if we find the respondent deportable, he
should be granted discretionary relief. We find no reason to disagree
with counsel's assertion that the respondent has been, for 20 years, and
now is a person of good moral character; that his deportation would
result in exceptional and extremely unusual hardship to him and to his
wife, the latter being a native born citizen; and that she is
completely dependent upon the respondent for support.
Counsel assert that suspension of deportation may be granted to the
respondent under paragraphs (4) and (5) of section 244(a) of the
Immigration and Nationality Act, although they concede that he is
technically not within the purview of paragraph (4) since his last entry
occurred more than 2 years prior to June 27, 1952, the date of enactment
of the Immigration and Nationality Act, and that he does not meet the
requirements of paragraph (5) since he is not deportable under any of
the paragraphs of section 241(a) which are enumerated in section
244(a)(5). They argue that, if the ruling of the special inquiry
officer were followed, it would mean that no application for suspension
of deportation could be entertained under these two paragraphs prior to
June 27, 1960. While that statement appears to be correct insofar as it
concerns paragraph (4), it is incorrect as to cases within the purview
of the first part of paragraph (5) since a person who now has 10 years
physical presence and good moral character and who otherwise meets the
requirements of that part of paragraph (5) can apply for suspension of
deportation at this time.
The principal argument of counsel, concerning the respondent's
asserted eligibility for suspension of deportation, is that section
244(a)(5) is applicable to persons deportable on criminal grounds under
section 241(a)(4), that is, aliens convicted of crimes after entry;
that it was the intention of Congress that reformed criminals should be
in a position to apply for suspension of deportation; and that we
should interpret the statute in a manner which would permit the
respondent to apply for suspension of deportation. There may be no
logical reason why a reformed criminal should be able to apply for
suspension of deportation under section 244(a)(5) and not under section
244(a)(4). However, Congress established five separate categories under
section 244(a) in paragraphs (1) to (5) inclusive and unless an alien
can bring himself within one of these paragraphs, there is no statutory
authority to grant suspension. In addition, the duty of interpreting a
statute does not arise where the language is plain, /1/ and we consider
that the specific terms of paragraphs (4) and (5) of section 244(a),
with the fact that the respondent has been found deportable because of
conviction of a crime prior to entry, foreclose relief by way of
suspension. Accordingly, we will direct that his application for
suspension of deportation be denied.
With respect to the question of whether any other form of
discretionary relief may be granted, the respondent is, of course, not
eligible for relief under the 7th proviso to section 3 of the
Immigration Act of 1917, since no application for that relief was made
prior to December 24, 1952. Counsel does not contend that the authority
contained in the 7th proviso may be exercised in the respondent's case,
but asserts that the respondent should be granted relief under a
somewhat similar provision contained in section 212(c) of the
Immigration and Nationality Act of 1952. They request that section
212(c) be exercised nunc pro tunc to cure the respondent's reentry on
January 26, 1931. That subsection provides that aliens who meet the
requirements stated therein 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 section 212(a). Hence,
authority to waive a conviction of a crime prior to entry is contained
in section 212(c) since that ground of excludability appears in section
212(a)(9). However, section 212(c) does not contain authority to waive
the respondent's entry without inspection, which is a ground of
deportation under section 241(a)(2) but not a ground of excludability.
While not specifically urged by counsel, we have also given
consideration to the question of whether section 212(c) could be
exercised to waive the ground of inadmissibility relating to the
respondent's convictions for crimes involving moral turpitude if he
should in the future apply for admission to the United States. The
prerequisite to the exercise of this authority is the opening clause
which reads as follows: "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, * * *.' The term "lawfully admitted for
permanent residence' is defined in section 101(a)(20) of the Immigration
and Nationality Act 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. While the respondent was accorded the privilege of
residing permanently in the United States as an immigrant in accordance
with the immigration laws in 1902, we believe that in view of his entry
without inspection in 1931, it can no longer be said that his status has
not changed or that he would be returning to a lawful unrelinquished
domicile if he should in the future be an applicant for admission to the
United States.
We have carefully considered all of the evidence of record and
counsel's representations that the respondent has been completely
rehabilitated; that he was married to a native born citizen of the
United States in 1934 and has lived continuously with her since that
time in a quiet and respectable manner; that he is her sole support;
that the respondent has resided in the United States for over 50 years
and is now 63 years of age; and that he and his wife are in ill health.
We have observed that the respondent's last conviction was in 1913 and
that the only subsequent arrests were in 1916 and 1921 when he was
discharged. We are inclined to agree with counsel that there are
appealing circumstances in this case. Nevertheless, in view of the
provisions of existing law, there is no discretionary relief which can
be granted except voluntary departure. Since that relief has already
been authorized by the special inquiry officer, we have no alternative
but to dismiss the appeal.
Order: It is ordered that the application for suspension of
deportation be denied.
It is further ordered that the appeal be and the same is hereby
dismissed.
(1) Caminetti v. United States, 242 U.S. 470, 485 (1917).
Crime involving moral turpitude -- Exemption contained in section 212(a)(9) of the Immigration and Nationality Act does not apply where more than one crime was committed while under the age of 18 years.
An alien convicted prior to entry of two crimes involving moral
turpitude committed while under the age of 18 years is not eligible for
relief from deportation under section 212(a)(9) of the Immigration and
Nationality Act since the exemption contained in that subsection relates
to persons who have committed only one crime involving moral turpitude
while under the age of 18 years.
Discussion: This case is before us on motion of counsel for
reconsideration of the board's orders of July 17 and October 23, 1953.
Respondent, a 26-year old native and citizen of Canada, last entered the
United States at Detroit, Mich., on November 24, 1950, for permanent
residence. On April 21, 1945, respondent was convicted on a plea of
guilty in magistrate's court, Windsor, Ontario, Canada, on two theft
charges. Respondent violated section 386 of the Canadian criminal code
by stealing cigarettes from the same store on two occasions, April 13
and April 20, 1945. He was given a suspended sentence of 2 years'
imprisonment.
Respondent was held deportable by the Acting Assistant Commissioner
on September 12, 1952, as an alien who had admitted the commission of
crimes prior to entry, two charges of theft (sec. 19(a), act of 1917)
and as an alien who had been convicted of crimes prior to entry, two
charges of theft (sec. 19(a), act of 1917). The Board affirmed the
finding of deportability on July 17, 1953, holding that respondent took
the cigarettes with the intention of depriving the owner of them
permanently and had therefore been convicted of crimes involving moral
turpitude. The Board also held that respondent was treated as a
criminal and not as a wayward juvenile in 1945. Thereafter, counsel
filed a motion to reconsider, which was denied by the Board on October
23, 1953.
Counsel again broaches the question of whether respondent was
considered a juvenile offender in the above-mentioned instance, rather
than a criminal, and hence should not be considered as an alien
convicted of crimes involving moral turpitude under the rule in Matter
of O'N , 55813/162, 2, I. & N. Dec. 319 (Atty. Gen., 1945). /1/
In the Province of Ontario on April 21, 1945, the date of appellant's
conviction for theft, the definition of a male "child' was governed by
section 2 of the Canadian Juvenile Delinquency Act of 1929 (ch. 46,
Statutes of Canada, 1929; 19-20 Geo. V). /2/ Although section 2(a)
provided that the maximum age in the definition of a "child' could be
raised to 18 for a given province by proclamation, the Province of
Ontario has not seen fit to extend this definition. Consequently, since
the age for juvenile treatment of a boy on April 21, 1945, was 16 years
or under and because respondent was 17 years 10 months old on that
occasion, he was not in fact a child and was treated as a criminal.
For the above reasons, respondent was clearly deportable under
section 19(a) of the act of 1917, as an alien who has admitted the
commission of and was convicted for two theft offenses in violation of
section 386 of the Canadian Criminal Code.
Counsel contends that since respondent was under 18 at the time the
thefts were committed, he cannot be deported by virtue of the provisions
of section 212(a)(9) of the act of 1952. This section provides as
follows:
Aliens who have been convicted of a crime involving moral
turpitude (other than a purely political offense), or aliens who
admit having committed such a crime, or aliens who admit
committing acts which constitute the essential elements of such a
crime; except that aliens who have committed only one such crime
while under the age of 18 years may be granted a visa and admitted
if the crime was committed more than 5 years prior to the date of
the application for a visa or other documentation, and more than 5
years prior to date of application for admission to the United
States, unless the crime resulted in confinement in a prison or
correctional institution, in which case such alien must have been
released from such confinement more than 5 years prior to the date
of the application for a visa or other documentation, and for
admission, to the United States; * * *. Emphasis supplied.
However, by the very terms of section 212(a)(9), respondent is not
eligible for relief from deportation as an alien who committed a crime
while under 18 years, for respondent has committed two offenses of
theft. The statute requires that the alien must have committed only one
crime while under the age of 18 in order to merit relief from
deportation. Cf., Matter of C M , Int. Dec. No. 481, T-2739931 (B.I.
A., 1953) /3/ ; Matter of R , Int. Dec. No. 502, E-89656 (B.I.A.,
1953).
The record makes it clear that respondent made a complete disclosure
of all the facts surrounding his conviction for the two theft offenses
when applying for his original visa. Thereafter, respondent was
admitted to the United States for permanent residence in 1950. While it
is unfortunate that respondent was initially issued the visa and then
admitted for permanent residence, the law makes it clear that
respondent's deportation is inescapable. The motion is accordingly
denied.
Order: It is hereby ordered that the motion be denied.
(1) Citing Matter of S , 56052/519 (B.I.A. May 11, 1942); Matter of
B , 56106/828 (B.I.A. Jan. 22, 1943); Matter of M , 56137/862 (B.I.A.
April 10, 1943); Matter of A , 56038/313 (B.I.A. Aug. 7, 1943); Matter
of E , 56041/272 (A-4626745) (B.I.A. April 7, 1944), Atty. Gen. April
14, 1944.
(2) (a) "Child' means any boy or girl apparently or actually under
the age of 16 years: Provided, That in any Province or Provinces as to
which the Governor in council by proclamation has directed or may
hereafter direct, "child' means any boy or girl apparently or actually
under the age of 18 years: Provided further, That any such proclamation
may apply to boys only or to girls only or to both boys and girls.
(3) 22 Law Week 2055.
Suspension of deportation -- Section 244(a)(1) of the Immigration and Nationality Act -- Exercise of discretion.
The exercise of the discretionary power to grant suspension of deportation pursuant to section 244(a)(1) of the Immigration and Nationality Act is not warranted in the case of an alien seaman who has no close relatives in the United States and who deserted his vessel in 1944 notwithstanding the efforts made by this and Allied Governments to keep seamen on ships during the critical period of World War II.
CHARGE:
Warrant: Act of 1924 -- No immigration visa.
Discussion: The special inquiry officer entered an order on August
24, 1953, granting the respondent suspension of deportation in
accordance with the provisions of section 244(a)(1) of the Immigration
and Nationality Act. This case is before us now on certification of the
Assistant Commissioner, Inspection and Examinations Division, for final
decision pursuant to 8 C.F.R. 6.1(c).
Respondent is a 48-year-old widower, a native and citizen of China of
the Chinese race. He last entered the United States at the port of New
York on March 4, 1944, when he was admitted as a seaman and deserted his
vessel. He testified that at the time of entry he intended to remain in
the United States permanently. It is concluded from the evidence of
record that he is subject to deportation on the charge contained in the
warrant of arrest.
Respondent testified that he left China in 1941. He attended school
and resided in Hong Kong where his son, now about 18 years of age, still
resides. Respondent's wife died during the Japanese occupation of Hong
Kong in 1943. Respondent is generally employed as a waiter.
For about 2 years, until the early part of 1949 when she left him,
respondent lived with a woman as man and wife in Washington, D.C. He
testified that they were considered in the community in which they lived
as man and wife and that he supported this woman during the period they
lived together. Respondent testified that he introduced this woman to
his friends as his wife. He said that if she had not left him of her
own accord he would still be living with her. He said that this woman
was divorced at the time she was living with him.
Respondent has no close relatives in the United States. He came to
this country in 1944 and deserted his vessel notwithstanding the efforts
made by this and Allied Governments to keep seamen on ships during the
critical period of World War II. Under similar facts and circumstances
we have held in the past that suspension of deportation was not
warranted under the provisions of section 19(c)(2)(b) of the Immigration
Act of 1917, as amended. /1/
After careful consideration of the entire record in this case, it is
our conclusion that suspension of deportation is not warranted as a
matter of administrative discretion either under section 19(c)(2)(b) of
the Immigration Act of 1917, as amended, or under section 244(a)(1) of
the Immigration and Nationality Act. We feel that the maximum relief
justified in this case is voluntary departure. We will authorize the
grant of such discretionary relief with the provision that upon failure
to depart as required, the alien be deported.
Order: It is ordered that the application for suspension of
deportation be and the same is hereby denied.
It is further ordered 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, in any event not less
than 60 days, and under such conditions as the officer-in-charge of the
district deems appropriate, conditioned upon consent of surety, if any.
It is further ordered that if the alien fails to depart when and as
required, the privilege of voluntary departure shall be withdrawn
without further notice or proceedings and the alien shall be deported
from the United States in the manner provided by law on the charge
contained in the warrant of arrest.
(1) Matter of C F , A-8065701, 4, I. & N. Dec. 705; and Matter of M
L , T-2659481, April 30, 1953, Int. Dec. No. 440.
Deportability -- Section 241(a) of the Immigration and Nationality Act -- Crime involving moral turpitude -- Blackmail -- Pardon, conditional, not effective under section 241(b) of the Immigration and Nationality Act -- Savings clause -- Special inquiry officer, advice regarding discretionary relief.
(1) The language in section 241(d) of the Immigration and Nationality Act is sufficiently broad to include not only new classes of deportable aliens, but also to eliminate preexisting bars to deportation (United States ex rel., Marcello v. Ahrens, 113 F.Supp. 22 (E.D. La., 1953); United States ex rel., Barile v. Murff, 116 F.Supp. 163 (D.C. Md., 1953)). Hence an alien previously found not to be deportable under the Immigration Act of 1917, as amended, may now be deportable under the provisions of section 241(a) of the Immigration and Nationality Act. There is no provision for a statute of limitations with respect to any deportation charge contained in the Immigration and Nationality Act.
(2) Since moral depravity inheres in the crime of blackmail, that crime involves moral turpitude.
(3) A conditional pardon by the Governor of any State, whether it contains a condition precedent or a condition subsequent, is ineffective to prevent deportation under section 241(a)(4) of the Immigration and Nationality Act.
(4) The savings clause, section 405(a) of the Immigration and Nationality Act, is limited by the phrase "unless otherwise specifically provided therein.' Since Congress has specifically provided under section 241(d) of the Immigration and Nationality Act for the deportation of aliens falling within the provisions of section 241(a) of the act regardless of when the basis of deportability arose, whatever immunity to deportation was had under the act of 1917, as amended, was lost upon the repeal of that statute.
(5) Under 8 C.F.R. 242.53(c) advice as to discretionary relief is left to the sound judgment of the special inquiry officer and failure to give such advice where the alien was represented by counsel and had full opportunity to apply for discretionary relief is not reversible error.
CHARGES:
Warrant: Immigration and Nationality Act -- Excludable by law existing at time of entry, to wit: A stowaway, under section 3 of the act of February 5, 1917.
Immigration and Nationality Act -- Convicted after entry of two
crimes involving moral turpitude, to wit: Blackmail, and blackmail.
Discussion: This is an appeal from an order of the special inquiry
officer dated August 31, 1953, directing the respondent's deportation.
The respondent is a 52-year-old married made, a native and citizen of
Italy, who testified that his only entry into the United States occurred
at the port of New York about September 4 or 5, 1919, as a stowaway on
the SS. La France. He admitted that at the time of his entry he was not
inspected by an immigrant inspector. On January 15, 1936, he was
convicted in the common pleas court, Cuyahoga County, Ohio, of the crime
of blackmail committed on or about December 11, 1935, and was sentenced
to imprisonment in the Ohio State Penitentiary for an indeterminate
period and to pay the Ohio of prosecution. On April 25, 1936, he was
again convicted in the court of common pleas, Lorain County, Ohio, of
the crime of blackmail committed on or about October 15, 1935, and was
again sentenced to imprisonment in the Ohio State Penitentiary and to
pay the costs of prosecution, said sentence to begin at the expiration
of the sentence which he was then serving. The respondent testified
that he was sentenced to imprisonment for 1 to 5 years for each of said
crimes and that he was released from imprisonment on February 1, 1941.
The record contains a pardon dated July 30, 1945, signed by the Governor
of Ohio granting a pardon for the crime of blackmail for which the
respondent was convicted in Lorain County, Ohio, in April 1936. The
pardon states that it was granted to the respondent "from this time
forward, conditioned upon good behavior and conduct and provided that he
demeans himself as a law-abiding person and is not convicted of any
other crime, otherwise this pardon to become null and void.'
It appears that deportation proceedings previously were instituted
against the alien, predicated on the same two crimes which furnish the
basis of the instant proceedings. By order of this Board dated October
9, 1945, the outstanding order of deportation previously entered on
February 26, 1937, was withdrawn and the proceedings terminated upon the
respondent's submission of the pardon referred to. The special inquiry
officer has nevertheless found the respondent deportable in these
proceedings under the Immigration and Nationality Act on the warrant
charges and has ordered his deportation. Counsel has raised a number of
objections to this order, which we shall now consider.
At the outset of the hearing, counsel urged that the hearing was
illegal because it did not conform to the requirements of sections 5, 7,
and 8 of the Administrative Procedure Act, and failed to comply with the
requirements of due process of law. We have previously considered and
rejected that argument, Matter of M , A-2669541, B.I.A. June 1, 1953,
Int. Dec. No. 442. Since the hearing in the instant case was conducted
in accordance with section 242(b) of the Immigration and Nationality Act
which constitutes the sole and exclusive procedure for conducting
deportation proceedings, it meets the requirements of due process,
United States ex rel. Marcello v. Ahrens, 113 F.Supp. 22 (E. D., La. --
1953). See also Barber v. Yanish, 196 F.(2d) 53 (C.A. 9), cert. den.,
344 U.S. 817. We therefore consider counsel's objection to the hearing
procedure to be without merit.
Counsel further contends that since the respondent was not deportable
under the Immigration Act of February 5, 1917, as amended, the
proceedings under the Immigration and Nationality Act were illegal since
as applied to the respondent, they were conducted under a law which
constitutes ex post facto and retroactive legislation and is therefore
unconstitutional. This argument involves a consideration of the
position of the respondent under the respective acts in question.
The respondent was not amenable to deportation on the stowaway charge
under the act of 1917, as amended, because the prior proceedings were
not instituted within 5 years after entry, as expressly required by
section 19(a) of that act. He was not deportable under the 1917 act on
the criminal charge because in accordance with the prevailing
administrative interpretation, the pardon which he had received was
construed as meeting the requirements of section 19(a) of said act
pertaining to pardoned aliens.
However, the provisions of the Immigration and Nationality Act under
which the instant proceedings were brought are different from those of
the act of 1917, as amended. Section 241(a)(1) of the Immigration and
Nationality Act provides for the deportation of any alien who "at the
time of entry was within one or more of the classes of aliens excludable
by the law existing at the time of such entry'. Stowaways were among
the classes excludable at entry under section 3 of the act of February
5, 1917, as amended. The fact that respondent entered the United States
as a stowaway in 1919 is immaterial, for section 241(d) of the
Immigration and Nationality Act expressly states:
Except as otherwise specifically provided in this section, the
provisions of this section shall be applicable to all the aliens
belonging to any of the classes enumerated in subsection (a),
notwithstanding (1) that any such alien entered the United States
prior to the date of enactment of this act, or (2) that the facts,
by reason of which any such alien belongs to any of the classes
enumerated in subsection (a), occurred prior to the date of
enactment of this act.
In view of this language, and the fact that there is no provision for
a statute of limitations with respect to any deportation charge
contained in the Immigration and Nationality Act, it is apparent that
the respondent now falls within the purview of section 241(a)(1) of said
act.
With respect to the criminal charge, reference to the statute will
indicate that here, too, a change has been effected. Section 241(a)(4)
of the Immigration and Nationality Act renders deportable any 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 confinal therefor and regardless of whether the
convictions were in a single trial.' Section 241(d) of the Immigration
and Nationality Act, previously referred to, makes this section
applicable regardless of when the conviction occurred. Its language is
sufficiently broad to include not only new classes of deportable aliens,
but also to eliminate preexisting bars to deportation, United States ex
rel. Marcello v. Ahrens, 113 F.Supp. 22 (E.D. La., 1953); United States
ex rel. Barile v. Murff, 116 F.Supp. 163 (D.C. Md., 1953). Since moral
depravity inheres in the crime of blackmail that crime involves moral
turpitude, Librarian v. State Bar, 239 P.(2) 865 (Calif. 1952). Unless,
therefore, the respondent can claim the benefit of the pardon received
in 1945, he falls within the scope of section 241(a)(4).
Since a pardon is an act of grace and merey, inherent in the
pardoning power is the right to make the pardon absolute or conditional,
United States v. Wilson, 32 U.S. (7 Pet.) 150 (1833). A conditional
pardon is one to which a condition is annexed, the performance of which
is necessary to the validity of the pardon, Fehl v. Martin, 155 Oregon
455, 64 P.(2d) 631 (1937). Conditional pardons may be those involving
conditions precedent or conditions subsequent. If there is a condition
precedent, such condition must be performed before the pardon can take
effect. If the pardon contains a condition subsequent, such condition,
if violated, causes the pardon to become null and void (State ex rel.
Gordon v. Zangerle, 136 Ohio State 371, 26 N.E.(2) 190 (1940); The
Attorney General's Survey of Release Procedures, vol. 3, p. 205 (1939)).
On the revocation of a pardon for a breach of one of its conditions,
the legal status of the person pardoned must be regarded as being the
same as it was before the pardon was granted (State ex rel. Gordon v.
Zangerle (supra)).
It has been held that pardons granted by the governor of Ohio /1/
containing conditions similar to that in the instant case were valid
pardons under the act of 1917, as amended, on the ground that such
pardons, having been granted on conditions subsequent which might never
occur, should be regarded as removing the ground of deportability
resulting from the crimes. See Matter of B , A-5224613 (B.I.A. March
27, 1946) and Matter of B , 56083/976 (B.I.A. Nov. 1, 1946), referred to
in Matter of B , A-5829477, 3, I. & N. Dec. 551 at pages 553 and 554.
When the previous deportation proceedings against the respondent were
terminated on October 9, 1945, that action was taken because section
19(a) of the act of 1917, as amended, imposed no restriction on the type
of pardon that would be sufficient to render an alien immune to
deportation. Section 241(b) of the Immigration and Nationality Act, on
the other hand, provides as follows:
The provisions of subsection (a)(4) respecting the deportation
of an alien convicted of a crime or crimes shall not apply (1) in
the case of any alien who has subsequent to such conviction been
granted a full and unconditional pardon by the President of the
United States or by the Governor of any of the several states * *
*. Emphasis supplied.
We interpret this section as constituting a change in the existing
law. In construing a statute, Congress is presumed to mean what it says
and in the absence of any ambiguity in the statute, it is to be
construed according to its plain terms. United States Lines v.
Shaughnessy, 101 F.Supp. 61, aff'd, 195 F.(2d) 385 (C.A. 2, 1952). It
is also presumed that Congress was aware of the existing statutes, as
well as the interpretations thereof; and that a change in the statutory
language was intended to achieve a change in legislative result,
Sutherland, Statutes and Statutory Construction, volume 2, section 450
(1943 edition). In restricting the benefits of section 241(b) to aliens
who have obtained full and unconditional pardons, Congress has
unequivocally removed from the benefits of that section any pardon which
does not meet those requirements. Whether a pardon contains a condition
precedent or condition subsequent is no longer material. So long as the
pardon is conditional, it does not come within the provisions of the
section. It is our conclusion, therefore, that a conditional pardon
such as that obtained by the respondent is ineffective to prevent
deportation under section 241(a)(4) of the Immigration and Nationality
Act.
Having determined that the respondent falls within the scope of
sections 241(a)(1) and 241(a)(4) of the Immigration and Nationality Act,
we now turn to counsel's argument that an attempt to apply those
sections to the respondent would be unconstitutional because he has
obtained vested rights under the act of 1917, as amended. We find this
argument to be without merit. It is well settled that a prior
administrative determination is not res judicata in the technical sense,
Pearson v. Williams, 202 U.S. 281 (1906). It is also established that
Congress may enact legislation to render aliens deportable because of
past conduct, United States ex rel. Eichenlaub v. Shaughnessy, 338 U.S.
521 (1950). Since deportation proceedings are not criminal in nature,
the proscription against ex post facto laws does not apply, Harisiades
v. Shaughnessy, 342 U.S. 580 (1951); Mahler v. Eby, 264 U.S. 32 (1924).
We have examined the cases cited by the respondent's counsel and do not
find them to be applicable to this proceeding. Whatever limitations may
exist in other fields upon the enactment of retroactive legislation, no
such prohibition exists with respect to deportation proceedings
(Harisiades v. Shaughnessy (supra); United States ex rel. Marcello v.
Ahrens (supra)). As was stated by the court in Kaloudis v. Shaughnessy,
180 F.(2d) 489 (1950) at p. 490):
The interest which an alien has in continued residence in this
country is protected only so far as Congress may choose to protect
it; Congress may direct that all shall go back, or that some
shall go back and some may stay; and it may distinguish between
the two by such tests as it thinks appropriate.
If the respondent has any rights which are preserved, they must be
preserved by Congressional mandate. Since the act of February 5, 1917,
as amended, was repealed by section 403(a)(13) of the Immigration and
Nationality Act, only those matters are preserved which fall within the
scope of section 405(a) of the Immigration and Nationality Act. The
pertinent portion of that section provides as follows:
Nothing contained in this act, unless otherwise specifically
provided therein, shall be construed to affect the validity of any
declaration of intention, petition for naturalization, certificate
of naturalization, certificate of citizenship, warrant of arrest,
order or warrant of deportation, order of exclusion, or other
document or proceeding which shall be valid at the time this act
shall take effect; or to affect any prosecution, suit, action, or
proceedings, civil or criminal, brought, or any status, condition,
right in process of acquisition, act, thing, liability,
obligation, or matter, civil or criminal, done or existing, at the
time this act shall take effect, but as to all such prosecutions,
suits, actions, proceedings, statutes, conditions, rights, acts,
things, liabilities, obligations, or matters the statutes or parts
of statutes repealed by this act are, unless otherwise
specifically provided therein, hereby continued in force and
effect. Emphasis supplied.
We note that the scope of the savings clause is limited by the
emphasized phrase "unless otherwise specifically provided.' Since
Congress has specifically provided under section 241(d) of the
Immigration and Nationality Act for the deportation of aliens falling
within the purview of sections 241(a)(1) and 241(a)(4) of the act,
regardless of when the basis of deportability arose, whatever immunity
to deportation the respondent had under the act of 1917 was lost upon
the repeal of that statute. The conclusion reached herein is amply
supported by judicial and administrative decisions in similar
situations. Thus, it has been held that the Immigration and Nationality
Act is effective to create new classes of deportable aliens, Matter of M
(supra); United States ex rel. Marcello v. Ahrens (supra); United
States ex rel. Barile v. Murff (supra). It has also been held that the
Immigration and Nationality Act has effectively removed bars to
deportation existing under the act of February 5, 1917, as amended,
where such bars were based upon a statute of limitations (Matter of I ,
E-25308, B.I.A. July 21, 1953, Int. Dec. No. 469); or upon a timely
recommendation against deportation (ibid); or upon a legislative pardon
(Matter of R , E-080924, B.I.A. January 14, 1954, Int. Dec. No. 518).
We therefore conclude that the special inquiry officer properly found
the respondent deportable on the warrant charges.
In the notice of appeal filed by counsel one of the grounds of error
specified is that the special inquiry officer failed to inquire of the
respondent whether he wished to apply for discretionary relief.
Although this issue was not specifically raised upon the oral argument,
counsel did state that the alien has completely reformed, and he
therefore requested that the case be remanded to the filed to conduct an
appropriate investigation. Under 8 C.F.R. 242.53(c), advice as to
discretionary relief is left to the sound judgment of the special
inquiry officer. We do not consider the failure to give such advice as
constituting reversible error, where as here, the alien was represented
by counsel at the hearing and had a full opportunity to apply for
discretionary relief at that time. Since no application for suspension
of deportation or any other discretionary relief was submitted at the
hearing, the relief issue is not properly before us. Matter of M ,
E-086054, B.I.A. October 9, 1953, Int. Dec. No. 486. To remand the case
for investigation would, therefore, serve no purpose.
Since we find no error in the order of the special inquiry officer
directing deportation, the appeal will be dismissed.
Order: It is ordered that the appeal be and the same hereby is
dismissed.
(1) Art. 3, sec. 11, of the Constitution of Ohio adopted in 1851
provides that the Governor "shall have power, after conviction, to grant
reprieves, commutations and pardons, for all crimes and offenses, except
treason and cases of impeachment, upon such conditions as he may think
proper; subject, however, to such regulations, as to the manner of
applying for pardons, as may be prescribed by the law.
Ineligible to citizenship -- Excludability under section 212(a)(22) of the Immigration and Nationality Act where citizen of Switzerland claimed exemption from United States military service.
A citizen of Switzerland who obtained exemption from United States military service based on advice by the Swiss Legation that he would not thereby waive his right to apply for American citizenship is not ineligible to citizenship as defined in section 101(a)(19) of the Immigration and Nationality Act (Moser v. United States, 341 U.S. 41 (1951) and Matter of M and G , Int. Dec. No. 429, B.I.A. 1953). Such individual is, therefore, not excludable from the United States under section 212(a)(22) of the act.
EXCLUDABLE:
Act of 1952, section 313(a)(2) -- Ineligible for citizenship.
Discussion: This case is before us on appeal from a decision of a
special inquiry officer dated April 23, 1953, excluding appellant as an
alien ineligible to citizenship (sec. 212(a)(22), act of 1952).
Appellant, a 40-year-old native of Italy and citizen of Switzerland,
first entered the United States at New York June 9, 1941, as a temporary
visitor. His last entry occurred at New Orleans, La., on May 26, 1951;
on that occasion, appellant was admitted as a treaty trader and has
maintained this status since that time. On February 12, 1953, appellant
was granted preexamination and afforded a hearing at Memphis, Tenn., on
April 23, 1953. His present exclusion was the result of this
preexamination proceeding.
On May 3, 1943, appellant executed Selective Service DSS form 301 at
New York and obtained relief from military service as a neutral Swiss
alien. In this connection, appellant has submitted a letter from the
Swiss Legation, dated April 30, 1943, which caused him to file the
above-mentioned DSS form 301. This letter read as follows:
In reply to your letter of April 29 please be advised that, in
accordance with the provisions of Article II of the Treaty of
Friendship, Commerce and Extradition, concluded between the United
States and Switzerland on November 25, 1850, this legation has
requested the Department of State on August 20, 1942, to exempt
you from the liability of personal military service with the
United States Armed Forces.
We are forwarding to you, enclosed, two copies of DSS form 301,
as amended, which kindly execute and file with your local board.
This action on your part is necessary in order to complete the
exemption procedure; your local board, in accordance with
Selective Service Regulations, as amended, will then classify you
in class IV-C.
Please note that, through filing of DSS form 301, as amended,
you will not waive your right to apply for American citizenship
papers. The final decision regarding your naturalization will
remain solely with the competent naturalization courts.
Appellant stated that he has been employed by the Swiss Aluminum Co.,
Jackson, Tenn., in an engineering capacity since 1936 and that he came
to the United States in 1941 for a period of 9 months to assist on the
development of a proposed aluminum plant for the Dutch East Indies,
prior to his departure for that country. However, the outbreak of the
Pacific war late in 1941 canceled any departure plans for the Far East.
Upon the declaration of war, appellant said that he promptly registered
for Selective Service and was classified IV-A, until August 18, 1942,
when his classification was changed to I-A. Appellant stated that
originally he refused to sign a DSS form 301, because he was glad to
serve in our military forces and was unwilling to forfeit a possible
opportunity to become a United States citizen. However, the Swiss
Legation distributed a release at this time which stated:
There exists now the possibility that such exemption can be
obtained by compatriots who qualify, without the necessity of
forfeiting the right thereafter to become an American citizen, if
their request is based on article II of the Treaty of Friendship,
Commerce and Extradition, between the United States and
Switzerland of November 25, 1850. Such a petition, however, can
only be submitted by the legation on behalf of the nondeclarant
Swiss registrant.
At that time, appellant stated that he had been recalled to
Switzerland by his firm and wished to obtain clearance from his draft
board in order to expedite his departure and possible future return. In
this connection, the Legation sought an exemption from military service
for appellant from the State Department on the basis of article II of
the Treaty of Friendship with Switzerland. However, appellant's
application for an exit permit was then denied and the Swiss Legation
then sought to have appellant's draft deferment extended from October 1,
1942. At this time, the local draft board informed appellant that he
did not need further deferment after October 1, for he was not then
acceptable for military service, with no ground being listed.
In Moser v. United States, 341 U.S. 41 (1951), Moser was a Swiss
alien who first arrived in this country in 1937. In 1940, he registered
for the draft and was classified III-A (alien with dependents -- a
citizen wife and later four citizen children). In 1944, upon being
classified I-A, the Swiss Legation sought a deferment under the treaty
of 1850. The legation then directed Moser to file DSS form 301. The
Supreme Court held that the treaty and the act were not in conflict, /1/
and stated:
Petitioner had sought information and guidance from the highest
authority to which he could turn, and was advised to sign revised
form 301. He was led to believe that he would not thereby lose
his rights to citizenship. If he had known otherwise he would not
have claimed exemption. In justifiable reliance on this advice he
signed the papers sent to him by the legation. (Cf., Mannerfrid
v. United States, 200 F.2d 730 (C.A. 2, 1952.))
While the Moser case was decided under section 28(c) of the prior act
of 1924, counsel contended that the legislative history of the act of
1952 illustrated that Congress intended to continue the Moser doctrine
through the enactment of sections 212(a)(22) and 101(a)(19). /2/
Recently, the Board stated in Matter of M and G , A-2202545, 6, Int.
Dec. No. 429 (B.I.A., 1953) that the definition of "ineligible to
citizenship' in the act of 1952:
* * * substantially reenacted the language of section 28(c) of
the Immigration Act of 1924, with the addition of the words
"notwithstanding the provisions of any treaty relating to military
service.' As stated in the Moser case (supra), the conclusion that
the petitioner was not ineligible to citizenship was based upon
the fact that he did not knowingly and intentionally waive his
right to citizenship because under the misleading circumstances of
the case, he never had an opportunity to make an intelligent
election between the opposed courses required as a matter of
strict law. It is readily apparent that the exemption from
military service obtained by these applicants was not merely upon
the basis of the provisions of any treaty relating to military
service, but was based solely upon a misapprehension predicated
upon justifiable reliance upon advice given them by the Swiss
Legation.
The instant case closely parallels Moser v. United States and Matter
of M and G , for appellant placed justifiable reliance on the advice of
the Swiss Legation. Appellant also did not have an opportunity to make
an intelligent election between military service and a waiver of his
right to seek naturalization, for he was laboring under a
misapprehension about the course open to him in 1943.
Therefore, the ground of exclusion is not sustained. Petition of
Berini, 112 F.Supp. 837 (E.D.N.Y., 1953). /3/ The appeal is accordingly
sustained.
Appellant married a United States citizen on June 24, 1944, and they
have four citizen children. Appellant's wife has applied for a visa
petition in behalf of appellant and it has been approved by the
Immigration Service. In addition, the American consul at Montreal,
Province of Quebec, Canada, has found appellant's documents satisfactory
and is prepared to issue a visa to him upon notification of favorable
action in the present preexamination proceedings. /4/
Order: It is hereby ordered that the appeal be sustained and the
alien's reentry upon obtaining the required immigrant visa is
authorized.
(1) See, appendix A.
(2) See, appendix B.
(3) The court dited Matter of M and G with approval.
(4) See, appendix C.
The Supreme Court stated in Moser v. United States, as follows:
The treaty of 1850 with Switzerland was in full force in 1940
when the Selective Training and Service Act was passed. Standing
alone, the treaty provided for exemption of Swiss citizens from
military service of the United States, and if that were all,
petitioner would have been entitled to unqualified exemption.
Section 3(a) of the act, while recognizing the immunity of
citizens of neutral countries from service in our Armed Forces,
imposed the condition that neutral aliens residing here who
claimed such immunity would be debarred from citizenship. That
the statute unquestionably imposed a condition on exemption not
found in the treaty does not mean they are inconsistent. Nor
doubting that a treaty may be modified by a subsequent act of
Congress, it is not necessary to invoke such authority here, for
we find in this congressionally imposed limitation on citizenship
nothing inconsistent with the purposes and subject matter of the
treaty. The treaty makes no provision respecting citizenship. On
the contrary, it expressly provides that the privileges guaranteed
by each country to resident citizens of the other "shall not
extend to the exercise of political rights.' The qualifications
for an limitations on the acquisition of United States citizenship
are a political matter which the treaty did not presume to cover.
The following excerpts from counsel's brief are pertinent:
From Senate Report 1515, 81st Congress, 2d session, page 725, counsel
contends that --
Congress thereby made clear that its purpose was purely and
simply one of codification, i.e., that the Selective Service Act
"* * * provisions be incorporated in the proposed bill so that all
requirements for naturalization may be found in one act.'
Perhaps the most determinative aspect of the 1952 act's legislative
history, however, is the fact that the original draft of both
subsections (a) and (b) of section 315, as it came into being prior to
the decision of the Supreme Court in the Moser case contains
substantially the same language as that of the act as passed.
* * * * * * *
Moreover, it is significant that none of the later, condensed reports
in either the House of Representatives or in the Senate, relating to any
of the bills involved at any time discussed either the decision of the
Supreme Court in the Moser case or the problem there at issue. * * *
This omission is all the more significant, in view of the detail with
which such reports discuss specifically the judicial decisions which the
legislation was intended to overrule (p. 20, S.Rept. 1137, 82d Cong., 2d
sess., pp. 4, 44; H. Rept. 1365, 82d Cong., 2d sess., pp. 27, 28, 32,
82; H. Rept. 2096, 82d Cong., 2d sess.).
There have been only two (changes in the drafts of the bills
subsequent to the date of the Moser decision), each quite explicable.
First, elimination from each subsection of the word "solely.' This word
was originally inserted in a too faithful adherence to the
recommendation of Senate Report 1515, above quoted. Had "solely' been
allowed to remain, it would have permitted an alien to avoid debarring
himself from citizenship by the simple expedient of coupling with his
claim of exemption on the ground of alienage an additional claim of
exemption on some other ground, e.g. dependency or physical unfitness.
Though his claims of dependency, physical unfitness, etc., might be
denied and his deferment granted "solely' on the ground of alienage, he
would nevertheless not qualify as an "alien who * * * has applied for
exemption * * * solely on the ground that he is an alien.' Second,
prefixing to subsection (a) the qualification, "Notwithstanding the
provisions of section 405(b), * * *.' This qualification was obviously
essential under any circumstances. Section 405(b) provides that any
petition for naturalization which might be pending at the effective date
of the 1952 act must be heard and determined "in accordance with the
requirements of law in effect when such petition was filed.' Accordingly
had the qualifying language not been prefixed to section 315 (subpar.
a), an alien who had filed a petition for naturalization in 1939, and
deliberately claimed exemption from military service under either the
1940 or 1948 act, would have been entitled to favorable action upon his
citizenship petition, despite the provisions of section 315(a) and of
the 1940 and 1948 acts (pp. 21, 22).
On November 12, 1952, the Visa Division of the State Department sent
the following letter to respondent:
Reference is made to your letter of October 22, 1952, addressed
to the American consulate general at Montreal, Canada, a copy of
which was transmitted to the Department together with photostatic
copies of documents in support of your claim that an immigration
visa could be issued to you notwithstanding the fact that you
obtained exemption from military service in the United States
Armed Forces during World War II by filing with your local draft
board revised DSS form 301 in May 1943.
An examination of the information available including the
documentary evidence submitted by you indicates your case to be
embraced within the decision of the United States Supreme Court in
the case of Paul Moser v. United States of America which was
rendered on April 9, 1951. In the circumstances, it is not
considered that your filing of revised DSS form 301 would operate
to render you ineligible to receive an immigration visa.
As you intend to apply for an immigration visa at the American
consulate general at Montreal, an appropriate instruction is being
addressed to that office for its guidance in considering your
case.