"Subversive,' deportability -- After entry, voluntary member of International Workers' Order -- After entry, voluntarily affiliated with Communist Party of the United States of America -- Act of 1918, as amended by Acts of 1920 and 1940 -- Evidence.
(1) An alien, who last entered here in 1915, was found to be a voluntary member at least from 1935 to 1950 of an organization (i.e., of the International Workers' Order) which circulated, etc., printed matter advocating, etc., the overthrow by force and violence of the Government of the United States, and hence subject to deportation under the act of October 16, 1918, as amended by the acts of June 5, 1920, and June 28, 1940.
(2) The evidence established that the International Workers' Order was voluntarily affiliated from its inception in 1930 to at least 1939 with the Communist Party of the United States of America.
(3) Based on the evidence of this alien's active membership in the International Workers' Order (which included holding office in and organizing branches of this order), it was found that he was voluntarily affiliated with the Communist Party of the United States of America from at least 1935 to at least 1939, and hence subject to deportation under the act of October 16, 1918, as amended by the acts of June 5, 1920, and June 28, 1940.
CHARGES:
Warrant: Act of 1918 -- After entry he was a member of the following class, set forth in section 1 of said act: An alien who is a member of an organization, association, society and group, to wit: International Workers' Order, that writes, circulates, distributes, prints, publishes and displays, and causes to be written, circulated, distributed, printed, published, and displayed, and has in its possession for the purpose of circulation, distribution, publication, issue, and display, any written and printed matter advising, advocating, and teaching the overthrow, by force and violence, of the Government of the United States.
Act of 1918 -- After entry he was a member of the following class,
set forth in section 1 of said act: An alien who is affiliated with an
organization, association, society, and group, to wit: Communist Party
of the United States, that believes in, advises, advocates, and teaches
the overthrow, by force and violence, of the Government of the United
States.
Discussion: The case comes forward on appeal from the decision dated
June 18, 1951, of the Assistant Commissioner ordering the respondent
deported on the charges stated in the warrant of arrest modified as
follows:
The act approved October 16, 1918, /1/ as amended, /2/ in that
he was, after entry, a member of the following class, set forth in
section 1 of said act: An alien who was a member of an
organization, to wit: The International Workers' Order, that
circulated, distributed, and displayed and caused to be
circulated, distributed, and displayed, and had in its possession
for the purpose of circulation, distribution, issue, and display
printed matter advising, advocating, and teaching the overthrow by
force and violence of the Government of the United States.
The act approved October 16, 1918, as amended, in that he was,
after entry, a member of the following class, set forth in section
1 of said act: An alien who was affiliated with an organization,
to wit: The Communist Party of the United States, that believed
in, advised, advocated, and taught the overthrow by force and
violence of the Government of the United States.
Upon advice of counsel, the respondent stood mute and failed to
testify during these proceedings. Information concerning respondent's
personal history had to be obtained by recourse to Government exhibits 3
and 4 consisting of a sworn statement of the respondent made to a
Government investigator on March 16, 1950, and a copy of his alien
registration form. According to this evidence, the respondent is a
stateless alien, a native of the village of Yaholnycia, near Dolyna,
Galicia, Western Ukraine, which was located in Austria at the time of
his birth on December 21, 1891, who last entered the United States at
the port of Detroit, Mich., in November 1915 by ferry from Windsor,
Ontario, Canada. Upon the basis of Government evidence which is not
seriously controverted, the respondent was employed by the International
Workers' Order (hereinafter referred to as the IWO) from 1935 to 1950;
was a full-time paid official, the vice president and organizer of the
Ukrainian-American Fraternal Union of the International Workers' Order
New York City; was a national committee member of the Ukrainian section
of the IWO; and as vice president of the Ukrainian Society had
organized 100 other lodges in the Ukrainian Society. At oral argument
counsel for the respondent conceded that the respondent was a member of
the IWO from 1935 to at least 1947 and also conceded that he was an
official holding position of vice president and organizer of the
Ukrainian Society, a section of the IWO.
The hearing in this case was commenced on July 11, 1950, before a
hearing examiner pursuant to the requirements of the Administrative
Procedure Act of June 11, 1946 (5 U.S.C. 1001, et seq.), and regulations
promulgated pursuant thereto (8 C.F.R. 151). Counsel for the respondent
has attacked the qualifications of the hearing examiner, Mr. W , on the
ground that his previous service in various positions with the
Immigration and Naturalization Service disqualified him, that he was
prejudiced and biased; that his appointment as a hearing examiner was
temporary and since he was paid by the Service he lacked that
independence and tenure which alone could guarantee the impartiality of
the administrative process; that the hearing examiner was not assigned
to this case in rotation as required by the Administrative Procedure
Act; and that because he is subject to the provisions of Executive
Order No. 9835, 12 Federal Register 1935 (also known as the Loyalty
Order), and since the charge involved a communist or subversive charge,
the hearing examiner could not properly discharge his duties as an
impartial arbitrator because he was bound to be under pressure. Several
of these charges were renewed by counsel at oral argument. We feel that
these charges have been adequately answered by the Assistant
Commissioner in his order, and we do not intend to repeat the reasons
presented therein. Indeed, if we were to follow counsel's argument to
its conclusion, no former member of the Immigration and Naturalization
Service who had done investigative work or had participated in the
prosecution of any immigration case could hold the position of hearing
examiner even though he had never participated in the subject matter of
the controversy; and to extend the parallel a bit further, no
prosecuting attorney could ever hope to become a judge. There is no
allegation on the part of counsel that the hearing examiner in the
instant case participated in the investigation or preparation of this
case on the part of the Government, and it is difficult to understand
how the respondent was prejudiced by his selection. There is no
evidence other than mere allegation on the part of counsel that this
examiner was selected out of rotation, and it may be presumed that his
selection was made in accordance with official and regular procedure.
We accordingly conclude that the respondent was accorded a proper
hearing under the provisions of the Administrative Procedure Act which
at the time of the hearings were applicable to deportation proceedings.
(Wong Yang Sung v. McGrath, 339 U.S. 33.)
The Assistant Commissioner has in a lengthy and exhaustive decision
come to the same conclusion as the hearing examiner in finding the
respondent subject to deportation on the first warrant charge (as
modified) and also upon the second charge in the warrant of arrest. In
his decision the Assistant Commissioner carefully examined the evidence
submitted by the Government to sustain the charges, including the
testimony of witnesses, publications and documents, and also considered
the arguments of counsel as set forth in his brief. We feel that no
purpose would be served in another lengthy and prolonged review and
consideration of the evidence, inasmuch as we find ourselves in
substantial agreement with the conclusion reached by the Assistant
Commissioner. We shall content ourselves with a few pertinent
observations and we shall also comment upon the further arguments
advanced by counsel for respondent during the course of oral argument.
Counsel offered to stipulate that the respondent is a member of the
Communist Party and was willing to have the proceedings proceed upon a
basis of the charge of membership in the Communist Party. On the
refusal of the Government to accept this stipulation, counsel charged
that a justiciable controversy was not involved, but that this was a
sham proceeding brought to test a moot question in order to attack the
IWO. By these tactics counsel appears to undertake the curious position
that the respondent shall be the one who shall dictate to the Government
what charge it shall select upon which to try the question of the
respondent's deportability. This is to say the least a novel
contention. Its novelty appears to be its only virtue, since it is
clearly within the sphere of the Government's discretion to opt what
charges shall be used against the respondent in the light of the
evidence available in the preparation of its case. There can be no
doubt that a genuine controversy is present here since the charges in
the warrant of arrest laid under section 1 of the act of October 16,
1918, as amended, are predicated upon membership in the IWO, and it is
the nature of that organization which is at issue.
Admittedly, the IWO is obstensibly a mutual benefit insurance
society, incorporated under the laws of the State of New York in April
1930. /3/ It offers life insurance, sickness and accident insurance at
low rates, and functions through national group societies organized
according to national origin or descent. In addition to providing
insurance benefits, it also offers certain health, cultural,
educational, and recreational interests. However, the purported
legitimate objectives of the organization is no bar to an attempt by the
Government to pierce the corporate veil of the organization in order to
show its true nature as a Communist front or mass organization created
by the Communists to do the party's work in the foreign language mass
field. Respondent's membership and role in the IWO is acknowledged and
conceded and the nature of the organization has been established by
documents and the testimony of witnesses to sustain the charges stated
in the warrant of arrest. In the face of voluminous evidence, much of
it cumulative, that the IWO was the creature of the Communist Party and
that it engaged in the activities proscribed by the act of October 16,
1918, as amended, the respondent remained mute, and counsel produced
only one witness, an office manager named R . The function of this
witness appears to have been not to furnish any positive testimony in
opposition to that adduced by various witnesses for the Government, but
to attack the credibility of such witnesses by pointing up
inconsistencies in some of their testimony. True, it was shown that the
recollection of various witnesses was not perfect in all details and
that inconsistencies were present. However, an overwhelming amount of
unrefuted evidence fully established the contentions advanced by the
Government, and in the face of such damaging testimony and evidence,
inferences unfavorable to the respondent can be drawn from his silence
and from the failure to produce controverting evidence.
Counsel has complained regarding the admission of certain testimony
by witnesses and of certain documents, and the hearing examiner has
ruled from consideration in arriving at his decision certain of the
evidence adduced at the hearing; and, in addition, the Assistant
Commissioner has likewise ignored other evidence which was admitted by
the hearing examiner. Even if some evidence was incorrectly admitted,
it does not render the hearing unfair or result in a denial of due
process. As was stated by Chief Justice Stone in his dissent in which
he was joined by Justices Roberts and Frankfurter in the case of Bridges
v. Wixon, 326 U.S. 135, 176 (1945):
No principle of law has been better settled than that the
technical rules for the exclusion of evidence applicable in trials
and courts, particularly the hearsay rule, need not be followed in
deportation proceedings more than in other administrative
proceedings. (U.S. ex rel. Bilokumsky v. Tod, 267 U.S. 157, 68
L.Ed. 225; U.S. ex rel. Tisi v. Tod, 264 U.S. 133, 68 L.Ed. 591;
U.S. ex rel. Vajtauer v. Commissioner of Immigration, 273 U.S.
103, 71 L.Ed. 563; Consolidated Edison Co. v. National Labor
Relations Board, 305 U.S. 197, 229, 230, 83 L. Ed. 126, 140,
1941; Opp Cotton Mills v. Administrator, Wage & Hour Division,
312 U.S. 126, 155, 85 L.Ed. 624, 641.)
The only objections that can be taken to the evidence in such
proceedings are not its admissibility, but to its probative value.
See Consolidated Co. v. National Labor Relations Board (supra).
The hearing examiner before whom the deportation proceedings were
conducted had the opportunity to observe the demeanor of the witnesses
and to hear their testimony. He was in the best position to judge for
himself the credibility and weight to be attached to their testimony.
He has chosen to accept their testimony, and no attack or impeachment of
the credibility of the witnesses has been produced by counsel to permit
us to say that action of the hearing examiner was so erroneous or so
arbitrary as to constitute a denial of due process.
Counsel for respondent has vigorously attacked the admissibility of
evidence regarding the proscribed activities of the IWO and its
domination by Communist Party officials prior to 1935 which marked the
commencement of the respondent's membership in the IWO. He has also
attacked the action of the hearing examiner in reversing himself as to
the admissibility of certain evidence after a short recess to consult
legal precedent. As to the second point, it is difficult to see how the
action complained of could be called improper; in fact, in view of the
doubt in the hearing examiner's mind as to the admissibility of
evidence, his action in recessing the hearing and consulting legal
precedence would appear to be the only proper course to pursue. As to
the first point, we believe that evidence as to the nature of the
organization prior to the period of the respondent's membership therein
was admissible in order to lay a foundation upon the basis of historical
background in order to reveal the true nature of the organization. A
study of the case consulted by the hearing examiner, Kessler v.
Strecker, 95 F.(2d) 976, rehearing denied 96 F.(2d) 1020, affirmed 307
U.S. 22, 83 L.Ed. 1082 (1939), shows that the decision in the Supreme
Court was to the effect that present membership or affiliation, and not
past membership and affiliation in a proscribed organization was
necessary to be established to require deportation under the act of
October 16, 1918, as amended by the act of June 5, 1920. /4/ The Court
in the Strecker case further stated that in view of the Court's reading
of the statute it was unnecessary to pass upon conflicting contentions
of counsel concerning the adequacy of testimony before the Secretary of
Labor as to the purposes and aims of the Communist Party or the
propriety of the Court's taking judicial notice thereof. Nor is it
relevant or pertinent to an argument regarding error in admitting
evidence prior to the critical period of membership to cite language
such as used in Schneiderman v. U.S., 320 U.S. 118 (1943), to the effect
that since the immediate problem was the determination with certainty of
petitioner's beliefs from 1922 to 1927, events and writings since that
time had little relevance. The authority cited by counsel referred to
evidence subsequent in time to the critical period of membership. In
the instant case proffered evidence prior in time to the critical period
of membership was submitted, the purpose of which was to lay a
foundation as to the nature of the organization subject to being tied in
by subsequent testimony during the admitted period of respondent's
membership as to the nature of the organization. /5/ We believe that
this evidence as to the historical background of the organization which
has been tied in and related to the organization by subsequent evidence
as to the nature of the organization, is admissible. As was indicated
by the court in Kjar v. Doak, 61 F.(2d) 566 (C.C.A. 7, 1932), in the
absence of evidence to the contrary, it would be presumed that the
organizations referred to continue to advocate and teach the same
principles as are set forth in the documents produced. In the instant
case, however, evidence has been produced to establish the continuing
proscribed nature of the organization during the period of respondent's
membership.
Counsel has attacked the second charge stated in the warrant of
arrest, contending that there is no statutory authority for deportation
for membership in an organization which is proscribed because of
affiliation with a second proscribed organization. In the charge it is
stated that the respondent is subject to deportation under the act of
October 16, 1918, as amended June 5, 1920, and June 28, 1940, in that he
was after entry a member of a following class set forth in section 1 of
said act: An alien who was affiliated with an organization, to wit:
The Communist Party of the United States, that believed in, advised,
advocated, and taught the overthrow by force and violence of the
Government of the United States. For the purpose of this proceeding
both sides have accepted the definition of affiliation (in addition to
the limited definition set forth in section 1(e) of the act of October
16, 1918, as amended), which has been promulgated by the Supreme Court
in the decision in Bridges v. Wixon, 320 U.S. 135. Although in the
Bridges case the issue involved the question of what conduct by an
individual constituted affiliation with an organization, whereas the
question here is what conduct or ties between organizations is
equivalent to affiliation in the organizational or corporate sense,
nevertheless resort to the court's decision is helpful.
In the case of Bridges v. Wixon (supra), the Court stated:
whether intermittent or repeated, the act or acts tending to
prove "affiliation' must be of that quality which indicated an
adherence to or a furtherance of the purpose or objectives of the
proscribed organization as distinguished from mere cooperation
with it in lawful activities. The act or acts must evidence a
working alliance to bring the program to fruition.
The Court quoted from the decision in U.S. ex rel. Kettunen v.
Reimer, 79 F.(2d) 315, 317 (C.C.A. 2, 1935), to the effect that such
affiliation was 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 cooperate 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 a charge of
the breach of good faith.' The Supreme Court approved the language of
Dean Landis in the first Bridges report to the effect: "In the
corporate field its use embraces not the casual affinity of an
occasional similarity of objective, but ties and connections that,
though less than that complete control which parent possesses over
subsidiary, are nevertheless sufficient to create a continuing
relationship that embraces both tenets within the concept of a system.
In the field of eleemosynary and political organization the same basic
idea prevails.' The Court stated that "affiliation' as used in the
statute imports less than membership but more than sympathy. The Court
in Bridges v. Wixon did not decide the question of whether one could be
a member of an organization without becoming affiliated with the
Communist Party within the meaning of the statute, since it found that
Bridges was not a member of the organization.
Legal authority is not lacking to support the view that one who is a
member of an organization which in turn is an affiliate of a proscribed
organization is himself an affiliate of the proscribed organization.
Thus in the case of Kjar v. Doak, 61 F.(2d) 566, 569 (C.C.A. 7, 1932),
it was held:
Whether the Communist Party or the Trade Union Party League
believes in and advocates the same things as the Communist
International is not material. It is sufficient if they are
affiliated, and that fact, under the evidence cannot be denied.
Nor was it necessary to prove that appellant had knowledge of the
contents of the programs of the several organizations, or any one
of them. It is sufficient if the evidence showed that he was a
member of, or affiliated with, such an organization as
contemplated by the statute. The documents objected to by
appellant were properly admitted into evidence. Murdoch v.
Clark, 53 F.(2d) 155 (C.C.A.). That evidence clearly
characterized the Communist International as an organization
contemplated by the statute now under consideration. The
Communist Party of America is an affiliate of that organization,
and by reason of that affiliation appellant, who admits membership
in the latter, must be considered an affiliate of the former
organization. A perusal of the program of the Trade Union Unity
League in connection with the other evidence in the cause
convinces us that it is quite closely affiliated with both the
Communist International and the Communist Party of America.
To the same effect, see In Re Saderquist, 11 F.Supp. 525 (D.C. Me.,
1935) aff'd. 83 F.(2d) 890 (C.C.A. 1, 1936). We are satisfied that the
evidence in the instant case establishes the affiliation of the
International Workers' Organization with the Communist Party of America
and by virtue of membership in the former organization respondent comes
within the proscription of the Act of October 16, 1918, as amended.
Counsel contends that in order to constitute affiliation as defined
in the Bridges case and in other cases there must be consciousness of
purpose; i.e., that the subject must know what he is affiliating with,
and the purpose of the organization with which he is affiliated; and in
this connection, consciousness of purpose cannot embrace what took place
prior to the time the person joined the organization. In support of
this proposition counsel cites court cases and, particularly
Schneiderman v. U.S., 320 U.S. 118, 87 L.Ed. 1796 (1943), and an
administrative decision in Matter of L , 1, I. & N. Dec. 450 (BIA,
1943). The Schneiderman case is not particularly appropriate, since it
is not a deportation proceeding but was a proceeding to cancel a
naturalization certificate in which the court held that the burden was
on the Government to establish the decisive fact by, clear, unequivocal,
convincing evidence; and in which the court ruled that the Government
had not carried the burden of such proof on the basis of mere membership
in the Communist Party and in the absence of overt acts indicating a
reprehensible interpretation of the organization's program. A like
quantum of evidence is not required in deportation proceedings. Even in
the Schneiderman case a vigorous dissent was entered by Chief Justice
Stone in which he was joined by Justices Roberts and Frankfurter. This
dissent concluded that the evidence below was sufficient to establish
that the petitioner, by virtue of his membership in the Communist Party
organizations which were opposed to the principles of the Constitution
and which advised, advocated and taught the overthrow of the Government
by force or violence believed in and supported the principles of those
organizations and was not attached to the principles of the Constitution
at the time of his naturalization; and held that it was not within the
judicial competence of the court to set those findings aside. /6/
Counsel cited Matter of L (supra), which in turn cited Matter of C Z ,
file No. 56106/708, on the proposition that membership in the IWO is
not membership in an organization, society or group that believes,
advances, or teaches the overthrow by force or violence of the
Government of the United States, since such an argument would require an
alien to determine whether the innocent organization he joins is or is
not dominated by the proscribed organization. However, this statement
must be viewed in the light of the limitation imposed in the preceding
paragraph where the following was stated:
We can concede that one might employ membership in the
International Workers' Order as a means of achieving affiliation
with the Communist Party. Therefore, each case wherein membership
in the International Workers' Order is found as a fact should
receive extra scrutiny from the Immigration and Naturalization
Officers, in order to determine whether that membership exists in
the individual case for the purpose of achieving affiliation with
the Communist Party.
In the instant case, it has been established that the respondent
whose membership dates back to 1935, was not a mere rank-and-file
member, but was a vice president of a foreign language section of the
IWO and was an active organizer, who was applauded in the official organ
of the IWO for his efforts in having organized 100 branches of the
order. To say that such a person was unaware of the proscribed
activities of the IWO is to close one's eyes to what is plainly evident,
and the respondent's silence is eloquent confirmation of such knowledge
on his part. It is pertinent to refer to the rejoinder of the court in
the case of U.S. ex rel. Harisiades v. Shaughnessy, 187 F.(2d) 137, 141
(C.A. 2, Feb. 6, 1951), to the argument that the alien's joining the
Communist Party was permissible political activity because he was not
found to have personally advocated overthrow of the Government by force:
A sufficient answer is that there is nothing in the
Constitution which imposes upon deportation officials the
difficult and uncertain task of distinguishing between those
members of a subversive group who individually advocate the
forbidden course and those who do not. The interest to be
preserved of those who do not personally advocate the illegal
means is at most the privilege of joining the group, and this is
not of enough importance to outweigh the public interest in a
workable rule which avoids the administrative difficulties of
making a separation between those who do and those who do not
favor the illegal objective of the group. /7/
Nor can we perceive that counsel can derive any comfort from the
decision of the Supreme Court in the group of cases headed by the case
of the Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71
S.Ct., 624, 95 L.Ed. 817 (April 30, 1951), and particularly
International Workers' Organization, Inc. v. McGrath, 341 U.S. 134, 95
L.Ed. 83. That case involved a complaint asking only for declaratory
and injunctive relief requesting the striking of the name of the
designated organization from the Attorney General's list published under
color of Presidential Executive Order No. 9835. The decision was
entered upon the state of pleadings raised by the Attorney General's
motion to dismiss the case, as result of which the court decided that a
justiciable issue was presented, and the court reversed and remanded
with instructions to deny the respondent's motion that the complaint be
dismissed for failure to state a claim upon which relief could be
granted, carefully noting, however, that whether the complaining
organizations were in fact communistic or whether the Attorney General
possessed information from which he could reasonably find them to be so
must await determination by the district court upon remand.
Upon a full and careful review of the documentary evidence and oral
testimony, the exceptions and brief filed, and representations made at
oral argument and after careful analysis of the opinions of the hearing
examiner and the decision of the Assistant Commissioner, we find that
the grounds of deportability found by the Assistant Commissioner are
sustained. We shall, therefore, dismiss the appeal.
Order: It is ordered that the appeal from the decision of the
Assistant Commissioner be and the same is hereby dismissed.
(1) 40 Stat. 1012, 8 U.S.C. 137.
(2) Act of June 5, 1920, 41 Stat. 1008, 8 U.S.C. 137; act of June
28, 1940, 54 Stat. 673, 8 U.S.C. 137.
(3) Of interest is the fact that upon a petition of liquidation and
dissolution of the Department of Insurance of the State of New York an
order was entered on December 15, 1950, by the supreme court of the
State of New York restraining the IWO founding, from transacting any new
business, further present business and from disposition of assets except
under the joint supervision, control, and signature of the
superintendent of insurance.
(4) The amendment of June 28, 1940, 54 Stat. 673, made past
membership or affiliation also a ground of deportation.
(5) In U.S. v. Dennis, 183 F.(2d) 201, 231 (C.A. 2, 1950), affirmed
341 U.S. 494, 95 L.Ed. 1137 (1951), the court of appeals stated: "The
same doctrine applies to evidence occurring before the acts charged had
become a crime at all; e.g., in the case at bar the visits of some of
the defendants to Moscow before 1940. Just as in the case of events
occurring before the dates laid in the indictment, so events occurring
before the conspiracy had become a crime, may have logical relevance to
the conclusion that the conspiracy continued until after 1940. It is
toto caelo a different question whether we are treating them as media
concludendi or as the factum itself.
(6) In the case of U.S. v. Dennis, 183, F.(2d) 201, 210, a criminal
prosecution under the Smith Act (18 U.S.C.A. 2385), Judge Learned Hand
at p. 210 made the following comment on the Schneiderman case: "All
that can be thought relevant to the case at bar is a passage in the
opinion, which may have been meant to imply that only agitation and
exhortation calling for present violent action which creates a clear and
present danger of public disorder or other substantive evil * * * will
show that one is not attached to the "principles of the Constitution'.'
Of the 8 justices who took part in the decision, 3 dissented and of the
5 who concurred, 2 wrote separate opinions. It is true that both these
said that they joined in the opinion in chief; but we should hesitate
to say that by this they meant to commit themselves to the proposition
that a man may be attached to the principles of the Constitution, whose
violent overthrow he will continue to advocate and teach, because he
knows that the execution of his purpose must be deferred for a time. We
should feel bound to await a more definite declaration before accepting
a doctrine, which with deference, seems to us so open to doubt.
"On appeal to the Supreme Court, the conviction was sustained, and in
a concurring opinion Justice Frankfurter observed (341 U.S. 530, 531):
"In Schneiderman v. U.S. * * * and Bridges v. Wixon, * * * we did not
consider the extent of the power of Congress. In each case, by a
closely divided count, we interpreted a statute authorizing
denaturalization or deportation to impose on the Government the
strictest standards of proof.'
(7) In this connection reference must be had to the limitation
imposed upon the act of October 16, 1918, as amended by the act of March
28, 1951 (Public Law 14, 82d Cong; ch. 23, 1st sess., H.R. 2399),
restricting the terms "members of' and "affiliated with' where used in
the act of October 16, 1918, as amended, to include only membership or
affiliation which is or was voluntary, and not to include membership or
affiliation which is or was solely (a) when under 16 years of age; (b)
by operation of law; (c) for purposes of obtaining employment, food
rations, or other essentials of living, and where necessary for such
purposes. Pursuant to this act, we necessarily exclude from the
conclusions reached in this case the ordinary rank-and-file members of
the IWO who joined merely for the cheap insurance benefits, and took no
part in directing or formulating the policies of the organization.
Filipino -- Citizenship -- Acquisition -- Section 201(e) of the Nationality Act of 1940.
(1) Until July 4, 1946, the date on which the independence of the Philippine Islands was recognized, the Philippine Islands were outlying possessions of the United States within the meaning of section 201(e) of the Nationality Act of 1940, as amended.
(2) A child born in the Philippine Islands in 1942 of a native
Filipino father and of a native Filipino mother, the latter having
acquired United States citizenship under section 1993 of the Revised
Statutes, is deemed to have acquired United States citizenship at birth
pursuant to the provisions of section 201(e) of the Nationality Act of
1940, as amended.
Discussion: The above-named subject claims that he acquired
citizenship of the United States at birth in the Philippine Islands
through his mother, E C S . The District Director at Los Angeles,
Calif., has denied the subject's application for a certificate of
citizenship on the ground that the subject's mother did not reside in
the United States prior to the subject's birth and therefore she could
not meet the residence requirements of section 201(g) of the Nationality
Act of 1940. The subject's mother has appealed from said denial order.
The question presented is whether the subject acquired United States
citizenship under section 201(g) of the Nationality Act of 1940, or
under any other applicable provision of law.
The record shows that the subject was born in the Philippines on
April 28, 1942. His father, F D S , a native and subject of the
Philippines, is deceased. His mother, E C S , who was born in the
Philippines on July 15, 1915, acquired United States citizenship under
section 1993, Revised Statutes, by reason of the birth of her father, T
A C , in New York. The subject's parents were married in Manila,
Philippines, on June 29, 1941, and the subject's mother resided
continuously in the Philippines from the time of her birth until June 9,
1949, when she was admitted to the United States at the port of San
Francisco, Calif. She was admitted as a United States citizen and the
subject, who accompanied her, was also admitted as a United States
citizen.
The denial of the subject's application under section 201(g) of the
Nationality Act of 1940, was based on the fact that the subject's mother
had never resided in the United States. It is evident therefrom that no
consideration was given to the question of the mother's residence in an
outlying possession of the United States or to the status of the
Philippine Islands as an outlying possession of the United States prior
to July 4, 1946, on which date the Independence of the Philippine
Islands was recognized and on which date the United States relinquished
all rights of possession, supervision, control, or sovereignty over the
territory and people of the Philippine Islands.
Section 201(e) of the Nationality Act of 1940 provides that a person
born in an outlying possession of the United States of parents, one of
whom is a citizen of the United States who resided in the United States
or one of its outlying possessions prior to the birth of such person, is
a citizen of the United States at birth.
Section 201(g) of said act provides that a person born outside the
United States and its outlying possessions of parents, one of whom is a
citizen of the United States who, prior to the birth of such person, has
had 10 years' residence in the United States or one of its outlying
possessions, at least 5 of which were after attaining the age of 16
years, the other being an alien, is a citizen of the United States at
birth, with certain provisions dealing with retention of said
citizenship.
Section 101(d) of the Nationality Act of 1940 defines the term United
States when used in a geographical sense means the continental United
States, Alaska, Hawaii, Puerto Rico, and the Virgin Islands of the
United States. Section 101(e) of said act defines the term "outlying
possessions' as meaning all territory, other than specified in section
101(d) over which the United States exercises rights of sovereignty,
except the Canal Zone. $There appears to be no necessity to review the
history of the acquisition of the Philippine Islands in order to show
that they come directly within the meaning of "outlying possessions' of
the United States as used in the Nationality Act of 1940, and that such
status existed until July 4, 1946, when their independence was
proclaimed. For the purposes of the perinent sections of the
Nationality Act of 1940 it may be accepted as common knowledge that
until July 4, 1946, the Philippine Islands were outlying possessions of
the United States. The legislative history of the Nationality Act of
1940 shows that the Philippine Islands were so considered. (See pp. 39,
398, and 412 of the hearings before the Committee on Immigration and
Naturalization, House of Representatives, 76th Cong., 1st sess.)
Since the subject was born on April 30, 1942, in the Philippine
Islands at a time when those islands were considered to be an outlying
possession of the United States, and since one of his parents, his
mother, was then a citizen of the United States who resided in said
Philippine Islands, an outlying possession, prior to the birth of the
subject, it appears that he became a citizen of the United States at
birth under section 201(e) of the Nationality Act of 1940. Furthermore,
in view of the foregoing, it appears that section 201(g) would have no
applicability under the facts presented in this case. Section 201(e)
applies and the subject is entitled to a certificate of citizenship
under that section and section 339 of the Nationality Act of 1940.
Order: It is ordered that the appeal from the denial by the district
director be sustained and that the subject's application for a
certificate of citizenship be granted.
Filipinos -- United States resident before May 1, 1934 -- status for immigration purposes -- deportability under act of October 16, 1918, as amended.
Communist Party of the United States -- Deportability of native and citizen of the Philippine Islands, formerly a member of party.
(1) Filipino native, residing in United States since 1926, deemed to be alien for immigration purposes, since May 1, 1934, effective date of Philippine Independence Act of 1934. (See also Matter of V , 2, I. & N. Dec. 340.)
(2) Filipino native who arrived in the United States in 1926 made "entry into the United States' within meaning of act of October 16, 1918, as amended.
(3) Filipino native, residing in the United States since 1926, deportable under act of October 16, 1918, as amended because of past voluntary membership in Communist Party of United States during period from February, 1938 to December 1939. (See also Matter of O , 3, I. & N. Dec. 736.)
(4) Deportability under act of October 16, 1918, as amended, based on prior membership in Communist Party of United States not dependent on coexistence of alienage and membership.
CHARGES:
Warrant: Act of October 16, 1918 as amended -- After entry, alien who was member of and affiliated with the Communist Party of the United States.
Act of October 16, 1918 as amended -- After entry, alien who advocates and teaches, and who was a member of organization that advocates and teaches overthrow, by force and violence, of the Government of the United States.
Act of October 16, 1918 as amended -- After entry, alien member of
organization that distributes, etc., and causes to be distributed, etc.,
and that has in its possession for the purpose of distribution, etc.,
printed matter advocating overthrow, by force and violence, of the
Government of the United States.
Discussion: The case comes forward on appeal from the decision dated
August 1, 1951, of the Assistant Commissioner ordering the deportation
of the respondent pursuant to law on a charge based upon the act of
October 16, 1918, as amended, in that he was, after entry, a member of
the following class set forth in said act: an alien who was a member of
the Communist Party of the United States.
The facts of the case are fully set forth in the exhaustive decision
dated January 22, 1951, of the hearing officer, which has been adopted
with slight modification by the Assistant Commissioner. Briefly, the
record relates to a native and citizen of the Republic of the
Philippines, 49 years old, male, who last entered the United States for
permanent residence at the port of Seattle, Wash., on April 29, 1926,
ex-SS. President Jackson. A careful consideration of the evidence
adduced satisfies us that the respondent was a member of the Communist
Party of the United States from about February 1938 to December 1939 and
it is concluded that he is subject to deportation under the provisions
of the act of October 16, 1918, as amended by section 22 of the Internal
Security Act of 1950 because of his membership in the Communist Party of
the United States.
The hearing officer and the Assistant Commissioner have considered
and disposed of the exceptions raised by counsel below. We shall treat
only those exceptions raised in counsel's brief on appeal from the
decision of the Assistant Commissioner. In his brief, counsel argues
that the respondent is not deportable under the provisions of the
immigration laws of the United States, basing this conclusion upon the
following allegations:
1. That respondent is not now an alien.
2. That respondent has never been a member of the following
class: "aliens who are members of or who are affiliated with (i)
the Communist Party of the United States * * *.'
3. That respondent has never entered the United States within
the meaning of the Immigration Laws and therefore "at the time of
entering * * * or * * * at any time thereafter' has never been a
member of a deportable class.
4. Even if it should be determined that under the act of 1934
"the Philippine Independence Act' (48 Stat. 462) respondent is to
be considered "as if he were an alien' he is nevertheless not
deportable:
(a) He was not proceeded against while a member of the
Communist Party. (See Kessler v. Strecker, 307 U.S. 22, 1939.)
(b) He has not been found to be a member of any deportable
class under the laws in effect in 1984; i.e., at the time of the
adoption, by Congress, of the Philippine Independence Act (48
Stat. 462).
While for the purpose of the proceeding it may be conceded that at
the time of his entry on April 29, 1926, the respondent may have enjoyed
certain rights or privileges as an American national, (The Treaty of
Paris, (between United States and Spain) ratified April 11, 1899, 30
Stat. 1754; act of July 1, 1902, 32 Stat. 691, amended March 23, 1912,
37 Stat. 77; act of August 29, 1916, 39 Stat. 546), the finding of
alienage is predicated in the first instance upon the provisions of the
Philippine Independence Act, approved March 24, 1934, effective May 1,
1934, section 8(a)(1), of which provides:
For the purposes of the Immigration Act of 1917, the
Immigration Act of 1924 (except secs. 13(c)), this section, and
all other laws of the United States relating to the immigration,
exclusion or expulsion of aliens, citizens of the Philippine
Islands who are not citizens of the United States shall be
considered as if they were aliens (48 Stat. 466; 48 U.S.C.
1232).
The Philippine Independence Act of 1934 culminated in the treaty of
July 4, 1946, effective October 22, 1946, 61 Stat. 1174, proclaiming the
independence and sovereignty of the Republic of the Philippines. In view
of these latter two enactments, there can be no longer any doubt that
the respondent is an alien, (U.S. v. Gancy, 54 F.Supp. 755 (D.C. Minn.
1944) aff'd 149 F.(2d) 788, cert. den., 326 U.S. 767, rehearing denied
326 U.S. 810; Cabebe v. Acheson, 183 F.(2d) 795 (C. A., 1950)).
Counsel's second point in his brief is that the respondent has never
been a member of the following class: "Aliens who are members of or who
are affiliated with (i) the Communist Party of the United States,'
contending whether or not the respondent is now an alien, there was
never the concurrence between alienage and membership in the Community
Party in the United States which is necessary under the terms of the
statute to place respondent in a deportable class. Counsel does not in
his brief choose to discuss the evidence as to membership in the
Communist Party of the United States. As we have previously stated, we
are satisfied that the evidence establishes such membership, and counsel
for the purpose of the brief conceded the point. The deportability of
the respondent in this proceedings is predicated upon the following
pertinent provisions of the act of October 16, 1918, as amended by
section 22 of the Internal Security Act of 1950 (8 U.S.C. 137):
Section 1. That any alien who is a member of any one of the
following classes shall be excluded from admission into the United
States:
(2) Aliens who, at any time, shall be or shall have been
members of any one of the following classes: * * *
(C) Aliens who are members of or affiliated with * * * (i) the
Communist Party of the United States.
Section 4(a). 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 enumerated in * * *. Section 1(2) of this Act,
shall, upon the warrant of the Attorney General, be taken into
custody and deported in * * *. Section 1(2) of this Act, Act of
February 5, 1917. The provisions of this section shall be
applicable to the classes of aliens mentioned in this act,
irrespective of the time of their entry into the United States.
Counsel urges that there must be a concurrence of alienage at the
time of membership of the respondent in the Communist Party in order to
bring the respondent within the deportable class set forth in the act of
October 16, 1918, as amended. We have previously stated our position
that the respondent was, in fact, an alien at the time of his membership
in the Communist Party during the period of February 1938 to December
1939. Even if we were to adopt counsel's suggestion that at best the
respondent did not become an alien until the treaty of 1946, we disagree
with the position taken by counsel. Judicial precedent to support this
view may be found in the case of U.S. ex rel. Eichenlaub v. Shaughnessy,
338 U.S. 521, 94 L.Ed. 307 (1950). This case involved a person who,
while a naturalized citizen was convicted of conspiracy to violate the
Espionage Act of 1917; whose citizenship was thereafter revoked in a
denaturalization proceeding; and whose deportation was sought
thereafter under the Act of May 10, 1920 (8 U.S.C. 157). The finding of
undesirable resident under the deportation statute was based upon the
relator's conviction of conspiracy to violate the Espionage Act of 1917.
The majority opinion, delivered by Mr. Justice Burton held in pertinent
part as follows:
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
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.
By analogy, the language of the Court is appropriate to this case.
Here, there has been established membership in the proscribed
organization, the Communist Party of the United States, which is a
condition precedent to the finding that he is a member of the deportable
class of aliens enumerated in section 1(2)(C)(i), as amended. His
present status as an alien is a necessary further condition of his
deportability. Since both conditions have been met, the requirements of
the act are satisfied. It may be noted in passing that counsel's
reference to the case of Kessler v. Strecker, 307 U.S. 22 (1939), is
not pertinent inasmuch as the amendatory act of June 28, 1940, to the
act of October 16, 1918, was for the very purpose of overcoming the
deficiency in the previous act pointed out in Kessler v. Strecker. (H.
Rept. 994, 76th Cong., 1st sess., p. 6; S. Rept. 1154, 76th Cong, 1st
sess., p. 5). The amendments contained in the Internal Security Act of
1950 made no change in this portion of the language of the amendatory
act of June 28, 1940.
Under the second point in his brief counsel included the argument
that even if the respondent were to be regarded as if he were an alien
under the Philippine Independence Act of 1934, he is subject to the
immigration laws specifically in force and effect at that time, and is
not subject to any amendatory or additional immigration laws. We
believe this argument does violence to the plain meaning of the wording
of section 8(a) of the Philippine Independence Act which provides "For
the purposes of the Immigration Act of 1917, the Immigration Act of 1924
(except sec. 13(c)), this section, and all other laws of the United
States relating to immigration, exclusion, and expulsion of aliens,
citizens of the Philippine Islands who are not citizens of the United
States shall be considered as if they were aliens.' The italic has been
supplied in order to emphasize the obvious and potent purpose of making
citizens of the Philippine Islands subject to all immigration,
exclusion, and expulsion laws, just as any other alien. We find no room
in the construction of this sentence for any doubt as to the meaning of
these words, and we conclude that the plain intendment is that all
immigration, exclusion, and expulsion laws, then in effect or thereafter
promulgated, should apply to citizens of the Philippine Islands. We
have examined the case of Varletta v. Barber, 98 F.Supp. 177 (N.D.
Calif. 1951), and find it does not stand for the proposition advanced by
counsel.
Counsel's third point is that the respondent has never entered the
United States within the meaning of the immigration laws and therefore
"at the time of entering or at any time thereafter' has never been a
member of any deportable class. Cases cited by counsel do not support
this contention, but the argument advanced is either a misunderstanding
or a distortion of the principles laid down in the cited cases. These
cases involve aliens who were regarded as never having made an "entry'
because they had been stopped at the border and excluded (although later
they may have been paroled into the United States), or whose departure
from the United States was unintentional and involuntary, or was caused
by fortuitous circumstances beyond the control of the alien and
therefore no "entry' resulted. In the instant case it is manifest that
the respondent entered voluntarily with the intention of remaining here
for permanent residence on April 29, 1926, when he arrived in the United
States from the Philippine Islands. It is clear that this voluntary
entry into the United States from a foreign place constituted an "entry'
as the term is used in the immigration laws, (U.S. ex rel. Volpe v.
Smith, 289, U.S. 422, 77 L.Ed. 1298.)
Counsel also seeks to sustain this argument by reference to the case
of Del Guercio v. Gabot, 161 F.(2d) 559 (C.C.A. 9, 1947). We considered
the effect of the Gabot case in three decisions, (Matter of O , 3, I. &
N. Dec. 155, A-5553948 (1948); Matter of C , 3 I. & N. Dec. 184,
A-5885722 (1948); Motter of S L ; 3, I. & N. Dec. 396, A-5438638
(1949)). Illustrative of the reasoning in those cases is the following
language which we used in Matter of O , (supra).
The Gabot case involved a charge of "sentenced to a year or
more for a crime committed within 5 years after entry.' The facts
were that Gabot, a Filipino, crossed the border from Mexico to the
United States on March 20, 1934, and was convicted on January 28,
1935, of murder committed on October 11, 1934. The court, in
reviewing the deportation proceedings, found that he was not an
alien when he crossed the border and, therefore, there was not an
"entry' within the contemplation of the immigration laws. The
charge there under consideration made the entry an integral factor
in that the entry must have occurred within 5 years of the
commission of the offense.
Such is not the case in respect to the charges placed against
the present respondent. It is true that the language of the
statute respecting the first charge, viz, inmate, contains the
words "after such alien shall have entered the United States,' but
the time of entry is immaterial, hence use of the words last
quoted is of no importance; and to hold that because he crossed
into the United States at a time when he was not an alien (Toyota
v. U.S., 268 U.S. 401, 1934) forever relieves him from liability
for deportation notwithstanding his commission of proscribed acts
does violence to the plain language of the Philippine Independence
Act. * * *
We find that the act of October 16, 1918, as amended, under which
deportation of the respondent is sought, presents the same factors which
resulted in the above distinction and differentiation of the holding in
the Gabot case, inasmuch as in this statute the time of entry is
likewise immaterial and is not an integral factor of the deportability
charge, since the statute is equally applicable to any alien who at any
time shall be or shall have been a member of the proscribed classes
enumerated in section 1(2) of the act of October 16, 1918, as amended.
The contentions urged by counsel in the fourth point of his brief we
believe are substantially the same as those previously raised by counsel
under his second point in which he urged the applicability of the case
of Kessler v. Strecker, 307 U.S. 22 (1939). We shall not restate the
views we have already expressed, but shall merely point out that the
requirement of present membership in the prior Act of October 16, 1918,
which was laid down in Kessler v. Strecker was removed by the subsequent
amendatory enactment of June 28, 1940 (54 Stat. 673), and was continued
in the act of September 23, 1950, the Internal Security Act (8 U.S.C.
137).
After a full and careful consideration of all the evidence of the
case, including the arguments and exceptions raised by counsel, we
conclude that the alien is subject to deportation as found by the
Assistant Commissioner. We shall accordingly dismiss the appeal.
Order: It is ordered that the appeal be and the same is hereby
dismissed.
(Editor's note) -- On May 21, 1952, United States District at
Seattle, Wash., Civil Act 2954, denied an application for a writ of
habeas corpus, filing a written opinion which followed conclusions
set forth in interim decision.
Public charge -- Within 5 years after entry -- Section 19, act of February 5, 1917 -- Confinement in State hospital for criminally insane -- Sustainability of such deportation charge.
An alien, here since 1909, who last entered the United States in September 1926, was arrested for murder in February 1927 and was committed by a judge's order to Ionia State Hospital, Ionia, Mich., a hospital designated for the criminally insane. He remained an inmate of such institution until November 1944, and on December 5, 1944, the murder charge was nolle prossed at Detroit, Mich. Though he owned a house, no demand was made upon him or his relatives for payment for charges incurred while he was a public patient at the above institution. The tests as to whether under section 19 of the act of February 5, 1917, he is deportable on the charge he became a public charge within 5 years after entry have not been met (3, I. & N. Dec. 323), and his confinement in the Ionia State Hospital cannot be used to sustain this charge, just as a person confined to a penal institution is not thereby regarded as within the purview of such a charge.
CHARGES:
Warrant: Act of 1924 -- No immigration visa.
Act of 1917 -- Illiterate.
Act of 1917 -- Became a public charge within 5 years.
Discussion: This record relates to a 63-year-old married male,
native and last a citizen of Poland, who last entered the United States
at Detroit, Mich., on or about September 15, 1926.
The record discloses that the respondent first entered the United
States at New York, N.Y., on June 8, 1909, and that he was lawfully
admitted to the United States for permanent residence. Such entry has
been verified. Subsequent to that date, he made a visit to Canada for
about 24 hours and returned to this country at Detroit, Mich., on
September 15, 1926. His reentry has not been verified. He claims that
he has resided continuously in the United States since his lawful
admission for permanent residence, that upon his reentry he was
inspected and admitted to the United States by an immigrant inspector.
The record establishes the respondent's lawful residence in the United
States since 1909 and consequently his reentry into the United States on
September 15, 1926, was lawful, under outstanding orders in effect at
the time of his reentry. Thus, he is not subject to deportation under
the Immigration Act of 1924 as an immigrant not in possession of a valid
immigration visa.
Since, in connection with his reentry, he was returning to an
unrelinquished lawful domicile of more than 5 years, he was exempt from
the illiteracy provisions of section 3 of the Immigration Act of 1917 as
an illiterate.
The sole remaining issue is whether he is deportable on the ground
that he became a public charge within 5 years after entry. The record
discloses that on February 24, 1927, respondent was arrested for murder;
on March 17, 1927, he was committed to Ionia Hospital for the Insane,
Ionia, Mich., by Judge Murphy, and that he remained an inmate of the
State hospital from March 21, 1927, until November 17, 1944. On
december 5, 1944, at Detroit, Mich., the murder charge was nolle
prossed. An examination conducted by competent medical authorities at
the Ionia State Hospital diagnosed the alien's condition as psychogenic
anxiety state. The alien has testified that no demand was ever made on
him for payment for the hospitalization and that none of his relatives
ever paid for it. It furthermore appears that in a statement given by
respondent on January 30, 1931, at which time he was confined to the
State hospital, he alleged that he did own a house in Detroit, Mich., of
which the American Trust Co. was the guardian. Furthermore, it appears
in a certification by the medical superintendent of the hospital, (Form
534, proof that alien had become a public charge), dated February 14,
1931, that no demand was made on respondent or his relatives for payment
of the hospital expenses.
The Ionia State Hospital has been designated as the hospital for the
criminally insane. Michigan Public Laws 195, 1923, now section 14.801,
volume 10, Mich., Stat., Anno. At the time of respondent's confinement,
this was the only institution designated for such persons. Under the
provisions of law in effect at that time, if an accused person appeared
to be insane, the court did, after certain procedures were taken, commit
an accused to such hospital, (Section 28.967, volume 25, Mich., Stat.,
Anno.). Respondent was sent to that institution in accordance with the
order of the court and under the procedures designated by the provision
mentioned. Such person is deemed to be a public patient (sec. 14.807,
vol. 10, Mich., Stat., Anno.), chargeable to the expense of the county
for the first 2 years and thereafter to the state. Under the provisions
of law the county or state authorities might "recover the amount so paid
from the person's own estate, if he have any, or from a relative, town,
city, or county that would have been bound under existing laws to
provide and maintain him elsewhere' (sec. 28.967, vol. 25, Mich., Stat.,
Anno). No demand for payment was made of respondent or his relatives.
Section 28.967, Volume 25, Mich., Stat., Anno, under which provision
respondent was presumably committed to Ionia Hospital provides in part
as follows:
When any person accused of any felony shall appear to be insane
* * * the court, being certified by the jury or otherwise of the
fact, shall carefully inquire and ascertain the issue of insanity.
* * * If such person is found insane, the judge of said court
shall order that he be discharged from imprisonment and that he be
turned over to the sheriff for safe custody and removal to the
Ionia State Hospital, to which hospital such person shall be
committed to remain until restored to sanity. When such person
shall be resored to sanity, and that fact has been determined by
the superintendent of such hospital or by any other proceeding
authorized by this section, the said superintendent of said
hospital shall forthwith certify that fact in writing to said
judge and presenting attorney. The judge shall thereupon
immediately require the sheriff without delay to bring such person
from the said hospital and place him in proper custody until he is
remanded to prison, brought to trial or judgment as the case may
be, or is legally discharged.
From the foregoing, it is evident that when an accused person is sent
to Ionia State Hospital under the provisions of the cited section, the
detention therein is part of the criminal proceedings. In view of the
insanity, the accused is taken from the prison wherein he might be
confined and detained in a hospital for the insane where he is given
special hospitalization and care until he is restored to sanity
whereupon the criminal proceedings are again renewed. Consequently the
detention in the Ionia State hospital is part of the same process used
in confining criminals until such time as the criminal proceedings are
disposed of. It is nothing more than the equivalent to confinement in a
penal institution except that the insane person is detained in a
hospital for the insane, wherein 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 section 19 of
the Immigration Act of 1917. Similarly it must be concluded that the
confinement of respondent in the Ionia State Hospital cannot be used to
sustain the immigration charge, "became a public charge within 5 years
after entry.'
It has been furthermore 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, A.
G. 1948, (3, I. & N. Dec. 323)). An exception is made with regard to
requirement for demand for payment in the case where the patient and
persons legally responsible for care and maintenance are known to be
destitute, (Matter of M (B.I.A., 1946) 2, I. & N. Dec. 694). In the
instant case, it appears that no demand for payment was made either upon
alien or upon his relatives and furthermore, it appears that respondent
had property for which a guardian was appointed. Consequently, even if
it is concluded that respondent was not confined to a penal institution,
the requirements for establishing that he became a public charge within
5 years after entry have not been met. In view of the foregoing, it is
concluded that respondent is not deportable under the act of 1917 as a
person who became a public charge within 5 years after entry.
Therefore, respondent is not deportable under any of the charges shown
in the warrant of arrest and the proceedings will be terminated.
Order: It is ordered that the proceedings be terminated.
"Subversive' -- Member of Communist Party of the United States after entry -- Act of October 16, 1918, as amended by the Internal Security Act of 1950 -- Fact of such membership, stipulated before Internal Security Act of 1950 came into effect -- Evidence -- Fair hearing -- Lodging of additional charge. (See 4, I. & N. Dec. 556.)
When fact of membership in the Communist Party of the United States was stipulated by the respondent, the Internal Security Act of 1950 had not come into effect, and counsel now asserts this stipulation would not have been entered into had such act then been in effect; but such stipulation was not entered into under a mistake of law or of fact and could not be claimed to have been inadvertently signed, wherefore he cannot be relieved from it, under the circumstances in this case.
CHARGES:
Warrant: Act of October 16, 1918, as amended -- Member of an organization, association, society, or group that advises, advocates, or teaches the overthrow, by force or violence, of the Government of the United States.
Act of October 16, 1918, as amended -- Member of an organization, association, society, or group that writes, circulates, distributes, prints, publishes, or displays any written or printed matter, advising, advocating, or teaching the overthrow, by force or violence, of the Government of the United States.
Lodged: Act of October 16, 1918, as amended -- Member of the
Communist Party of the United States.
Discussion: Counsel and his associates argued this case with
another, the Matter of R L , A-4942707. The cases present some similar
legal questions but different facts.
Respondent is a native and formerly a citizen of Russia. He last
entered the United States at New York on June 23, 1913. He was admitted
for permanent residence, and has been at all times since a resident of
the United States. The hearing officer recommended that respondent be
deported from the United States pursuant to law on the lodged charge,
and the Assistant Commissioner affirmed that order. In the Matter of R
L , A-4942707, 4, I. & N. Dec. 556, we have already discussed our views
and findings as to counsel's arguments on the constitutionality of the
Internal Security Act of 1950 and the Administrative Procedure Act, the
rules and regulations under which the hearings were held, particularly
relating to the regulations with regard to the lodging of the new
charges during the course of the hearing. It is not necessary for us to
repeat our conclusions here.
The principal difference between this and the L case is that in this
case counsel and the alien stipulated that he was a member of the
Communist Party of the United States from about 1919 to about 1938, at
which time he disaffiliated and rejoined sometime in 1947. They
stipulated that he was a member during the entire year of 1948 and down
to the present time, that when he rejoined the Communist Party of the
United States in 1947 he became the financial secretary of the
Hamtramck, Michigan section of the Communist Party of the United States,
that he was financial secretary of that section of the Communist Party
from shortly after his rejoining in 1947 up to the time of the September
19, 1950, hearing, and at the time of the hearing was still financial
secretary of his section of the party. Before entering into this
stipulation, counsel made the following statement to the hearing
examiner:
Mr. BROWN. It is our contention that membership alone in the
Communist Party would not constitutionally warrant deportation
proceedings against this respondent. That question has -- the
constitutionality of that question has never heretofore been
decided on, solely on that point. There is now pending appeal to
the United States Supreme Court in re Peter Harisiades, in which
that question is raised and will ultimately be resolved. In the
interests of time-saving and energy-saving, I respectfully submit
-- request an adjournment until the determination of that case.
Hearing Examiner LOMBARDINI. Your request --
Mr. BROWN. Because, if that case -- if the Supreme Court
should state that -- that membership alone without overt acts, or
without advocating overt acts, is still deportable, then there is
no defense that this agent has.
In oral argument before this Board, counsel stated that it was in
order to prevent the introduction of the transcript of an earlier
statement by the alien to an immigrant inspector as an exhibit in the
case that counsel had entered into this stipulation. There is no such
statement in the record of the hearing. Counsel requests that they be
relieved from the effect of this stipulation, because of the passage of
the Internal Security Act of 1950. They now claim that they would not
have entered into such a stipulation had that act been in effect. We do
not believe that it can be said that this was a stipulation which was
entered into under a mistake of law or fact, because all three counsel
involved in this case were aware that this Board and the courts have
held in many cases that the Communist Party is an organization,
association, society, or group that believes in, advises, advocates, and
teaches the overthrow by force and violence of the Government of the
United States, and that any alien who has been a member of that
organization subsequent to entry is deportable from the United States.
Counsel was aware when he agreed to stipulation that it was within the
power of the Immigration and Naturalization Service to prove the alien's
membership in the Communist Party. The passage of the section of the
Internal Security Act of 1950 applicable here merely relieved the
Government of the necessity of proving the nature of the Communist Party
in each proceeding. Counsel cannot now claim that the stipulation was
inadvertently signed and that on that ground he is entitled to relief
from it.
Counsel protests the questioning of respondent on May 25, 1947. The
statement respondent made at that time does not appear as an exhibit in
the record, and none of the admissions of respondent during that
investigation were made the basis of the order of deportation. At the
time that statement was taken, the inspector made the following
preliminary statement to respondent:
I want to tell you that I am an inspector in the employ of the
United States Immigration and Naturalization Service, and so
being, I am empowered by law to administer oaths and accept
testimony relative to your status under the Immigration,
Nationality, and Alien Registration laws. I want you to
understand that any statement you make at this time may be used
against you or any other persons in any proceedings the Government
of the United States may decide to institute and that anything you
may say must be true and correct especially for that reason and
also must be voluntary.
The alien was then asked if he had any objection to making a
statement under oath, and he replied that he did not. The regulations
do not provide that it is necessary to inform an alien that he is
entitled to counsel during a preliminary investigation. The purpose of
this investigation is to discover whether or not a warrant should be
issued. Counsel's brief devotes a great deal of attention to this
preliminary statement of respondent's. The order of deportation is not
based on that statement, but on the stipulation, which was entered into
by counsel, as we have already pointed out, as a time-saving device.
Counsel quotes from the opinion of the circuit court of appeals in
Zydok v. Butterfield, 187 F.(2d) 802 C.A. 6, March 1951) litigation
involving respondent. Following passage of the Internal Security Act,
alien was taken into custody by the Immigration and Naturalization
Service. Only the bail issue was involved in that proceeding -- whether
or not the Attorney General had abused his discretion under section 23
of the Internal Security Act of 1950 in causing appellant to be held
without bail. The court found that there was no reasonable ground to
indicate that if this alien were admitted to bail that he would forfeit
it. The circuit court reversed the order of the district court
dismissing the writ of habeas corpus. So far as we can discover from
the opinion of the court, the record of respondent's hearings in the
deportation proceeding was not before the court. The court merely
stated that a deportation proceeding against the alien had begun in 1949
and that there was no indication of an early termination thereof. The
finding of the court was not determinative of the issues here involved.
Counsel indicated in argument before us that following the circuit
court's opinion the alien was released from detention.
It is our opinion that the alien was given a fair hearing in
accordance with the regulations. He is admittedly a former member of
the Communist Party and is mandatorily deportable under the Internal
Security Act of 1950.
Order: It is ordered that the appeal be and the same is hereby
dismissed.
"Subversive' -- Member of Communist Party of the United States after entry -- Act of October 16, 1918, as amended by the Internal Security Act of 1950 -- Evidence -- Fair hearing -- Lodging of additional charge.
(1) It is not within the province of the Board of Immigration Appeals to pass on the constitutionality of the statutes it administers.
(2) Having refused to permit his client testify or participate in the hearing in any way because the procedure followed by the hearing officer was not satisfactory to counsel, he should not now complain the respondent-client was deprived of a fair hearing.
(3) A new charge may be lodged during the hearing, if it develops there exists grounds therefor (8 C.F.R. 151.2(d)), which includes an appropriate charge on a ground brought about by the passage of a new law (as well as by the introduction of evidence).
(4) Having had an opportunity to proceed with the hearing under the regulations which were in accord with the Administrative Procedure Act of 1946, but choosing to adjourn for two weeks, on the eve of new regulations to be issued under the act of September 27, 1950, of which he was advised, counsel had no cause for complaint that the hearing was conducted under the new rules thereafter.
CHARGES:
Warrant: Act of October 16, 1918, as amended -- Member of an organization which writes, circulates, distributes, etc., written and printed matter advising, advocating, teaching the overthrow by force and violence of the Government of the United States, to wit: International Workers Order.
Act of October 16, 1918, as amended -- Affiliated with an organization, association, etc., that believes in, advises, etc., the overthrow by force and violence of the Government of the United States, to wit: Communist Party of the United States.
Lodged: Act of October 16, 1918, as amended -- Member after entry of
the Communist Party of the United States.
Discussion: Counsel and his associate argued this case with another,
the case of I or J Z , A-5098547. The cases present similar legal
questions but different facts. We prefer to consider them separately.
Respondent is a native and citizen of Russia. She last entered the
United States at New York on May 26, 1913. She was admitted for
permanent residence, and has been at all times since a resident of the
United States. The hearing officer recommended that respondent be
deported from the United States pursuant to law on the lodged charge,
and the Assistant Commissioner affirmed that order.
On oral argument before this Board the alien's attorneys attacked the
constitutionality of the Internal Security Act of 1950. They recognized
that it is the position of this Board that we do not pass on
constitutional questions, but stated that they want the record to be
clear that they are raising constitutional issues now, so that in the
future no court can conclude that the constitutional questions are not
before it, on the ground that they were not raised before the
administrative agency. Counsel urges that the Internal Security Act of
1950 constitutes a bill of attainder, that it is an ex post facto law as
it applies to respondent, and that it results in denial of due process
under the first and fifth amendments. Our own interpretation is that it
is not within the province of this Board to pass on the
constitutionality of the statutes which we administer. We accept the
legislative mandates given us, and we believe that it is within the
power and capacity only of the United States courts to declare them
unconstitutional.
In this case counsel employed the technique of refusing to
participate in the hearing on the ground that the procedure being
followed by the hearing officer was not satisfactory or pleasing to him.
This technique consists of seeking what seems to counsel to be a flaw
or fault in some procedural aspect of the hearing -- charges, warrant,
or notice -- and then informing the hearing officer that it is his
intention to, as he puts it, "stand mute.' Having refused to permit his
client to testify, or to take part in the hearings in any way, he should
not now complain that they have been deprived of a fair hearing.
The Immigration and Naturalization Service abandoned the warrant
charges, which were (1) membership in the International Workers Order
and (2) affiliation with the Communist Party of the United States. No
evidence was introduced by the Government to show that these
organizations fall within the class of groups which circulate,
distribute, advise, advocate, and teach the overthrow by force and
violence of the Government of the United States. Instead the Government
lodged a new charge under the Internal Security Act of 1950. Under that
act it is no longer necessary for the Government to establish that the
Communist Party is one advocating the overthrow of the Government by
force and violence. Under section 22 of that act membership in, or
affiliation with the Communist Party, specifically and by name, is made
grounds for exclusion or deportation. The Immigration and
Naturalization Service relied upon this ground only, and the order of
deportation is based only on that charge.
Counsel complains that the hearings were not conducted in accordance
with all the provisions of the Administrative Procedure Act, and that
the manner in which the proceedings were conducted, constitutes a denial
of due process. This is an untenable position for him to take in this
particular hearing, because he had the opportunity to proceed under the
rules and regulations promulgated by the Immigration and Naturalization
Service in accordance with the Administrative Procedure Act, but he
demanded an adjournment until new rules and regulations under Public Law
843, enacted on September 27, 1950, were promulgated and published.
That is, the hearing in this case was originally scheduled to commence
on November 9, 1950. Counsel inquired of the hearing officer as to
whether she was proceeding under the old regulations, or under new
regulations to be published in accordance with Public Law 843, which
provides that "proceedings under alw relating to the exclusion or
expulsion of aliens shall hereafter be without regard to the provisions
of sections 6, 7, and 8 of the Administrative Procedure Act.' The
examining officer informed the hearing officer that the new regulations
were to be published the following day, November 10, and that the
Immigration Service would not be opposed to a reasonable adjournment in
order to give counsel an opportunity to familiarize himself with the new
regulations. An adjournment of 2 weeks for this purpose was granted.
Therefore, it appears that counsel, in this case particularly, has no
legitimate complaint that the proceedings were conducted in accordance
with the new rules, rather than under the regulations which were
promulgated for procedure in immigration cases under the Administrative
Procedure Act.
Counsel declined to permit respondent to be a witness in the
proceedings. He then conceded that the R L and R N described in the
Government's admission records and alien registration form relate to the
respondent in this case.
The next witness was M M , presently an employee of the Immigration
and Naturalization Service, who has testified in many of these cases.
He was qualified as an expert witness in matters of Communist Party
membership during the time that respondent is alleged to have been a
member. He identified respondent as a person whom he had known as a
member of the Communist Party from approximately 1925 until about 1936.
He testified that she was active in many branches and levels of
Communist Party activity, that she worked with children's and women's
groups and was a member of the national committee. He stated that the
meetings which he described and which were also attended by her were
open to members of the party only and that nonmembers could not enter.
At this point the Government lodged the additional charge that the
respondent is deportable under the act of October 16, 1918, as amended
by the Internal Security Act of 1950, in that, she is a person who,
after entry, became a member of the Communist Party of the United
States. The alien's counsel pleaded complete surprise, stating that he
had come to the hearing prepared to defend respondent on the charge of
"affiliation' with the Communist Party, and that the charge of
"membership' in the party was a totally different and complete thing,
requiring entirely new and different preparation and defense. The
hearing officer informed counsel that she would grant him an adjournment
in order to give him an opportunity to meet the new charge. Counsel
declared that he would accept the adjournment only on the condition that
all the Government's evidence be completely re-presented by the
Government following the adjournment.
The hearing officer then accepted testimony from M J , also employed
by the Immigration and Naturalization Service, whose testimony is much
the same in content as that of the previous witness. Respondent's
counsel declined to cross-examine either witness. Counsel refused to
state unqualifiedly whether or not he desired an adjournment. The
hearing officer granted a 3-week postponement, in order to give
respondent's counsel an opportunity to meet the new charge, if he chose
to do so.
At the reopened hearing the Government again offered for
cross-examination its two principal witnesses, but respondent's attorney
declined to cross-examine them. He insisted that all of the testimony
offered at the previous hearings should be stricken from the record, and
the entire case heard de novo. This request was denied and properly so.
Such a procedure would be dilatory and unnecessary, and it was an
unreasonable request.
Regulations of the Immigration and Naturalization Service have always
provided for the lodging of additional charges where it develops during
a hearing that there exist grounds for lodging of such additional
charges. Counsel protested in oral argument before this Board that it
is improper to lodge a new charge under the Internal Security Act in the
course of a hearing which was commenced before that act was passed. He
contends that the regulation /1/ permitting the lodging of a new charge
applies only to additional grounds developed by the introduction of
evidence, rather than by the passage of a new law. He states that when
there is a change in the statute the whole hearing should be abandoned
and retried from the beginning. We do not construe the regulation so
narrowly. The regulation does not state that a new charge may be lodged
if evidence develops at the hearing. It states, "If, during the
hearing, it develops that there exist grounds * * *.' The hearing
officer was proceeding in accordance with the regulations, and the
evidence adduced at the hearing clearly supports the lodged charge.
We find no merit in counsel's claim that the lodged charge is a
completely different kind of charge from those contained in the warrant.
A charge of affiliation is a lesser charge than a charge of membership.
It seems to us that if counsel was prepared to defend respondent on a
charge of affiliation, by so much more it is possible for him to have
defended her from a charge of membership with the same evidence. For
example, if a defendant is charged with petty larceny, an accusation
which he can adequately refute, it seems clear that a charge of grand
larceny on the same state of facts could be even more easily refuted by
the same evidence. In oral argument before this Board, counsel said,
"What is meeting a charge? Is meeting a charge making a defense, or is
meeting a charge making objections? -- Making motions?' He declares
that he should have had adequate opportunity to make his objections.
However, the record shows that following the 2 weeks' adjournment (the
second adjournment) counsel still declared, "I am not prepared to put in
any defense.' It is our conclusion that counsel was given more than
adequate opportunity to represent his client, had he chosen to do so.
He was granted two adjournments and still he declined to present any
evidence or to take any part in the hearing. We find no grounds for
complaint on the manner in which the hearing was conducted.
It is our conclusion that the evidence developed in the hearing
adequately support the lodged charge, that respondent is deportable as
an alien who was a member of the Communist Party of the United States
following her entry.
The Internal Security Act of 1950 eliminates the authority of the
Attorney General to grant discretionary relief in this type of case, so
it is not necessary or desirable for us to consider the matter of
hardship and the meritorious character of respondent urged by her
husband in oral argument before us.
Order: It is ordered that the appeal be dismissed.
(1) 8 C.F.R. 151.2(d) Hearing officer; additional charges. -- If,
during the hearing, it develops that there exist grounds in addition to
those stated in the warrant of arrest why the alien is subject to
deportation, the hearing officer may lodge additional charges against
the alien and shall develop evidence upon such charges in like manner as
on the charges contained in the warrant of arrest. When additional
charges are lodged against the alien, the hearing officer shall explain
these charges to the alien in simple, understandable language and shall
advise him, if he is not represented by counsel or other qualified
representative, that he may be so represented if he desires, and require
the alien to state then and there for the record whether he desires such
representation. The hearing officer shall also inform the alien that he
may have a reasonable period of time within which to meet the additional
charges if the alien so desires and require the alien to state then and
there whether he desires such additional time.
Visa petition proceedings -- Preference quota status -- Chinese person as beneficiary petitioner -- Children under the age of 21 -- Denial of petition.
(1) The act of December 17, 1943, which repeals the Chinese exclusion laws and establishes a quota for Chinese does not authorize the grant of preference quota status, as allotted under section 6(a)( 1)(A) of the Immigration Act of 1924, to Chinese persons. (For definition of "Chinese person,' see section 5(b) of the act of July 2, 1946.) Hence, a petition for preference quota status in the issuance of an immigration visa filed by citizen children on behalf of their Chinese father beneficiary cannot be approved.
(2) A further ground for denial of such petition lies in the fact that the petitioners are under 21 years of age. Citizen children seeking a preference for their parents under section 6(a)(1)(A) of the Immigration Act of 1924 must be 21 years of age or over.
(3) The Chinese husband of a United States citizen is not entitled to
nonquota status under section 4(a) of the Immigration Act of 1924.
Although the act of December 17, 1943, allows nonquota status in the
issuance of an immigration visa to be conferred upon the Chinese wife of
a United States citizen (and certain other classes of immigrants), that
act otherwise requires that all Chinese persons entering the United
States as immigrants shall be charged to the quota for Chinese.
Discussion: The visa petition was executed on June 19, 1951,
pursuant to section 9 of the Immigration Act of 1924, for the purpose of
establishing that the beneficiary R S H M , is entitled to a nonquota
status in the issuance of an immigration visa as the husband of a United
States citizen as provided by section 4(a) of the Immigration Act of
1924. The attorney for the petitioner requests that the petition as
filed with his accompanying letter be considered as an application by
the minor citizen children of the beneficiary for the issuance of a
quota immigration visa within the 50 percent of the quota as allotted
under section 6(a)(1)(A) of the Immigration Act of 1924, to quota
immigrants who are the fathers or the mothers of citizens of the United
States who are 21 years of age or over, or who are the husbands of
citizens of the United States by marriage occurring on or after January
1, 1948. The attorney contends that the statement "who are 21 years of
age or over' as it appears in section 6(a)(1)(A) of the Immigration Act
of 1924 relates to the fathers or the mothers who are over 21 years of
age and that it is not a requirement that the citizen children be over
21 years of age.
The district director of this Service at Kansas City, Mo., denied the
petition on July 12, 1951, and from this decision the attorney for the
petitioner has appealed.
The questions presented are (1) is the beneficiary entitled to a
nonquota immigration visa under section 4(a) of the Immigration Act of
1924 as the husband of a United States citizen, or (2) is the
beneficiary entitled to a preference within the quota under section 6(
a)(1)(A) of the Immigration Act of 1924 as the father of a United States
citizen.
Petitioner has submitted birth certificates of her two children,
Stephen, born in China, July 10, 1948, and Phyllis, born in St. Louis,
Mo., November 25, 1949.
As section 2 of the act of December 17, 1943, as amended, provides
that -- "With the exception of Chinese alien wives of American citizens
and those Chinese aliens coming under subsections (b), (d), (e), and (f)
of section 4, Immigration Act of 1924 (43 Stat. 155; 44 Stat. 812; 45
Stat. 1009; 46 Stat. 854; 47 Stat. 656; 8 U.S.C. 204), all Chinese
persons entering the United States annually as immigrants shall be
allocated to the quota for the Chinese computed under the provisions of
section 11 of the said act,' the attorney for the petitioner concedes
that te beneficiary is not entitled to a nonquota immigration visa as
the husband of a United States citizen.
Petitioner's attorney does contend that the beneficiary is entitled
to the issuance of a quota visa within the 50 percent allocated under
section 6(a)(1) of the Immigration Act of 1924 and consideration must
therefore be given this point.
While the attorney contends that an immigration visa within the 50
percent allocated under section 6(a)(1) is not a preference quota visa,
Congress does refer to the issuance of such visas as preference quota in
section 9 of the Immigration Act of 1924 which requires that an
application for the approval of the issuance of such a visa be filed
with the Commissioner of Immigration and Naturalization in such form as
may be by regulations prescribed.
8 C.F.R. 165 provides for the filing of a petition for the approval
of the issuance of an immigration visa where a citizen of the United
States claims that an immigrant is his relative and properly admissible
to the United States as a nonquota immigrant, or that such immigrant is
entitled to preference in the issuance of an immigration visa. 8 C.F.
R. 165.1(b) provides:
No Chinese person as defined in section 5(b) of the act of July
2, 1946 (60 Stat. 417; 8 U.S.C. 212c), is entitled to a nonquota
or preference quota status solely because of his relationship to a
citizen of the United States. A preference up to 75 per centum of
the quota for the Chinese prescribed by section 2 of the act of
December 17, 1943 (57 Stat. 601, 60 Stat. 975; 8 U.S.C. 212a),
shall be given to Chinese persons born and resident in China.
There are no other preferences in the issuance of immigration
visas under the quota for the Chinese prescribed by section 2 of
that act. An alien who is a Chinese person as defined in section
5(b) of the act of July 2, 1946 (60 Stat. 417; 8 U.S.C. 212c),
and who is seeking a preference in the issuance of an immigration
visa under the said quota for the Chinese because of alleged birth
and residence in China shall not be required to file an
application for such preference with the Commissioner of
Immigration and Naturalization but shall submit required proofs to
the appropriate American consular officer. The quota for the
Chinese authorized by section 2 of the act of December 17, 1943,
does not affect the quota of 100 prescribed for China by the
President's Proclamation No. 2283, of April 28, 1938. Any citizen
of the United States may proceed as described in paragraph (a) of
this section in behalf of any relative, other than one who is a
Chinese person as defined in section 5(b) of the act of July 2,
1946 (60 Stat. 417; 8 U.S.C. 212c), who was born in China and is
not ineligible to citizenship: Provided, That nothing in this
section shall be construed to deprive a Chinese alien wife of a
United States citizen of nonquota status which she may derive
because of marriage to a United States citizen nor to prevent any
citizen of the United States from proceeding in accordance with
paragraph (a) of this section in behalf of a Chinese alien wife
(sec. 9, 43 Stat. 157, 53 Stat. 164 sec. 2, 57 Stat. 601; 8
U.S.C. 209).
From the foregoing regulation and the statement in the act of
December 17, 1943, that "a preference up to 75 per centum of the quota
shall be given to Chinese born and resident in China' it is clear that
Chinese persons do not come within the preference allocation of section
6(a)(1) of the Immigration Act of 1924.
Even though Chinese persons were included in section 6(a)(1) of the
Immigration Act of 1924 the portion of that statute under which
petitioner's attorney seeks benefit relates to "quota immigrants who are
the fathers or the mothers of citizens of the United States who are
twenty-one years of age of over.' The legislative history of the
Immigration Act of 1924 clearly shows that the statement in question
requires that the citizen children be 21 years of age or over. As
originally enacted section 6(a)(1) of the Immigration Act of 1924
provided tht a preference be given to "a quota immigrant who is the
unmarried child under 21 years of age, the father, the mother, the
husband, or the wife, of a citizen of the United States who is 21 years
of age or over.' The act of July 11, 1932, provided that a husband of a
citizen of the United States by marriage occurring on or after July 1,
1932, would be eligible for a preference under section 6(a)(1). It
removed the requirement that the citizen wife be over twenty-one years
of age. However, the requirement that citizen children seeking a
preference for their parents be 21 years of age or over was retained.
From the foregoing it is evident that the children of the beneficiary
being under 21 years of age, are not eligible to petition for the
issuance of an immigration visa under section 6(a)(1) of the Immigration
Act of 1924.
Section (a) of the Immigration Act of 1924 provides for the approval
of the issuance of immigration visas by the Immigration and
Naturalization Service only in those cases where the beneficiary seeks
to obtain a nonquota visa under section 4(a) of the Immigration Act of
1924, or a preference quota visa under section 6 of the Immigration Act
of 1924. As the beneficiary in this case is not eligible for a nonquota
immigration visa under section 4(a) or a preference quota visa under
section 6, this Service has no authority to approve the visa petition.
Order: It is ordered that the action of the district director in
denying the petition for issuance of immigration visa filed by M F M in
behalf of R S H M be approved, and that the appeal be dismissed.
Crime involving moral turpitude -- Larceny (1948), New South Wales, Australia -- Whether juvenile offender.
(1) The offense of larceny of which convicted in Sydney, New South Wales, Australia (sec. 116 of the Crimes Act of 1900 for New South Wales, Australia; the Larceny Act of 1916 (6 and 7 Geo. V., c. 50) in effect in all Australia) involves moral turpitude.
(2) Having passed her 18th birthday when she committed the larceny in question, according to terms of pertinent statutes she was not a juvenile at that time and from the evidence was not treated as one by the court.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917 -- Convicted of crime, to wit: Larceny.
Discussion: This case is before us on appeal from a decision of the
Acting Assistant Commissioner dated February 20, 1951, directing that
the excluding decision of the board of special inquiry be affirmed.
Appellant, a 22-year-old native and citizen of Australia, applied for
temporary admission to visit her United States citizen husband in
Seattle, Wash. Appellant stated that her husband is in the United
States Merchant Marine and she wishes permission to visit at her
mother-in-law's house in that city, when her husband's ship is in port.
She said that she had previously visited in Seattle on two occasions for
a period of about 4 or 5 days.
Appellant's first marriage was to a United States citizen, a merchant
seaman, in Australia on December 5, 1947. She received an Australian
divorce on May 14, 1950, on the grounds of cruelty, because she had
allegedly seen her husband only 2 or 3 months during their marriage.
Appellant stated that she went to Canada to marry her recent husband,
whom she had known for about a year's time. She said that she lives
alone in an apartment in Vancouver, British Columbia, Canada, and is
entirely supported by her husband, whom she sees only when he comes to
Vancouver as a seaman. Appellant also stated that she intends to live
only temporarily in Canada, for she and her husband plan to return to
Australia when they have saved a substantial sum of money and he then
quits working as a seaman.
On May 3, 1948, appellant was convicted in the central police court
at Sydney, New South Wales, Australia, of stealing a wristwatch. She
was sentenced to 1 month of hard labor, with the sentence being
suspended on entering a 20 recognizance, guaranteeing good behavior for
a period of 2 years.
Appellant testified that she was working as a waitress and maid in
the nurses' quarters of a hospital in Australia at the time she found
the wristwatch in question outside the door of the nurses' quarters.
Thereafter, she made no attempt to locate the owner and wore the watch
for several months before the owner noticed it. Appellant said that she
intended to keep the watch when she took possession of it.
Section 116 of the Crimes Act of 1900 for New South Wales Australia
(2 New South Wales, Statutes Annotated 770) states as follows:
Larceny. -- Every larceny, whatever the value of the property
stolen shall be deemed to be of the same nature, and shall be
subject to the same incidents in all respects as grand larceny was
before the passing of the act seventh and eighth George the
Fourth, chapter 29. /1/
In addition, the Larceny Act of 1916 (6 and 7 Geo. V, c. 50), in
effect in all Australia, provides:
Larceny. -- For the purposes of this act (1) a person steals
who, without the consent of the owner, fraudulently and without a
claim of right made in good faith, takes and carries away anything
capable of being stolen with intent, at the time of such taking,
permanently to deprive the owner thereof: Provided, That a person
may be guilty of stealing any such thing, notwithstanding that he
has lawful possession thereof, if, being a bailee or part owner
thereof, he fraudulently converts the same to his own use or the
use of any person other than the owner; (2)(i) the expression
"takes' includes obtaining the possession * * * (d) by finding,
where at the time of the finding the finder believes that the
owner can be discovered by taking reasonable steps; (ii) the
expression "carries away' includes any removal of anything from
the place which it occupies, but in the case of a thing attaches,
only if it has completely detached; Emphasis supplied. /2/
According to Australian precedents, a person, who finds personal
property, actually or apparently lost, and appropriates it with intent
to take control over the property, is not guilty of larceny, if the
owner actually cannot be found. However, if the person takes the
actually or apparently lost property, while reasonably believing that
the owner can be found, larceny has been committed, (R v. Thurborn, 1
Den. 587; R v. Mortimer, 1 C. of Australia Rep. 20; Merry v. Green, 7
M. & W. 623; R v. Gardner, L. & C. 243. There must, of course, be a
felonious taking with intent to deprive the owner permanently of his
property. R v. Jones, 19 C. Austrl. Rep. 39; R v. Crump, 1 C. & P.
658; R v. Holloway, 1 Den. 370.)
In addition, a necessary ingredient of the offense of larceny is the
belief of the finder, at the time he takes possession of the property,
that the owner could be found, R v. Clyde, L.R. 1 C.C.R. 139.)
Furthermore, once the property has been appropriated to the person's own
use or benefit, the fact that the taker "intended eventually to restore'
the property does not constitute a valid defense to a larceny charge.
(Section 118 (Crimes Act of 1900, New South Wales, Australia); R v.
Johnson, 6 S.C.R. 201.)
Hence, since moral turpitude inheres in the criminal intent /3/ and a
general intent to deprive the owner of the enjoyment of his property
permanently is required by the statutes of New South Wales, Australia,
we conclude that appellant was in fact convicted of a crime involving
moral turpitude.
It should be noted in passing that appellant had admittedly passed
her 18th birthday, when she committed larceny in question. Appellant
testified that she was treated as an adult and detained in prison with
adult offenders. Thus, according to the terms of section 429 and
section 552 of the Crimes Act of 1900 (2 New South Wales Statutes
Annotated 852) /4/ as well as section 5 and section 59 of the Child
Welfare Act of 1923 (1 New South Wales Statutes 556), /5/ appellant was
not a juvenile at that time and was not treated as one by the court.
However, since appellant has a bona fide and meritorious reason for
seeking temporary admission to the United States, we will authorize
entry under the 9th proviso to section 3 (act of 1917).
Order: It is hereby ordered that the alien be admitted as a
temporary visitor for 3 months under the 9th proviso to section 3 of the
Act of 1917, notwithstanding her commission and conviction for larceny
in Australia in 1948.
(1) Section 117 (Crimes Act of 1900, New South Wales, Australia)
defines simple larceny and makes any stealing, for which there is no
special penalty, a crime. Cf. Trainer v. R , 4 C.L.R. 126; R v. King,
SS. R. 562.
(2) This is the first statutory definition of larceny in English law.
It did not change the existing law, but sought to harmonize the
accepted common law definitions with certain statutory additions,
relating to bailees and part owners. Hamilton & Addison, Criminal Law
and Procedure (for New South Wales), Fifth Ed., 1947, p. 142.
(3) 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).
(4) See appendix for text of statutes.
(5) See appendix for text of statutes.
Crimes Act of 1900, 2 New South Wales Statutes Annotated 852 part XII
(Sentences) -- Section 429. Juvenile offenders.
(1) Where any person, under the age of 16 years, is convicted on an
indictment under this act --
The Court may abstain from passing any sentence upon him, on his
entering into a recognizance, with sureties, that he will appear and
receive sentence, if within 3 years required so to do, and will keep the
peace and be of good behaviour for that period; or
The court may, instead of, or in addition to, any sentence, whether
of penal servitude or imprisonment, direct that the offender shall be
sent forthwith, or at the expiration of his sentence, to a reformatory
school under the provisions of any act relating to reformatory schools.
(2) Where a person of or above the age of 16 years and under the age
of 18 years is convicted --
(a) Of an offense under sections 71, 72, or 76 of this act, and the
jury was satisfied that the girl in question was at the time of the
offense of or above the age of 14 years and under the age of 16 years;
or
(b) Of an offense under sections 72-A, 78-A, or 78-B; he may be
dealt with in the manner provided in subsection 1 of this section, or
under the provisions of sections 65, 66, 67, and 68 of the Child Welfare
Act, 1923.
(Note. -- Whenever inconsistent with act of 1923, section is
repealed. Act #21, 1923, s.3.)
Section 552. Discharge of juvenile first offenders. -- Where any
person under the age of 16 years is summarily convicted before justices
under this act, and it is a first conviction, then justices may, if they
think fit, discharge the offender upon his asking such satisfaction to
the party aggrieved for damages and costs as they think just, or upon
his entering into a recognizance, with one or more surety or sureties,
that he will be of good behavior for a term to be fixed by them, not
exceeding the 12 months next ensuing.
Section 5. "Child' means boy or girl under 16 years of age and in
part IV and part IX means boy or girl under 18 years of age.
Part IV. Institutions; ss. 16-28.
Part IX. Committal of neglected or uncontrollable children or
juvenile offenders; ss. 50-68.
Part IX. -- Section 59. Where a child (under 18 years) is summarily
convicted of an offense for which the penalty is punishment by
imprisonment, or imprisonment in default of payment of a fine, the court
may --
(a) Release the child on probation upon such terms and conditions and
for such period of time as the court may think fit; or
(b) Commit the child for such period of time as the court may think
fit to the care of some person who is willing to undertake such care;
or
(c) Commit the child to an institution; or
(d) Sentence the child according to law.
"Sentenced to imprisonment' -- Confinement to New York State Vocational Institution -- Section 19, Immigration Act of February 5, 1917.
Confinement of subject to the New York State Vocational Institution at West Coxsackie, N.Y., by order of the court convicting him for petit larceny committed when over 16 but less than 18 years of age, was not a "sentence to imprisonment' within the meaning of the immigration laws, the confinement therein being considered "corrective' rather than "penal.' (See 4, I. & N. Dec. 136.)
CHARGES:
Warrant: Act of 1917 -- Sentenced more than once for crimes, to wit: Petit larceny and theft in violation of the 93d Article of War.
Lodged: Act of 1917 -- Crime within five years, to wit: Petit
larceny.
Discussion: The record related to a 29-year-old married male, native
of Scotland and citizen of Great Britain, whose last entry into the
United States within the meaning of the immigration laws occurred at
Buffalo, N.Y., during June or July 1938.
The record discloses that respondent was arraigned in the city court
at Buffalo, N.Y., on September 28, 1938, charged with the crime of grand
larceny, second degree, committed on September 26, 1938, that he pleaded
guilty to the offense of petit larceny and was sentenced to Coxsackie
(New York State Vocational Institution, West Coxsackie, N. Y.). This
offense forms the basis of the lodged charge and also is one of the
crimes which form the basis of the charge stated in the warrant of
arrest. To establish respondent's deportability on either one of the
charges, it must be shown that he was sentenced to imprisonment for this
offense for a term of a year or more. The question presented in this
case is, therefore, whether the sentence to Coxsackie was a sentence to
imprisonment within the meaning of the immigration laws.
At the time the offense was committed by respondent he was 16 years
and 10 months of age. The offense of petit larceny in the State of New
York is a misdemeanor. New York penal law, section 1299. Under the
provisions of the New York penal law, the offense was punishable by
imprisonment in a penitentiary, or county jail, for not more than 1
year, or by a fine of not more than $500, or by both. New York penal
law, section 1937. However, under the provisions of section 2184-a of
the New York penal law, in view of respondent's age, the trial court
could direct him to be confined in the New York State Vocational
Institution and he was so ordered confined. It has been held that
confinement in a reformatory is a sentence to imprisonment within the
meaning of the Immigration Act, unless the local statutes under which
such confinement was ordered indicate that the primary purpose of such
confinement was corrective rather than penal. Matter of C R ,
A-7828860, C.O. 1950, 4, I. & N. Dec. 136.
Prior to the enactment of legislation creating the State Vocational
Institution, section 2184 of the penal law provided in part as follows:
Where a male person of the age of 16 years and under the age of
18 years has been adjudicated to be a juvenile delinquent, or
found to be a disorderly person or a wayward minor or a vagrant or
found guilty of any offense other than a misdemeanor or a felony,
or convicted of a crime not punishable by death or life
imprisonment, the trial court may, instead of sentencing him to
imprisonment in a state prison or in a penitentiary, direct him to
be confined in a house of refuge established by the managers of
the society for the reformation of juvenile delinquents in the
city of New York; under the provisions of the statute relating
thereto.
The vocational institution at West Coxsackie is a State institution
created to take over the activities of the house of refuge which was
local in character and is the successor body in law to the house of
refuge. Article 13-A of the Correction Law of New York (L. 1932, Ch.
582) provided in part as follows:
Sec. 331. New York State Vocation Institution created. There
shall be in the department of correction a state reformatory
institution for the care, supervision, and training of persons
legally committed thereto, to be known as the New York State
Vocational Institution.
Sec. 332. Transfer of New York house of refuge to jurisdiction
of State department of correction:
1. Until the acquisition of a site therefor and until the
buildings of the New York State Vocational Institution are
completed and ready for occupancy, the New York house of refuge at
Randall's Island, established by the managers of the society for
the reformation of juvenile delinquents in the city of New York,
shall be deemed to be an institution under the jurisdiction of the
state department of correction and shall be used for the care,
treatment, training, and education of male persons 16 years of age
or over, but less than 19 years of age, who have been adjudicated
to be juvenile delinquents, or found to be a disorderly person, or
a wayward minor, or a vagrant, or found guilty of any other
offense, or of a misdemeanor, or a felony, except crimes
punishable by death or life imprisonment. With respect to all
appropriations now made for personal service for the New York
house of refuge in force when this act takes effect, said
appropriations shall be considered a lump sum appropriation for
personal service and the commissioner of correction is given power
by this act to make such redistribution in positions and fix
salaries as he may deem advisable.
2. When the commissioner of correction shall certify to the
board of managers of the society for the reformation of juvenile
delinquents in the city of New York that the New York State
vocational institution is ready to receive delinquents, deliquents
confined in the said house of refuge shall be transferred to the
New York State vocational institution, which shall be the
successor body in law to the New York house of refuge, and shall
thereafter be confined in such institution and shall serve the
unexpired balance of their respective terms in accordance with the
provisions of this article in the same manner as if such person
had been originally committed to such institution.
Former section 2184 of the New York penal law was amended by L.
1932, chapter 414 by eliminating all reference to the house of refuge
and adding section 2184-a which provides as follows:
Where a male person, 16 years of age or over, but less than 19
years of age, has been adjudicated to be a juvenile delinquent, or
found to be a disorderly person, or a wayward minor, or a vagrant,
or found guilty of any offense or of a misdemeanor, or of a
felony, except crimes punishable by death or life imprisonment,
the trial court may, instead of sentencing him to imprisonment in
a State prison or in a penitentiary, direct him to be confined in
the New York house of refuge established by the society for the
reformation of juvenile delinquents in the city of New York, or
its successor body in law, the New York State vocational
institution, under the provisions of the statutes relating
thereto.
The term of any person so convicted and sentenced for a felony
shall not exceed the maximum term, provided by law for the crime
for which the person so convicted and sentenced and in the case of
any person convicted and sentenced for any other offense or for a
misdemeanor, the term of imprisonment shall be for a period not
exceeding 3 years.
In connection with the conviction on May 27, 1930, of a 17-year-old
male at Rochester, N.Y., the circuit court of appeals held that a
sentence to the New York house of refuge on Randall's Island was not a
sentence to imprisonment within the meaning of section 19 of the
Immigration Act of 1917, since the prime object of that institution was
reformation rather than punishment, (U.S. ex rel. Cerami v. Uhi, 78 F.(
2d) 698 (C.C.A. 2, 1935)). Section 331 of the correction law previously
quoted designates the New York State Vocational Institution as one for
the "care, treatment, training, and education' of male persons between
16 and 19 years of age. The reasoning of the court in the cited case of
Cerami v. Uhl would appear to be equally applicable to the successor
body to the house of refuge. It should also be noted that section
2184-a of the New York penal code in referring to the sentencing to the
New York State Vocational Institution contains language to the effect
that "the trial court may, instead of sentencing him to imprisonment in
a State prison or penitentiary, direct him to be confined.' Italics
supplied. In other words the provisions of section 2184-a, in referring
to a sentence to the New York State Vocational Institution refers to a
confinement rather than to a sentence to imprisonment. It should also
be noted that, although respondent was not tried as a juvenile
delinquent, the court under the New York penal code could have sentenced
him to the penitentiary or county jail. However, the court deemed it
advisable that he be sent to the New York State Vocational Institution.
In view of the foregoing, it is concluded that the local statutes under
which respondent's confinement was ordered indicated that the primary
purpose of such confinement was corrective rather than penal.
Consequently respondent was not sentenced to imprisonment within the
meaning of the immigration laws, in respect to the offense of petit
larceny committed by him.
It is therefore concluded that neither the charge stated in the
warrant of arrest nor the lodged charge can be sustained. Since from
the record, it does not appear that respondent is deportable on any
charge, the proceedings will be terminated.
Order: It is ordered that the proceedings be terminated.
Citizenship -- Expartriation -- Army deserter in wartime dishonorably discharged after conviction by court martial -- Construction of section 401(g) of the Nationality Act of 1940.
(1) Native-born citizen held to have lost his United States
nationality on March 15, 1949, under the provision of section 401(g) of
the Nationality Act of 1940, by reason of his dishonorable discharge
from the United States Army after his conviction by a court martial for
deserting the military service of the United States in time of war.
4,1(2) Loss of United States nationality under section 401(g) of the
Nationality Act of 1940 held to have occurred on March 15, 1949, under
the following circumstances: Desertion from the military service of the
United States which occurred from about December 17, 1943, until April
9, 1944; after conviction by court martial, sentenced on May 13, 1944,
to be dishonorably discharged and to be confined at hard labor for 25
years; on June 19, 1945, the unexecuted portion of sentence including
dishonorable discharge was suspended and restoration to active duty
followed; as a result of absence without leave from August 9, 1945, to
April 12, 1948, suspension of unexecuted suspended sentence vacated and
unexecuted sentence ordered into execution; on October 13, 1948, so
much of sentence to confinement as was in excess of 6 years remitted by
direction of the President; and on March 15, 1949, dishonorable
discharge from the military service of the United States.
Discussion: The petition was filed for the purpose of establishing
that the beneficiaries are each entitled to a nonquota status under the
provisions of section 4(a) of the Immigration Act of 1924, as amended,
as the wife and child of a citizen of the United States.
The question presented is whether the petitioner is a citizen of the
United States.
The petitioner acquired United States citizenship at the time of his
birth on April 10, 1911, at Carnegie, Pa. He was lawfully married to
the beneficiary wife on May 20, 1946, in Italy. Documentary evidence of
the birth of the petitioner's child, named in the petition, has not been
submitted. The petitioner is gainfully employed, earning about $250 per
month. His employment is of a permanent nature. He has submitted
satisfactory evidence of his ability and willingness to support the
beneficiaries, in the event of their admission into the United States.
On March, 7, 1942, the petitioner was inducted into the Army of the
United States at New Cumberland, Pa. On March 5, 1943, he departed for
military service abroad. About December 17, 1943, while this country
was at war, the petitioner deserted from the military service of the
United States and remained absent in a desertion status until April 9,
1944, when he was apprehended. Thereafter he was found guilty by a
general court martial of violation of the 58th Article of War, by reason
of such desertion, resulting in his being sentenced on May 13, 1944, to
be dishonorably discharged from the military service, forfeiting all pay
and allowances due or to become due, and to be confined at hard labor
for a period of 25 years. On June 19, 1945, the unexecuted portion of
the sentence, including dishonorable discharge which was suspended until
his release from confinement, was suspended and the petitioner was
restored to active duty. Subsequently the petitioner absented himself
from military service without official leave from August 9, 1945, to
April 12, 1948, inclusive. As a result of this absence without official
leave, the suspension of the unexecuted portion of the sentence
previously imposed was vacated and the sentence was ordered carried into
execution. Under date of October 13, 1948, so much of the sentence to
confinement as was in excess of 6 years was, by direction of the
President, remitted. On March 15, 1949, the petitioner was dishonorably
discharged from the military service of the United States in accordance
with the unremitted portion of the sentence imposed by general court
martial.
Prior to its amendment by the act of January 20, 1944, section 401(
g) of the Nationality Act of 1940 (8 U.S.C. 801), provided 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 service of the United
States in time of war, provided he is convicted thereof by a court
martial;
The present form of the statute was effected by the amendatory act of
January 20, 1944, subdivision (g) of the statute now reads 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 service 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: Provided, That notwithstanding loss of nationality or
citizenship or civil or political rights under the terms of this
or previous acts by reason of desertion committed in time of war,
restoration to active duty with such military or naval forces in
time of war or the reenlistment or induction of such a person in
time of war with permission of competent military or naval
authority, prior or subsequent to the effective date of this act,
shall be deemed to have the immediate effect of restoring such
nationality or citizenship and all civil and political rights
heretofore or hereafter so lost and of removing all civil and
political disabilities resulting therefrom.
The petitioner deserted from the military service in 1943, but he was
apprehended and tried and sentenced by general court martial after the
effective date of the said amendatory act of January 20, 1944. The
statute provides that the penalty of loss of nationality shall not be
effected unless, as a result of such conviction, the person is dismissed
or dishonorably discharged from the armed forces. Under the statute, if
a member of the military service is convicted by court martial of
deserting the military or naval service in time of war and, as a result
thereof, he is dismissed or dishonorably discharged from the service, he
immediately loses his citizenship. However, in the instant case, the
petitioner's dishonorable discharge was suspended until he had served
part of his sentence of confinement and the remaining portion of the
sentence of confinement had been remitted. Therefore he did not lose
his United States citizenship until March 15, 1949, when he was actually
dishonorably discharged from the military forces. The statute
definitely provides for the loss of "nationality.'
The petitioner's restoration to duty under suspension of sentence,
which suspension was later revoked, and a remittance of a portion of his
sentence of imprisonment, could not, under the statutory provisions,
effect any change in his citizenship status, as he did not lose his
nationality until his dishonorable discharge pursuant to the unremitted
portion of the court martial sentence. Nor could such temporary
restoration to duty defeat the operation of the statute with respect to
loss of nationality upon the subsequent execution of the sentence of
dishonorable discharge.
On the record, it is concluded that the petitioner lost his United
States citizenship on March 15, 1949, upon being dishonorably discharged
from the United States Army by reason of his conviction of deserting the
military forces of the United States in time of war. Therefore his visa
petition must be denied.
With respect to the petitioner's child, alleged to have been born in
Italy on May 14, 1947, it appears that she may have acquired citizenship
in the United States under the provisions of section 201(g) of the
Nationality Act of 1940. Application for an American passport can be
made for the child, at which time her citizenship status may be
determined.
Order: It is ordered that the petition of B H for issuance of
immigration visas to his wife and child be denied.
Upon consideration of the entire record, it is ordered that the
appeal from the decision of the Commissioner be and the same is hereby
dismissed.
Visa -- Authority of Attorney General in deportation proceedings to review de novo the factual sufficiency upon which an alien was issued an immigration visa by a consular officer in absence of any fraud or misrepresentation on the part of the alien.
(1) When nonquota visa was obtained from United States consul without fraud or misrepresentation but under circumstances indicating an error of judgment on the part of the consul in issuing the document, the Service is not bound by the consular determipation and has the authority in deportation proceedings to review de novo the facts relevant to whether the alien was entitled to issuance of the visa and thereafter entitled to admission to the United States.
(2) An alien issued a section 4(d) immigration visa (Immigration Act
of 1924) as a "professor' found not to have been entitled to the
issuance thereof, although all the facts were before the consul, there
was no misrepresentation of fraud, and the consul had some evidence to
support his determination. Based upon such finding, the alien is
deportable on charges that at time of entry he was a quota immigrant not
in possession of a quota immigration visa and that he was not a nonquota
immigrant as specified in his visa.
Discussion: The facts presented by the appeal in this case are
these: Respondent was born in Czechoslovakia on September 28, 1923. He
arrived in the United States at the port of New York on January 15,
1949, and was admitted upon presentation of nonquota immigration visa
No. 145 issued to him by the American consul at Copenhagen, Denmark, on
December 29, 1948, under the provisions of section 4(d), Immigration Act
of 1924 (8 U.S.C. 204) which provides as follows:
When used in this act the term "nonquota immigrant' means --
(d) 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 any
religious denomination, or professor of a college, academy,
seminary, or university; * * *.
The warrant of arrest in deportation proceedings in this case was
served upon respondent on December 15, 1949, 11 months after his
admission, and hearings thereunder were had on February 16, 1950, and
June 22, 1950.
Respondent, shortly before arriving in the United States, received
the degree of bachelor of science from the Veterinarian and Agricultural
College, Copenhagen, Denmark. He is presently a research fellow at the
Iowa State College, Ames, Iowa.
Counsel, in the maim, presents the following points in support of
cancellation of proceedings:
(1) In the absence of fraud or misrepresentation in the
issuance of the visa to the alien, the immigration authorities may
not go behind the action of the American consul who issued the
visa.
(2) That since the hearing examiner's decision was not excepted
to by either the Service or by alien's counsel, such decision was
an initial decision and thus became final.
The Service states that the question for determination is whether or
not respondent was entitled to the classification of a nonquota
immigrant as a "professor,' and that inquiry by it may be made at any
time after an alien's admission where a prima facie noncompliance
appears. Citing Philippines v. Day, Commr. of Immigration, 283 U.S.
48, 51 S.Ct. 358 (1931), holding that section 34, Immigration Act of
1917, does not override or qualify the provisions of section 14,
Immigration Act of 1924, with relation to deportation of seamen here
illegally and that the 3-year limitation in section 34 does not apply to
any alien, including seamen, who entered the United States after the
1924 Immigration Act; United States v. Vanbiervliet, 284 U.S. 590, 52
S.Ct. 132 (1931), holding that the 5-year limitation in section 19,
Immigration Act of 1917, does not apply to the case of an alien entering
the United States without a visa after the 1924 act and that section 4
thereof permits deportation at any time; United States ex rel.
Poppovich v. Karnuth, Director, 25 F.Supp. 883 (D.C.W.D.N.Y., 1938).
This case involved a quota immigrant who was in possession of a reentry
permit procured by fraud, in that he did not have prior lawful entry as
a basis for issuance of such a permit; United States ex rel. Jacovides
et al. v. Day, 32 F.(2d) 542. This case, decided May 6, 1929, involved
an alien who arrived with a 4(d) visa and was excluded by a board of
special inquiry as a quota immigrant. The court reversed and found that
such alien was coming to the United States to carry on his vocation;
Jeu Jo Wan v. Nagle, Commissioner of Immigration, 9 F.( 2d) 309 (1925).
This cas involved a certificate issued under section 6 of the act of
July 5, 1884, as amended by the act of July 5, 1885; Terzian v.
Tillinghast, Commr. of Immigration, 33 F.(2d) 803; this case involved
an alien who was coming in as a student under section 4( e), Immigration
Act of 1924, who was excluded because of fraud in connection with his
status; Keating ex rel. Mello et al. v. Tillinghast, Commr. of
Immigration, 24 F.(2d) 105 (D.C. Mass. 1928); the alien here was
excluded upon arrival since he was found to be illiterate; United
States ex rel. Katnic v. Reimer, 25 F.Supp. 925 (D. C.S.D.N.Y., 1938);
this case also involved an alien who was excluded upon arrival. And
that these rulings recognize the inclusive character of section 2(g) of
the Immigration Act of 1924, which reads:
Nothing in this act shall be construed to entitle an immigrant,
to whom an immigration visa has been issued, to enter the United
States, if, upon arrival in the United States, he is found to be
inadmissible to the United States under the immigration laws. The
substance of this subdivision shall be printed conspicuously upon
every immigration visa.
In Silva v. Tillinghast, 36 F.(2d) 801 (D.C. Mass., December 20,
1929), the court held that section 2(g), Immigration Act of 1924,
providing for admission of an alien in possession of a visa, if
otherwise admissible under the immigration laws, does not authorize
immigration officials to refuse admittance on ground that visa was
mistakenly or improvidedly granted by American consul after exhaustion
of quota where all facts entitling alien to admission exist, in the
absence of fraud. The point was made that section 2(g), 1924
Immigration Act, confers upon immigration tribunals the whole power to
decide on admissibility, including the question whether the visa was
properly granted. The court disagreed and stated that the question
whether an alien is "otherwise admissible'; that is, whether he comes
within the excluded classes, is by the act expressly reserved to the
immigration authorities. But the question whether a visa should be
granted is for the consular officer to determine. This power is
expressly granted to him under section 2 of the act. The court
concluded that in the absence of fraud the immigration authorities in
that case did not have the right to question whether the visa presented
by the alien was properly issued and where the alien was not otherwise
inadmissible.
Thus section 2(g), quoted above, concerns examination by immigration
officials upon arrival. Emphasis added. In the instant case proceedings
were initiated more than 15 months following arrival. Most of the cases
cited were exclusion cases involving examination by immigration
officials at time of arrival. Others are not material to the issue
here.
Even in the Silva v. Tillinghast case (supra), the court, it appears,
did not hold that proceedings were not in order after arrival, but that
reexamination of alien's qualification by immigration officials was
precluded, in the absence of fraud.
We believe that even after arrival immigration officials have power
to inquire into cases where there is fraud involved. For example, an
alien may succeed in entering with a nonquota immigration visa, secured
by fraud, and the fact is that the alien was subject to the quota. It
could not be seriously contended taht the immigration authorities are
precluded from taking action merely because the alien's entry occurred
some time before. Section 14, Immigration Act of 1924, provides that
any alien who at any time after entry is found to have been at time of
entry not entitled under said act to enter the United States, shall be
deported, etc.
An alien who secures a visa to which he is not entitled by fraud, is
in no better position than one who enters illegally without a required
visa.
However, the instant case presents no issue of fraud whatever. In
effect, the position of the Service is that the consul in effect issued
the visa through an error of judgment. /1/ We can agree if the consul
was clearly wrong -- if in fact there was no basis in law for his action
-- section 14 is authority for a finding of deportability in an
expulsion proceeding. This is not such a case. Here the immigration
authorities are weighing the evidence before the consul, evidence which
tended to support the consul's action, to see if they agree with him,
where there was no fraud or misrepresentation on the part of the
respondent.
The evidence of record appears to establish that the respondent met
the qualifications for a 4(d) status and the Consul issuing the visa was
so satisfied. We agree with the hearing examiner that the proceeding
should be canceled. The hearing examiner found (and the examining
officer took no exception) that the respondent presented all proper
documents to the consul and that upon arrival in the United States he
was examined and admitted; that respondent was graduated from the
Veterinarian and Agricultural College in Copenhagen, Denmark, receiving
the degree of bachelor of science and that during his undergraduate work
he gave lectures in college which, while they were irregular lectures or
seminars, were considered as approximately the same style or method of
teaching as respondent is presently required to perform in his present
position at Iowa State College. Also respondent taught language while a
member of the Royal Air Force from December 5, 1940, to January 11,
1946, and also it is indicated he held seminars and gave lectures at the
Veterinarian and Agricultural College at Copenhagen. He concluded that
in the absence of any evidence indicating fraud and the fact that he was
legally inspected and admitted to the United States and the further fact
that he proceeded directly to Iowa State College and took up his
position as a research fellow there, that the validity of the visa
issued to him should not now be questioned.
We do not pass upon counsel's second contention at this time.
Order: It is ordered that the proceeding be quashed.
(1) Regulations of the State Department (title 22, C.F.R.) provide as
follows:
"42.224 (61.224) Professors. -- (a) An applicant for a nonquota
immigration visa as a "professor' under sec. 4(d) of the act ordinarily
should be required to show that he had actually been engaged in giving
instruction to students as a member of the faculty in a recognized
college, academy, seminary, or university and that this vocation has
constituted his principal occupation. Emphasis added.
"42.225 (61.225) (b) sec. 4(d) of the act requires that an applicant
for a nonquota immigration visa under that section shall establish that
he has been following the vocation of minister of religion or professor
of a college, academy, seminary, or university for a period of at least
2 years immediately preceding the date of his application for
admission.'
Note 147 of Visa Supplement A issued by the State Department relating
to professors indicates that there are certain other cases in which
persons may qualify as "professors' and that included under that section
are teachers of foreign languages who are properly equipped for that
occupation whether or not they hold college or university degrees, and
the terms "academy' and "seminary' in the same section are construed as
applicable to any reputable institutions of learning which are equipped
to prepare students for college.
The reason for the foregoing is that it is evident that the intent of
the law is to enable * * * institutions of learning in the United States
to bring * * professors from foreign countries rather than to except
such persons from quota requirements simply because of their vocational
status.
Discussion: The Service has presented a motion to the Board asking
that it reconsider and withdraw its decision of October 31, 1951,
canceling proceedings, or, in the alternative, that the case be
certified to the Attorney General for review pursuant to 8 C.F.R.,
90.12(c).
The facts are adequately set forth in the Service's opinion of
February 26, 1951, and the Board's opinion of October 31, 1951, both
contained in this record. We note that certain minor errors appear in
both the Board's decision of October 31, 1951, and the hearing officer's
discussion. Same, however, are not material to the issue in the case.
The proceedings in this case arose by way of deportation action
initiated by the Immigration Service some 11 months after the alien, a
Czechoslovakian, was admitted to the United States upon presentation of
a nonquota immigration visa issued to him by the American consul at
Copenhagen, Denmark, on December 29, 1948, under the provisions of
section 4(d) Immigration Act of 1924. /1/
We see no reason to reverse our order canceling proceedings. The
question appears to be one of law and fact. The Service, through its
representative, argued rather apprehensively that its authority to
investigate cases of this nature after an alien has been admitted to the
United States will be circumscribed by the Board's ruling. Such, of
course, is not the fact and our decision makes this plain.
We have indicated that in all cases where there is fraud in obtaining
an immigration visa or entry, or where no factual basis existed upon
which an alien obtained or secured a particular immigration status in
the issuance of an immigration visa, there is authority in law for the
Service to exclude, or, if the alien has entered the country, to
initiate deportation proceedings.
Counsel for the Service in his argument seemed to feel that the Board
in reaching its decision relied heavily on the case of Silva v.
Tillinghast, 36 F.(2d) 801, wherein the court held that whether an alien
is "otherwise admissible' is by law expressly reserved to the
immigration authorities, but the question of whether a visa should be
granted is for the consular officer to determine under the power of
section 2(g), Immigration Act of 1924. The court concluded that in the
absence of fraud the immigration authorities do not have the right to
question whether the visa presented by the alien was properly issued and
where the alien was not otherwise inadmissible. Emphasis added.
We noted that in all of the cases cited by the Service, including
those cited by the Service's representative during oral argument on the
motion, /2/ involved either fraud or a total lack of a particular
immigration status claimed.
In the case before us no issue of fraud is alleged and in fact
absence of any fraud or misrepresentation on the part of the alien is
conceded. Nor is there a showing that the alien did not present any
evidence when he applied for and was granted a nonquota visa as a
professor under section 4(d), Immigration Act of 1924.
In essence, what the Service argues is that on the evidence presented
to the consul by the alien it, contrary to the consul's action, would
have found that the alien did not measure up to the full requirements to
receive a nonquota visa as a professor. We hold that error of judgment
on the part of the consul in evaluating the evidence presented to him
will not now justify disturbing the consul's finding in the absence of
fraud or misrepresentation, or a total absence of any evidence before
him.
Order: It is ordered that the motion to reconsider be and the same
is hereby denied.
Pursuant to section 90.12(c), 8 C.F.R., the case is certified to the
Attorney General for review of the Board's action.
(1) During oral argument on the motion counsel for the Service called
attention to line 14, p. 5 of the Board's decision of October 31, 1951,
with respect to the dates "December 5, 1940, to January 11, 1946.' These
dates also shown in the hearing officer's decision, at p. 2, line 28,
are apparently in error and should read "from November 1944 to January
1946.'
(2) Heizaburo Hirose v. Berkshire, 73 F.(2d) 86 (C.C.A. 9, October
22, 1934).
The decision and order of the Board of Immigration Appeals, dated
October 31, 1951, as reaffirmed in its decision and order of June 10,
1952, is hereby reversed. The alien was permitted to enter the United
States by the Immigration authorities as a nonquota immigrant after
having obtained a nonquota immigration visa from the United States
consul in Copenhagen without fraud or misrepresentation. Some evidence
existed to support the alien's claim to a nonquota immigrant status.
Thereafter deportation proceedings were instituted under section 14 of
the Immigration Act of 1924. As I interpret section 14, once
deportation proceedings have been instituted pursuant to it, a de novo
review of the facts relevant to the question whether the alien was
entitled to enter the United States at the time of entry is required
even under circumstances such as are present in the instant case. This
order does not determine that question or, except as indicated, any
other question present in the case. The Board of Immigration Appeals is
authorized to take such further action as may be not inconsistent with
this order.
Discussion: This case is before us on the basis of the Attorney
General's order, reversing the decision and order of this Board dated
October 31, 1951, as reaffirmed by us on June 10, 1952.
The facts in this case are fully set forth in our previous decision
of October 31, 1951, at which time we ordered that the proceedings be
terminated. The effect of the Attorney General's decision is to sustain
the position of the Service that the respondent is deportable on the
grounds stated in the warrant of arrest; that is, that at the time of
entry he was a quota immigrant who was not in possession of a quota
immigration visa and that he was not a nonquota immigrant as specified
in his visa. Since it has been determined that the respondent's entry
was unlawful and that he is deportable, we will give consideration to
the question of whether discretionary relief should be granted in this
case.
The respondent has no criminal record and we are satisfied regarding
his good moral character during the last 5 years. It appears that, at
this time, he may be in a position to meet the requirements for
obtaining a nonquota visa under the provisions of section 4(d) of the
Immigration Act of 1924. We will, therefore, afford him an opportunity
of adjusting his immigration status. Accordingly, the following order
will be entered.
Order: It is ordered that the order of the Acting Assistant
Commissioner dated February 26, 1951, and the orders of this Board dated
October 31, 1951, and June 10, 1952, be and the same are hereby
withdrawn.
It is further ordered that the alien be permitted to depart from the
United States voluntarily at any time prior to December 24, 1952,
without expense to the Government, to any country of his choice, under
such conditions as the officer in charge of the district deems
appropriate.
It is further ordered that preexamination be authorized, provided
that the respondent avails himself of this privilege on or before
December 23, 1952.
Citizenship -- Native born -- Expatriation -- Voting in foreign political election (Mexico, 1947) -- Section 401(e) of the Nationality Act of 1940 -- Defense -- Ignorance of status as United States citizen when voting -- Lack of intent to expatriate.
A native born citizen of the United States, by voluntarily voting in a political election in Mexico in 1947 performed the objective, overt act set forth in section 401(e) of the Nationality Act of 1940 and thereby expatriated himself; and such performance results in expatriation without regard to the knowledge of the subject as to his citizenship status at that time, and irrespective of this intent at the time he voted or of his ignorance of the consequences of his act of so voting.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 -- No immigration visa.
Executive Order 8766 -- No passport.
Discussion: The case presents an appeal from an order dated July 17,
1951, of the Assistant Commissioner confirming the appellant's exclusion
by a board of special inquiry at the port of Del Rio, Tex., on April 6,
1951, on the grounds stated above.
The appellant was born at D'Hanis, Tex., on September 5, 1924, of
Mexican citizen parents, thereby possessing United States and Mexican
nationality at birth. He resided in Mexico from November 8, 1928, until
1947 when he entered the United States by wading the river. He stated
that at the time he was not aware that he was born in the United States,
but subsequently received a birth certificate from his mother showing
his birth in this country. He had previously been informed by his
stepmother that he had been born in Mexico. Since 1947 the appellant
has continued to reside in the United States except for brief visits to
Mexico and is presently seeking admission as a citizen after a brief
absence to Mexico. During the course of the hearing the appellant
testified that he had voted in 1947 in an election for the President of
Mexico, and before he had voted for Benencio Lopez-Padilla for governor
of Coahuila. The board of special inquiry found that although the
appellant had been a citizen of the United States at birth, he had
expatriated himself by voting in a political election in 1947 under the
provisions of section 401(e) of the Nationality Act of 1940 (8 U.S.C.
801(e)), and was inadmissible on the grounds stated above. The
Assistant Commissioner affirmed the excluding decision of the board of
special inquiry but a brief filed by counsel takes issue with the
finding of expatriation.
Counsel's contention is that although it is conceded that the
appellant's act of voting in 1947 was voluntary it could not result in
the expatriation of the appellant in the absence of knowledge on the
part of the appellant that he was a citizen of the United States. In
passing, it may be noted that it is not disputed that the appellant had
no knowledge of his birth in the United States and of his United States
citizenship at the time he voted in Mexico sometime in 1947 or prior
thereto. The question squarely presented is whether the act of the
appellant in voting in a political election in Mexico in 1947
constitutes an act of expatriation under the provisions of section 401(
e) of the Nationality Act of 1940 in the absence of knowledge at that
time on the part of the appellant that he was a native-born citizen of
the United States.
In his brief counsel has cited the case of Cantoni v. Acheson, 88 F.
Supp. 576 (N.D. Calif. S.D., 1950), which counsel alleges stands for the
proposition that if the court in that case had been satisfied that the
plaintiff acted without knowledge that he was entitled to American
citizenship it would have entitled him to a judgment that he had not
lost citizenship so far as the question of forfeiture under section
401(c) of the Nationality Act of 1940 was concerned. We do not,
however, so construe that decision. In the Cantoni case, the plaintiff
contended that at the time he served in the Italian Army and took an
oath of allegiance to Italy, and also at the time he voted in the
Italian election he acted without knowledge that he was entitled to
American citizenship; hence, he claimed, such acts were not freely or
intelligently done, and since a full and intelligent choice was
essential to effectuate renunciation (cited Dos Reis ex rel. Camara v.
Nicolls, 161 F.(2d) 860 (1 Cir., 1947), and other cases), such acts had
no expatriative effect. The court, while expressing disbelief regarding
the claimed lack of knowledge of citizenship on the part of the
plaintiff, stated that even assuming the verity of plaintiff's
allegation regarding his citizenship, it did not constitute evidence
legally sufficient to sustain his contention that he did not freely and
intelligently perform the acts that, under the law, constitute
renunciation of American citizenship. The court further went on to say
that it is now settled law in cases arising under 8 U.S.C. 903 that
undisclosed intent is not legally relevant in determining the validity
of an overt act of renunciation; and quoted with approval from
Savorgnan v. U.S., 338 U.S. 491, 94 L.Ed. 287 (1950):
There is no suggestion in the statutory language (8 U.S.C.A.
801) that the effect of the specified overt acts, when voluntarily
done, is conditioned upon the undisclosed intent of the person
doing them.
The court in the Cantoni case then went on to point out that the
facts did not disclose the kind of duress or involuntariness present in
such cases as Dos Reis ex rel. Camera v. Nicolls (supra), and concluded
that the plaintiff had lost citizenship.
Counsel further sets forth that the intent of the person concerned is
a required element or expatriation and that the intent must be shown by
some express act or some other act from which it can be gathered, citing
Perkins v. Elg, 307 U.S. 325 (1939). The Elg case was not concerned
with either the factual or legal issues presented in this case. It must
be remembered that at the time of the decision in the Elg case in 1939,
voting did not constitute a statutory means of expatriation. As was
stated in the case of Miranda v. Clark, 180 F.( 2d) 257 (C.A. 9, 1950),
involving the case of voting by a person of 20 years of age, the
Nationality Act of 1940 was designed to clarify the then existing law by
clearly specifying a definite method of terminating dual citizenship and
of electing United States nationality. Commenting on the Elg case
(supra), the court stated that the holding in the Elg case must be
appraised in the light of the subsequent enactment of the 1940
Nationality Act which carefully reduced to specific statutory form a
description of the various acts which of themselves amounted to
voluntary expatriation; that voting in a political election in a
foreign state was one of these acts; and such an act amounted to a
voluntary expatriation under the 1940 law.
Section 401(e) of the Nationality Act of 1940 (8 U.S.C. 801(e))
provides that:
A person who is a national of the United States, whether by
birth or naturalization, shall lose his nationality by * * *
voting in a political election in a foreign state * * *
The Joint Departmental Committee Report on the Revision and
Codification of the Nationality Laws (House Committee on Immigration and
Naturalization, 1939, pt. 1, p. 67), in discussing this section stated:
Taking an active part in the political affairs of a foreign
state by voting in a political election therein is believed to
involve a political attachment and practical allegiance thereto
which is inconsistent with continued allegiance to the United
States, whether or not the person in question has or acquires the
nationality of the foreign state.
In any event it is not believed that an American national
should be permitted to participate in the political affairs of a
foreign state and at the same time retain his American
nationality. The two facts would seem to be inconsistent with
each other.
The observation of the court in Acheson v. Mariko Kuniyuki, 189 F.(
2d) 741 (C.A. 9, June 14, 1951) is appropriate at this point. The court
stated:
It is clear that appellee, by voting in the Japanese election
of 1946 and 1947, lost her United States nationality. The fact,
if it is a fact, that she did not intend to lose her nationality
and did not know that she would lose it if she voted in these
elections is immaterial.
The same contention urged by counsel in this case was previously
considered by us in Matter of M , A-6961564 (1949) (3, I. & N. Dec.
558) involving loss of nationality under section 401(c) of the
Nationality Act of 1940 by service in the armed forces of Italy in 1943.
It was there contended that at the time of the alleged act of
expatriation the appellant was unaware that he had acquired United
States citizenship at the time of his birth and hence, was not in a
position to elect between Italian and United States citizenship, and
therefore his Italian army service could not constitute an act of
expatriation. We held that expatriation is voluntary when the
performance of the act which Congress says results in expatriation is
voluntary and that the subject's ignorance of his acquisition of United
States citizenship could not excuse him from the normal result flowing
from his voluntary act. We referred to the observation made by the
court in Schaufus v. Attorney General, 45 F.Supp. 61, 65 (U.S.D.C. Md.,
1942) to the effect that "mere ignorance of the petitioner's status at
birth would not alone preclude him from still asserting it, provided he
had not lost it by what he had done meanwhile.' Italics supplied.
We accordingly hold that the instant appellant by voluntarily voting
in a political election in Mexico in 1947 performed the objective, overt
act set forth in section 401(e) of the Nationality Act of 1940 (8 U.S.C.
801(e)), and that performance of such act constituted expatriation
pursuant to the provisions thereof. We further hold that the
performance, voluntarily and without duress or coercion, of the specific
act described in the statute, results in expatriation without regard to
the knowledge of the appellant as to his citizenship status at that
time, and irrespective of the intent of the appellant at the time he
voted or of his ignorance of the consequences of the act of voting. We
conclude that the appellant has expatriated himself under the provisions
of section 401(e) of the Nationality Act of 1940; that he is an alien,
and that as an immigrant for permanent admission to the United States he
must present an unexpired immigration visa and a valid passport or other
document in lieu thereof.
Order: It is ordered that the appeal from the decision of the
Assistant Commissioner be and the same is hereby dismissed.
Citizenship -- Acquisition by birth here -- Expatriation -- Accepting employment under foreign government (1944) -- Section 401(d) of the Nationality Act of 1940 -- Defenses -- Evidence.
A person born in the United States on March 31, 1924, of natives and citizens of Italy (who resided in Italy from 1934 to October 1948), accepted employment as a teacher in the elementary schools of Gildone, Campobasso, Italy, for a short period in 1944, which position could not be filled by a foreigner (according to information received from the superintendent of schools for the province of Campobasso, Italy, in 1950), was held to have expatriated herself thereby under the provisions of section 401(d) of the Nationality Act of 1940 in 1944 when she was over 18. The period of time that the employment continued, the amount of compensation received, and incidental difficulties endured, such as length of travel are not elements involved in the application of the statute. The schools were not supervised by the military government (allied); she accepted the position under the Ministry of National Education (Italian); Italy had declared war on Germany on October 13, 1943; the existence of the allied military government in Italy at the time does not admit of a conclusion that the employment was otherwise than under the government of "a foreign state or political subdivision.'
CHARGE:
Warrant: Act of 1924 -- Remained longer -- visitor.
Discussion: The Assistant Commissioner has ordered the respondent
deported on the charge stated in the caption hereof from which decision
appeal has been taken to us and we have heard oral argument by counsel.
Respondent is a native of the United States having been born at
Cleveland, Ohio, on March 31, 1924. Her parents are natives and
citizens of Italy. She resided in Italy from 1934 to October 18, 1948.
She last entered the United States with a section 3(2) visa and an
Italian passport as the fiancee of an honorably discharged member of the
United States Armed Forces. The contemplated marriage did not occur.
The issue presented is whether the respondent has retained her
citizenship in the United States. The record shows that for a short
period in 1944 she accepted employment as a teacher in the elementary
schools of the city of Gildone, Province of Campobasso, Italy.
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:
(d) Accepting or performing the duties of, any office, post, or
employment under the government of a foreign state or political
subdivision thereof for which only nationals of such state are
eligible; * * * (8 U.S.C., 801).
In opposition to a finding of expatriation counsel, during oral
argument, directed attention to the fact that the respondent was but 20
years of age when employed as a schoolteacher, that the employment
continued for only a 2-month period, that her compensation totaled only
about $4, and that it necessitated her walking about 6 miles daily;
also that the military authorities were in control in Italy at the time
and required procurement of a pass issued by the military authorities to
travel to her place of employment. He cites our decision in Matter of R
, File 56158/346, November 1, 1944, Moser v. United States, 341 U. S.
41, 1951, and certain Japanese cases reported in 94 F.Supp., as opposed
to the conclusion that the respondent has lost citizenship.
As to her age, section 403(b) provides that "No national under 18
years of age can expatriate himself under section 401(d). The fact,
therefore, that she was under the age of 21, and a minor, affords no
relief, (Miranda v. Clark, 180 F.(2d) 257, 1950).
The period of time that the employment continued, the amount of
compensation received, and incidental difficulties endured, such as
length of travel, are not elements involved in the application of the
statute.
Respecting control by military authorities, we note that the
respondent's employment as a teacher involved a request by the provost
of the purveyor's office, Campobasso, on May 11, 1944, of the educator
officer, of the allied military government, for a pass permit. The
request read as follows:
Whereas your office has authorized the reopening of the
elementary schools of the city of Gildone, it is hereby
respectfully requested to consider issuing pass permit to * * *
who must reach that seat * * *
Also there is included in the record copy of pass issued to the
respondent authorizing travel from Campobasso to Gildone for the purpose
of schoolteacher, the pass being dated May 15, 1944, and valid for a
period of 5 days.
We note that the Japanese cases cited by counsel /1/ as also the case
of Arikawa v. Acheson, 83 F.Supp. 473, S.C. Calif. 1949, held that
voting in a Japanese election, ordered and conducted under the
supervision of the United States in 1946, did not participate in the
type of election contemplated by section 401(e) of the Nationality Act,
as not being a political election in a "foreign state.' That case,
however, we think distinguishable from the case before us. The election
was ordered and conducted by the occupying power. Here the schools were
not supervised by the military government. The request for pass permit
shows that the military authorities authorized the "reopening' of the
schools; furthermore, a certificate of loss of nationality, issued by
the American vice consul on March 20, 1945, states that the evidence of
loss consists of:
A statement made under oath by the expatriated person * * * to
the effect that in July 1944 she accepted a position under the
Ministry of National Education * * *.
Furthermore, as pointed out by the hearing officer in his decision,
Italy declared war on Germany October 13, 1943.
The existence of the allied military government in Italy at the time
does not, we believe, admit of a conclusion that the employment was
otherwise than under the government of "a foreign state or political
subdivision.' Obviously the military government maintained certain
controls, as evidenced by the grant of authority to reopen the schools
and the permit to travel; but the evidence is clear that the
maintenance and operation of the schools was under the Italian
authorities.
The R case (supra), concerned a native of the United States who
taught school in Mexico. The evidence showed that the law required
Mexican nationality as a requirement for eligibility for such
employment, but that such requirement was not enforced or even
considered; on the contrary, only competency and morality were the
determining factors in the selection of applicants. It was determined
that the practice followed, rather than the unenforced statutory
requirement, should be the test in determining whether expatriation
occurred.
The Moser case (supra), concerned an alien who filed a claim for
exemption from liability to military service as a neutral alien. He did
so on the advice of the Swiss Legation, the country of his nationality,
that he would not thereby waive his right to apply for naturalization.
The Supreme Court commented:
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.
We fail to see the application of this case to the issue presented
here.
It does not appear that the respondent sought or obtained advice from
any source as to the requirements of a schoolteacher, or concerning the
consequences which would result to her if she engaged in such
employment. On the other hand a communication from the first secretary
of the Embassy at Rome, dated January 16, 1950, states --
* * * the Embassy has been informed by the Superintendent of
Schools for the Province of Campobasso, Italy, that the position
held by M L G could not be filled by a foreigner * * *.
Counsel stated, evidently relying upon our decision in the R case
that he has written to the Italian Embassy for information as to the
practice in the selection of schoolteachers, but he had not received a
response; that he believed it was then the practice to take anyone as a
teacher; that confusion existed at that time and the girl was misled
into taking the position.
We are very sympathetic with the position in which the respondent is
placed, but we are at loss for law or precedent to find support for a
conclusion that would relieve her. Her position is not unlike that
which existed in Mackenzie v. Hare, 239 U.S. 299, 1915, which involved
an American woman who married an alien in California in 1909 and
thereafter sought to vote. The law then provided that an American woman
who married an alien should take the nationality of her husband. It was
contended that the statute did not apply to her, but the court said that
the statute "deals with a condition voluntarily entered into, with
notice of the consequences.'
Accordingly, the finding of expatriation will not be disturbed.
While the respondent has not made application for discretionary relief,
but has rested her appeal to us solely on the issue of her claim of
citizenship in the United States which has been resolved unfavorably to
her claim, inasmuch as she appears to be a person of good moral
character and fully qualified for relief, we will withdraw the order of
deportation entered by the Assistant Commissioner and authorize her
departure from the United States without an order of deportation.
Order: It is ordered that the outstanding order and warrant of
deportation be withdrawn.
It is further ordered that an order of deportation be not entered at
this time but that the alien be required to depart from the United
States, without expense to the Government, to any country of her choice
within 90 days after notification of decision, and conditioned upon
arrangements being made with the local immigration office for
verification of departure.
(1) Haruko Furuno v. Acheson, 94 F.Supp. 381 (S.D. Calif., 1950);
Mitsue Masuko Kai v. Acheson, 94 F.Supp. 383 (S.D. Calif., 1950); and
Fumi Rokui v. Acheson, 94 F.Supp. 439 (S.D. Calif., 1950).
Dissenting, ROBERT E. LUDWIG, Member.
Discussion: The issue in this case is whether the respondent is a
citizen of the United States or whether she lost her citizenship,
acquired by birth at Cleveland, Ohio, on March 31, 1924, by reason of
her acceptance of employment as a teacher in Italy for approximately 2
months during May and June of 1944. It is my opinion that on this
record the respondent has not become expatriated and that she is a
citizen of the United States for reasons hereinafter set forth. I do
not agree with the majority in this regard. The majority concedes that
the burden of establishing alienage in a deportation case is upon the
Government and that the presumption found in section 402 /1/ of the
Nationality Act of 1940 is a rebuttable one. It is their opinion that
the respondent has not overcome the presumption of expatriation arising
from evidence presented by the Government to the effect that the did
accept employment and that only nationals of Italy are eligible for such
employment. The majority also concedes that the question of whether
Italy was a "foreign state,' as that term is used in the statute,
presents a close issue but then chooses to rely on two district court
cases, whereas the weight of authority is just the opposite.
Expatriation, being a voluntary act under section 401 of the
Nationality Act of 1940, involves serious legal consequences and should
not be destroyed by the character of evidence relied upon by the
Government. Cf. Perkins v. Elg, 307 U.S. 325, 83 L.Ed. 1320 (1939).
The great weight of authority is that evidence that the act was
committed intentionally with notice of the consequences must be clear,
unequivocal, and convincing, (MacKenzie v. Hare, 329 U.S. 311;
Savorgnan v. U.S., 338 U.S. 491; Furusho v. Acheson, 94 F.Supp. 1021,
U.S.D.C. Hawaii, January 1951; Ouve v. Acheson, D.C. Hawaii, 91 F.
Supp. 129 and cases cited therein.) We have held in a case closely
paralleling the case before us that since section 401(d) of the
Nationality Act operates to terminate citizenship, its terms should be
narrowly construed, especially in cases wherein there was no attempted
expatriation as in this one, (Matter of S P , 56156/765, 2, I. & N.
Dec. 57, B.I.A. March 11, 1944).
An unsupported ex parte statement, not under oath, made approximately
5 years subsequent to the issue of the certificate of loss of
nationality to the vice consul at Rome by one purported to be the
superintendent of schools for a province in Italy, in my judgment does
not meet the tests referred to above. It is hearsay in its worst form.
There is no showing by the Government that an Italian law was in
force, during the period that respondent taught school, which provided
that only a subject of Italy was eligible to be a public schoolteacher.
A Federal court has commented that it would be incumbent upon the
Government to make such a showing when citizenship is questioned under
section 401(d) of the Nationality Act, (Furusho v. Acheson (supra)). I
think the respondent's testimony under oath that the superintendent of
schools "was under the allied forces,' supported as it is by documentary
evidence which reads in part, "whereas your office (military government)
has authorized the reopening of the elementary schools of the city of
Gildone,' does controvert the facts stated both in the certificate of
loss of nationality and the document issued approximately 5 years later
to support the certificate. In my opinion, this type of evidence is
entitled to far more weight than the unsupported ex parte hearsay
statement relied upon by the Government.
The majority concedes that the issue is somewhat close on the
question of whether Italy was a "foreign state' under military
occupation as that term is used in the statute. They rely on two
district court cases /2/ one of which, the Gyeno case (supra), presents
conflict of opinion within the same district. /3/ There is no question
that Italy is "foreign' to the United States in the sense that it is
opposed to the meaning of the word "domestic,' which includes
territories of the United States. The controversial issue with which we
are here concerned is whether Italy was a "state' during May and June of
1944 while the respondent taught there. Judge Hall in the Kunivuki case
(supra), relying on a former opinion of his /4/ and two Supreme Court
cases, /5/ defines a state as follows: "A state comprehends a body of
people living in a territory, who are not subject to any external rule,
but who have the power within themselves to have any form of government
which they choose and have the power to deal with other states.' In
other words, the first essential in a state is sovereignty. Judge
Yankwich in the Gyeno case (supra), makes no mention of the opinion of
his colleague of the same district, but states that he disagrees with
cases outside of his own district, namely, the Arikawa and Furusho cases
(supra). He admits that an occupation by force of arms might
effectively destroy the sovereignty of a foreign state, but
distinguishes our occupation of Japan by saying that it was a "mild type
of occupation' wherein "the Emperor of Japan was allowed to remain as
the titular head of the state' (p. 516, Gyeno opinion).
The circumstances surrounding the occupation of Italy, in my
judgement, do not meet the qualifications set forth by Judge Yankwich.
During the period the respondent taught, her province had been conquered
and was then occupied by an enemy army. The remainder of Italy, as we
so well know, was under the domination of the Germans. These are
historical facts of sufficient moment to warrant judicial notice and are
opposed to conditions which existed in the past and are still subsisting
with regard to the sovereignty of Italy. To say, as does the majority,
that the respondent must submit affirmative evidence of the
nonsovereignty of Italy during the crucial period simply begs a question
wherein there are two opposing views as yet undecided by an appellate
court.
The Supreme Court in a frequently cited case /6/ has stated the rule
that a determination by immigration authorities regarding the
citizenship of a native-born "must be after a hearing in good faith and
it must find adequate support in the evidence.' The evidence relied upon
by the majority in this case, in my judgment, is not adequate to support
a finding of expatriation. Accordingly, I find that the respondent has
overcome the presumption of expatriation arising from the facts stated
in the certificate of loss of nationality and the ex parte statement
supporting it and that the Government has not met the burden of proving
alienage.
(1) Sec. 402 provides that a national of the United States who was
born in the United States "shall be presumed to have expatriated himself
under subsecs. (c) or (d) of sec. 401 when he shall remain for 6 months
or longer within any foreign state of which he or either of his parents
shall have been a national according to the laws of such foreign state'
(8 U.S.C. 802).
(2) Kuwahara v. Acheson, 96 F.Supp. 38 (U.S.D.C., S.D. Calif., C.D.,
March 5, 1951); Gyeno v. Acheson, 96 F.Supp. 510 (U.S.D.C., W.D.
Wash., N.D., March 23, 1951).
(3) Kuniyuki v. Acheson, 94 F.Supp. 358, an opinion by Judge Hall of
the U.S. District Court, Western District of Washington, Northern
Division, dated August 24, 1950, holds that occupied Japan, during the
elections of 1946 and 1947, was not a "foreign state' within the statute
providing for loss of nationality (sec. 401 of the Nationality Act of
1940). Judge Yankwich, of the same district, in a case with similar
facts holds that Japan is a "foreign state' within the meaning of the
statute, (Gyeno v. Acheson, 96 F.Supp. 510, March 23, 1951.)
(4) U.S. v. Kusche, D.C. Wash., 56 F.Supp. 201.
(5) Jones v. U.S., 137 U.S., 202, 34 L.Ed. 691; Oetjen v. Central
Leather Co., 246 U.S. 297, 62 L.Ed. 726.
(6) Kwock Jan Fat v. White, 253 U.S. 454, 458, 64 L.Ed. 1010, 1012,
June 1920.
Subversive -- Excludability as participant in movement hostile to United States -- Italian Fascist Party -- Section 13, act of June 25, 1948, as amended -- "Voluntary' participation -- 8 C.F.R., appendix, section 702.8(g) -- Excludability as member of totalitarian party of foreign state -- Italian Fascist Party -- Section 1(2)(C), act of October 16, 1918, as amended -- Burden of proof -- Evidence.
A member of the Fascist Party in Italy from 1927 to 1943 who testified that (1) he was a member thereof as a result of automatic (not volitional) entrollment in connection with his employment as a city hall clerk; (2) he could not have retained such employment unless he were a member of such party; and (3), he was never active in the affairs of such party, was found to have established his admissibility to the United States, in the absence of contrary evidence in the record, because his membership therein was "involuntary' within the meaning of the act of 1918, as amended and pertinent regulations thereunder, and section 13 of the act of June 25, 1948, as amended and 8 C.F.R. appendix, section 702.8(g).
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Section 13 -- Act of June 25, 1948, as amended -- Participated in a movement which has been hostile to the United States (male alien).
Section 10 -- Act of June 25, 1948, as amended -- Not an eligible displaced person (both aliens).
Lodged: Section 1(2)(C), act of October 16, 1918, as amended -- As a
former member of a totalitarian party of a foreign state (male alien).
Discussion: This appeal concerns two aliens, man and wife, 50 and 43
years of age respectively, both stateless, natives of the region known
as Venezia Giulia, formerly under Italian sovereignty, now part of
Yugoslavia. They applied for admission to the United States for
permanent residence in accordance with the Displaced Persons Act of
1948, as amended. A hearing was had before a board of special inquiry
of the Immigration and Naturalization Service at Bagnoli, Italy, on
April 28, 1951, and were found to be inadmissible to the United States
by said board on the respective grounds set forth above (except as to
the male alien the charge under sec. 1(2)(C), act of October 16, 1918,
as amended, which was lodged later when the matter was on appeal before
the Acting Assistant Commissioner, Adjudications Division, Immigration
and Naturalization Service). On appeal, the Acting Assistant
Commissioner, Adjudications Division, Immigration and Naturalization
Service, affirmed the exclusion decision of said board of special
inquiry on the grounds set forth above. The Acting Assistant
Commissioner lodged an additional ground of inadmissibility against the
male alien, the charge as set forth above.
The Acting Assistant Commissioner sums up the evidence adduced before
the board of special inquiry in this language:
Inasmuch as the male appellant has testified that he was
enrolled with the Fascist Party, that he paid annual dues to the
organization, and that he was issued a card showing that he
belonged to the Fascist Party, the conclusion is reached that he
was, in fact, a member of the Fascist Party from 1927 to 1943.
The male appellant gave this further testimony. He was
enrolled with the Fascist Party commencing in 1927 when he was
employed as a clerk in the municipal hall of his home town in
Venezia Giulia. His membership was automatic. "As soon as you
received employment you were enscribed with the Fascist Party.'
From 1930 until 1946 he was employed by the Society of Trezza, a
private company which collected taxes for the Commune on a
percentage basis. As to his employment with the Society of
Trezza, he stated. "Before hiring the people, they had to have a
Fascist card. Otherwise, they would not get a job.' Also, "If you
were not enscribed with the party, they fired you right away.'
However, he did not believe in the principles of the Fascist Party
and during the years only attended a few party meetings, which
were obligatory.
and concludes as follows:
Section 702.8, appendix 8 C.F.R., which interprets section 13
of the Displaced Persons Act of 1948, as amended, provides in
pertinent detail:
No person shall be eligible to receive the benefits of the act,
who
(a) Is or has ever been a member of the Communist, Nazi or
Fascist Parties, or of a political or subversive group of an
ideological character similar to that of the aforementioned
Parties;
(g) The terms "member of' or "participated in' where used in
paragraphs (a) and (d) of this section include only membership or
participation which is or was voluntary, and shall not include
membership or participation which is or was solely (1) when under
16 years of age, (2) by operation of law, or (3) for purposes of
obtaining employment, food rations, or other essentials of living,
and where necessary for such purposes * * *
It is the view the Service that membership in an organization such as
the Fascist Party should be regarded prima facie to have been voluntary
and that the burden, in such cases, should be upon the alien to prove by
clear and convincing evidence that his membership in such party is or
was involuntary. In the instant case, we have only the male alien's
testimony to the effect that his membership in the Fascist Party during
a period of 16 years was not of his volition. He has made the claim
that he was automatically enrolled in the Fascist Party in 1927 in
connection with his employment as a clerk for the town hall. He has also
claimed that he could not have been employed by the Society of Trezza
unless he were a member of the party. There is no substantiation of
these statements. He has not shown, other than by his own word, that
membership in the Fascist Party was necessary for the purposes of his
employment during the period commencing in 1927 and ending in 1943. It
is believed that the appellant's testimony, by itself, does not meet the
test of "clear and convincing evidence' upon which it would be
permissible to base a finding that his membership in the Fascist Party
was involuntary within the meaning of section 702.8( g), 8 C.F.R.
appendix. Accordingly, the ground of excludability urged by the board
of special inquiry under section 13 of the Displaced Persons Act of
1948, as amended, is sustained.
We agree that the burden of establishing admissibility to the United
States is upon the aliens. The male alien's testimony is to the effect
that any membership or affiliation with the Fascist Party, or a branch
thereof, arose as a matter of course in connection with his employment,
and necessary to retain such employment. He was a clerk in the city
hall of his town in Venezia Giulia, and his duties were to record
marriages, births, and deaths; that a year later in 1928, and for 15
years thereafter he was engaged in the collection of taxes for the
Italian Government. He testified that he was "enscribed' in the Fascist
Party, and that this was a requirement to retain his employment. His
testimony is further to the effect that he was never active in the
affairs of the party.
The record presents no contrary evidence. It is now more or less
accepted that involuntary membership or affiliation in an organization
such as the Fascist Party, without more, falls within the exception to
the pertinent class of cases covered by the act of October 16, 1918, as
amended by the Internal Security Act of 1950 and regulations promulgated
pursuant thereto.
The record appears to establish clearly that the charges against the
male alien; namely, that he participated in a movement which has been
hostile to the United States and as a former member of a totalitarian
party of a foreign state, are unsupported. Hence, the remaining charge
against both aliens; namely, not eligible displaced persons,
automatically falls.
Order: It is ordered that the appeal as to both aliens be sustained
and that they be admitted to the United States for permanent residence
upon presentation of proper documents.
Editor's note. -- A similar conclusion was reached in unreported
Matter of S , A-8021649, A-8021650, B.I.A., October 19, 1951. The male
alien testified he was a member of the Fascist Party of Italy from 1932
until the end of 1943, that he did not join voluntarily; that he was
working with an agricultural union and an order was issued for all
members thereof to join the party; that he became a member only because
it was necessary to retain his job; that dues were deducted from his
wages each month; that he did not attend meetings for members of the
party; and that he was not interested in the principles of the
organization. The B.I.A. cited its decision in the above Int. Dec.
#315 and said, "Therein we held that the evidence established that
membership in the Fascist Party was involuntary and that such membership
and affiliation was passive and compulsory for the purpose of retaining
employment * * *.'
Crime involving moral turpitude -- Assault and battery with dangerous weapon -- Chapter 265, section 15A of the Annotated Laws of Massachusetts -- Armed Robbery -- Chapter 277, section 37 and chapter 265, section 17 of Annotated Laws of Massachusetts -- Attempt to escape from reformatory -- Chapter 268, section 16 of Annotated Laws of Massachusetts -- "Malum prohibitium.'
(1) Assault and battery with a dangerous weapon in violation of the above Massachusetts statute involves moral turpitude not only in view of the definition of "dangerous weapon' by the Massachusetts courts but also on the basis of the conviction for an offense involving evil intent as shown by the use of the dangerous weapon involved. (See 2, I. & N. Dec. p. XIII, IV.)
(2) Armed robbery in violation of the above Massachusetts statute involves moral turpitude.
(3) Attempt to escape from reformatory in violation of the above Massachusetts statute is "malum prohibitum'; it does not involve moral turpitude, it being noted that "escape' is not defined by statute and the wording of the statute does not require a specific criminal intent. (See 2, I. & N. Dec. 873.)
CHARGES:
Warrant: Act of 1917 -- Sentenced more than once, to wit: Assault
and battery by means of dangerous weapon; attempt to escape from
reformatory; armed robbery.
Discussion: This case is before us on appeal from a decision of the
Acting Assistant Commissioner dated April 13, 1951, directing
respondent's deportation.
Respondent, a 38-year-old native and citizen of Canada of the Scotch
race, last entered the United States at Vanceboro, Maine, on September
28, 1928. At that time, he was admitted for permanent residence.
Respondent married a United States citizen on June 15, 1944, from whom
he was divorced in September 1945. They have a young child about 6
years old.
A warrant of arrest in deportation was issued on January 25, 1949,
charging that respondent was deportable as an alien convicted and
imprisoned more than once for crimes involving moral turpitude (sec.
19(a), act of 1917). Respondent contends that the crimes, discussed
below, do not serve to sustain the charge.
On May 5, 1938, respondent was convicted in Superior Court, Middlesex
County, Mass., on a plea of guilty of attempting to escape from the
Massachusetts reformatory in Concord. Respondent was sentenced to
Massachusetts State prison for 8 to 10 years at hard labor with 1 day of
solitary confinement, the sentence to take effect notwithstanding the
sentence he was then serving in the Massachusetts reformatory.
The offense was committed on April 23, 1938. According to the
indictment, respondent, in furtherance of an attempt to escape on the
part of three prisoners, "did assault and overpower a guard stationed
(in the hospital building) and did file and cut a steel bar on a window,
but was intercepted and prevented in the execution of the attempted
offense.'
The offense in question is defined in chapter 268, section 16 of the
Annotated Laws of Massachusetts in the following manner:
Penalty for Escapes or Attempted Escapes from Penal
Institutions. -- A prisoner who escapes or attempts to escape from
any penal institution, or from land appurtenant thereto, or from
the custody of any officer thereof or while being conveyed to or
from any such institution, may be pursued and recaptured and shall
be punished by imprisonment in the institution to which he was
originally sentenced or committed, for a term not exceeding five
years. If the prisoner has escaped or attempted to escape from
the institution to which he is sentenced and the expense of
committing him shall be paid by the prison camp and hospital. In
imposing sentence under this section the court shall observe the
provisions of law regarding sentences and commitments to the
various penal institutions (1805, 113, 119, 10; 1925, 53).
The statute before us serves to direct the duly constituted State
authorities in the pursuit and recapture of prisoners who leave or
attempt to leave confinement without permission. "Escape' is not
defined in terms of intent and, by wording of the statute, a specific
criminal intent is not required.
Since the crime defined in chapter 268, section 16, is merely malum
in prohibitum, and because moral turpitude inheres in the evil intent,
it is concluded that this offense does not involve moral turpitude,
(Commonwealth v. Mixer, 207 Mass. 141, 93 N.E. 249 (1910)). /1/
On May 5, 1938, respondent was convicted on a plea of guilty in
Superior Court, Middlesex County, Mass., of assault and battery with a
dangerous weapon. This offense was committed on April 23, 1938, and
occurred during the escape attempt discussed above.
The crime of assault with a dangerous weapon in Massachusetts is
defined in chapter 265, section 15A of the Annotated Laws of
Massachusetts as follows:
Assault and Battery with Dangerous Weapon. -- Whoever commits
assault and battery upon another by means of a dangerous weapon
shall be punished by imprisonment in the state prison for not more
than 10 years or by a fine of not more than $1,000 or imprisonment
in jail for not more than 2 1/2 years (1927, 187, 1).
Simple assault has generally been held as not necessarily involving
moral turpitude, for it may be committed without the evil intent or
depraved motive associated with moral turpitude. /2/ For similar
reasons, aggravated assault where the use of a deadly or dangerous
weapon is not an element is not regarded as involving moral turpitude,
(U.S. ex rel. Zaffarano v. Corsi, 63 F.(2d) 757 (C.C.A. 2, 1933); U.S.
ex rel. Griffe v. McCandless, 28 F.(2d) 287 (E.D., Pa., 1928); U.S. ex
rel. Morlacci v. Smith, 8 F.(2d) 663 (W.D., N.Y., 1925); Ciambelli ex
rel. Maranci v. Johnson, 12 F.(2d) 465 (D. Mass., 1926)). Conversely,
assaults with intent to murder (Clark v. Orabona, 59 F.(2d) 187 (E.D.,
Pa., 1930)), to kill (U.S. ex rel. Rizzio v. Kenney, 50 F.(2d) 418 (N.
D. Conn., 1931)) have been held to indicate the base motive which is
requisite for moral turpitude.
In order for a statutory crime to involve moral turpitude, a specific
intent must accompany the act, in addition to the fact that the act,
made criminal, must be intrinsically wrong, (Weedin v. Yamada, 4 F.(2d)
455 (C.C.A. 9, 1925); Tillinghast v. Edmead, 31 F.(2d) 81 (C. C.A. 1,
1929); Coykendall v. Skrmetta, 22 F.(2d) 120 (C.C.A. 5, 1927)).
Assault with a dangerous or deadly weapon has repeatedly been held to be
a crime involving moral turpitude, (Matter of R , 1, I. & N. Dec. 209
(56050/167, B.I.A. 1942); Matter of K , A-3959971 (56138/221, B.I.A.,
November 12, 1943) (unreported); Matter of N , 2, I. & N. Dec. 201
(56170/750, now A-1779952, B.I.A., 1944); Matter of G R , 2, I. & N.
Dec. 733 (A-4569802, A.G., 1947); Matter of P , A-6386124 (A.G.,
September 11, 1947) (3, I. & N. Dec. 5); Matter of O , A-5912688 (B.I.
A., March 29, 1948) (3, I. & N. Dec. 193)).
The Massachusetts courts have defined a dangerous weapon as:
any instrument or instrumentality so constructed or so used as
to be likely to produce death or great bodily harm; or an
instrument or instrumentality which, because of the manner in
which it is used, or attempted to be used, endangers life or
inflicts great bodily harm; or is likely to produce death or
serious bodily injury. An instrument and instrumentality most
innocent appearing and harmless in and of itself may be used in
such a dangerous and harmful manner that it causes serious bodily
injury because of such manner of use. (Commonwealth v. Farrell,
322 Mass. 606, 78 N.E.(2d) 697 (1948); see also Commonwealth v.
Wolansky, 316 Mass. 621, 55 N.E.(2d) 902 (1944). $It would,
therefore, seem that, not only in view of the above definition of
a dangerous weapon, but also on the basis of the conviction in the
superior court of Massachusetts, respondent was sentenced on May
5, 1938, for an offense involving an evil intent, as shown by the
use of the above described dangerous weapon -- a crime involving
moral turpitude, (Matter of N (supra); Matter of DiS , A-4223116
(November 29, 1949) (unreported).
In passing, it will be noted that the statute and conviction involved
in the instant case differ greatly from those passed upon in U.S. ex
rel. Zaffarano v. Corsi, 63 F.(2d) 757 (C.C.A. 2, 1933) and Matter of B
, 1, I. & N. Dec. 52 (56018/361, A.G., 1941). In the former case, it
was not shown that a weapon was in fact used; in the latter case the
weapon was stated as unknown and crime was said to have occurred under
circumstances of extreme provocation. In addition, it is felt that the
reasoning used in several prior cases, involving a conviction for
aggravated assault by inflicting bodily injury or asault with intent to
commit a minor infraction and held not to be crimes involving moral
turpitude, has been repudiated at least by inference in Matter of G R
(supra); Matter of A , A-5247648 (July 8, 1947) (Int. Dec. #83);
Matter of P (supra); Matter of O (supra).
On January 10, 1946, respondent was convicted in Superior Court,
Suffolk County, Mass., on a plea of guilty of armed robbery (five cases,
committed on June 26, 1945, June 30, 1945, and July 24, 1945). He was
sentenced to serve concurrent sentences for each offense of 10 to 11
years; he served slightly longer than 5 years' time.
The crime of armed robbery is defined in chapter 277, section 37 and
chapter 265, section 17 of the Annotated Laws of Massachusetts as
follows:
Section 37, definition of Robbery. -- The taking and carrying
away of personal property of another from his person and against
his will, by force and violence, or by assault and putting in
fear, with intent to steal.
Section 17. Punishment of Robbery in Certain Cases. -- Whoever,
being armed with a dangerous weapon, assaults another and robs,
steals, or takes from his person money or other property which may
be the subject of larceny shall be punished by imprisonment in the
state prison for life or for any term of years. (1943, 250, 1,
effective Oct. 1, 1943).
In order for a statutory crime to involve moral turpitude, a specific
intent must accompany the act, (Weedin v. Yamada, 4 F.(2d) 455 (C.C.A.
9, 1925)). The common-law definition of robbery was incorporated almost
literally into the above Massachusetts robbery statutes. Since a
specific intent is an essential of the crime of robbery, an averment
worded in the less technical terminology of "stealing' does in fact
supply the specific intent to commit larceny necessary. Cf. Matter of M
, A-3035192 (October 7, 1949) (unreported).
Acts which were always malum in se, such as larceny or "stealing,'
naturally fall within the definition of offenses involving moral
turpitude, (Bartos v. U.S. Dist. Ct., 19 F.(2d) 722 (C.C.A. 8, 1927);
Ng Sui King v. United States, 46 F.(2d) 755 (C.C.A. 7, 1931)). Hence,
since, moral turpitude inheres in such criminal intent, as is required
by the words of the statute, we conclude that a conviction for armed
robbery under chapter 265, section 19 was a conviction for a crime
involving moral turpitude. (See footnote 1.)
Therefore, in view of the interpretation placed on section 19(a) of
the act of 1917 /3/ by the United States Supreme Court in Fong Haw Ten
v. Phelan, 333 U.S. 6 (1948), it is concluded that respondent is
deportable as an alien who has been sentenced more than once for crimes
involving moral turpitude.
The appeal is accordingly dismissed.
Order: It is ordered that the appeal be dismissed.
(1) 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).
(2) In such cases as Matter of R , 56053/152 (B.I.A., October 13,
1942) (unreported); Matter of E , 1, I. & N. Dec. 505 (56065/307, B.I.
A., 1943); and Matter of M , 56156/116 (B.I.A., May 13, 1944)
(unreported), the crime in question held not to involve moral turpitude,
because the offense was a mere assault not accompanied by aggravated
circumstances.
(3) "* * * except as hereinafter provided, any alien who, after May
1, 1917 * * * is sentenced more than once to such a term of imprisonment
because of conviction in this country of any crime involving moral
turpitude, committed at any time after entry * * * shall, upon the
warrant of the Attorney General, be taken into custody and deported * *
*.'
Editor's note. -- Because the weapon was unknown, the information or
violation of sec. 10098, Mason's Minnesota Statutes (1927) was held not
necessarily to state a crime involving moral turpitude (1, I. & N. Dec.
52, Assault, 2d degree). But when the dangerous weapon (a knife)
appeared in a charge for violation of this Minnesota statute, it was
held that the offense charged did state a crime involving moral
turpitude. (Unreported Matter of M , A-1322196, B.I.A. October 3,
1951.) Also, violations of sec. 11056 of the Revised Laws of Hawaii
(assault with knife, sword, cane, or any other weapon obviously and
imminently dangerous to life) were held offenses involving moral
turpitude. (Unreported Matter of M , A-5414879, B.I.A., July 18, 1951).
Crime involving moral turpitude -- False statements to evade service and induction -- Section 11, Selective Training and Service Act of 1940 (50 U.S.C. 311).
The falsification of a Selective Service questionnaire for the purpose of evading military service, in violation of section 11, Selective Training and Service Act of 1940 (50 U.S.C. 311) is an offense involving moral turpitude.
CHARGE:
Warrant: Act of 1917 -- Crime within 5 years, to wit: Violation of section 11, Selective Training and Service Act of 1940, false statements
Lodged: Act of 1917 -- Convicted of crime prior to entry, to wit:
Violation of Section 11, Selective Training and Service Act of 1940,
false statements
Discussion: The record relates to a native of China, who claims to
be presently stateless and who last entered the United States at
Detroit, Mich., on November 11, 1946.
Respondent was convicted in the United States District Court at San
Francisco, Calif., on September 10, 1942, on two counts of violation of
section 11 of the Selective Training and Service Act of 1940, the first
count of which was failure to return questionnaire and the second of
which was falsification of the Selective Service question-naire. This
second group forms the basis of the charges mentioned above. He was
sentenced on each count for a period of 1 year and 1 day, the sentences
to run concurrently.
It has been held that the falsification of a Selective Service
questionnaire for purpose of evading service and induction into the
Armed Forces of the United States is an offense involving moral
turpitude, (Matter of M , 1, I. & N. Dec. 619 (B.I.A., 1943)). Counsel
for respondent contends that the falsification involved was not for the
purpose of evading service and induction into the Armed Forces of the
United States and refers to evidence given at the trial. It is well
established that in considering whether or not an offense involves moral
turpitude, it is not permissible to consider the circumstances under
which the crime was committed. The inquiry is limited to the inherent
nature of the crimes defined by the statute and established by the
record of conviction. The record of conviction means the charge
(indictment) plea, verdict, and sentence, (U.S. ex rel. Zaffarano v.
Corsi, 63 F.(2d) 757 (C.C.A. 2, 1933)). The second count of the
indictment discloses that respondent was charged with "wilfully,
knowingly, and feloniously make, and cause to be made, a false statement
in the Selective Service questionnaire to Local Board No. 98, the
Selective Board with which he was registered, concerning his liability
or nonliability for service under the provisions of the Selective
Training and Service Act of 1940 and the rules and regulations made
pursuant thereto.' The particular provision of section 11 of the
Selective Training and Service Act of 1940 which respondent violated as
set forth in the second count provides that a violation occurs when "any
person who shall knowingly make, or be a party to the making of, any
false statement or certificate as to the fitness or unfitness or
liability or nonliability of himself or any other person for service
under the provisions of this act, or rules, regulations, or directions
made pursuant thereto.' The record establishes that respondent was
convicted on the second count and was sentenced to a year and a day.
Consequently in considering the statute and the record of conviction, it
must necessarily be concluded that the falsification in the Selective
Service questionnaire made by respondent was done for the purpose of
evading service and induction into the Armed Forces of the United
States. Consequently respondent's case comes squarely within the
decision of the Matter of M , mentioned above and therefore the offense
involves moral turpitude.
Upon consideration of the entire record, including the exceptions
taken, the recommended order of the officer conducting the hearing is
hereby adopted.
In respect to the application for a stay of deportation pending
completion of the application for presidential pardon submitted by
respondent, deportation will be stayed pending the outcome of such
pardon application, inasmuch as the obtaining of a pardon will affect
the question of respondent's deportability.
Order: It is ordered that the alien be deported from the United
States, pursuant to law, on the lodged charge only.
It is further ordered that deportation be stayed for 30 days from the
date hereof, further extensions, if any, to be authorized in the
discretion of the officer in charge pursuant to outstanding
instructions.
Upon consideration of the entire record: It is ordered that the
appeal from the decision of the Commissioner be and the same is hereby
dismissed.
Subversive proscribed organization, member or affiliate of -- Exclusion ground -- Act of 1918, as amended -- "Voluntary' membership or affiliation -- Public Law 14 (March 28, 1951) -- Evidence.
While it is essential that the member be cognizant of the kind of organization he has joined, in order for membership in the organization to be considered "voluntary,' the evidence in this case does not support the assertion that she was "never consciously a member of any group that had for its object the overthrow of the Government by force,' but rather justifies a finding that her membership or affiliation (which she admits) was knowingly created by her act of joining or affiliating upon her own volition and that she was necessarily aware of the objectives of the Young Communist League (Canada) during her 7 months' membership. (4, I. & N. Dec. 341, was distinguished as to certain factors, and the difference as to burden of proof in that expulsion case was noted also.)
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1918, as amended --Member of of a section, subsidiary, branch,
affiliate, or subdivision of the Communist Party of a foreign state.
Discussion: This is an appeal from an order entered by the Assistant
Commissioner on June 11, 1951, affirming the appellant's exclusion on
the above-stated grounds. Counsel excepts to the order, urging (1) that
as a matter of law actual membership in a prescribed organization is not
established by the evidence of record; and (2) assuming an affirmative
finding of membership, then the evidence establishes that it was
involuntary and therefore within the exceptions provided under the act
of March 28, 1951 (Public Law 14 (S. 728), amending the act of 1918, as
amended).
The facts of the case are fully stated in the opinions below.
Briefly they relate to a native and citizen of Canada, 32 years of age,
who applied for admission into the United States as a temporary visitor
at the port of Detroit, Mich., on October 16, 1949. If found
admissible, the appellant may at some later date apply for admission for
permanent residence. She is married to a citizen of the United States,
an employee of the Post Office Department, who resides at Detroit, Mich.
They have been married since November 25, 1944. The Assistant
Commissioner finds that the appellant has not proved by clear and
convincing evidence that her membership in the Young Communist League
was involuntary and, therefore, notwithstanding the provisions of the
act of March 28, 1951 (Public Law 14, supra), she is inadmissible to the
United States under the act of October 16, 1918, as amended by the
Internal Security Act of 1950. This appeal follows.
Counsel in support of the points referred to above inter alia cites
recent opinions both by this Board and the Federal courts. /1/ We have
carefully reviewed the authorities relied upon by counsel. We find the
Reimer case (supra), not applicable because it was decided prior to the
amendment of the 1918 act by the act of June 28, 1940 (54 Stat. 673),
and the Internal Security Act of 1950. Further, the action arose in a
deportation proceeding and the burden was upon the Government to prove
affiliation. Here the appellant seeks to enter the United States. The
burden is upon her to prove admissibility.
The Supreme Court, in the Garner case (supra), reviewed a judgment by
the District Court of Appeals for California affirming an order of the
Superior Court of Los Angeles County which denied relief to municipal
employees discharged from service for failure to take a loyalty oath
and/or execute a loyalty affidavit. Constitutional objections were
raised by the discharged plaintiffs. The Supreme Court in a 5 to 2
opinion by Justice Clark held that neither the affidavit nor the loyalty
oath requirements violated the provisions of article I, section 10 of
the Federal Constitution against bill of attainders and ex post facto
laws. A due process objection derived from the fact that the oath was
not limited to affiliations known to the employee to be in the
prescribed class was rejected. None of the issues there presented is
involved in the proceeding before us.
We agree with counsel that the N case (supra), is factually similar
in some respects to the case now before us. However, that case also
arose in deportation proceedings and the burden was upon the Government
to prove voluntary membership or affiliation. We are of the opinion,
nevertheless, that certain factors prevalent in the N case readily
distinguish it from the case before us regardless of the fact that the
burden of proof lay with the Government. These distinguishing factors
will be considered hereinafter.
The appellant herein has the burden of proving that she is admissible
to the United States. She admits that she was refused a visa for
permanent residence in the United States by the consul at Montreal on or
about November 1, 1944, for the reason that she had been a member of a
proscribed organization. Exhibit 1 is an affidavit executed under oath
by the appellant at Montreal, Canada, on December 12, 1944. That
portion of the affidavit pertinent to the issue here involved reads as
follows:
(7) That it is true that about 5 years ago, when I was about 20
years of age, I was introduced into a society in Montreal called
the Young Communist League.
(8) That I was a member of this league for less than a year,
having been introduced into it by a young man I was keeping
company with at the time.
(9) That I was first taken by this young man to the socials
given by this group, and at the time did not even know what its
objects were.
(10) That my entry into this group was of so little importance
to me that when I was examined by the American immigration
authorities I declared what I believed to be true, to wit: That I
was never consciously a member of any group that had for its
object the overthrow of the government by force.
(11) That I have never believed in such theory, nor do I now.
*******
The gist of appellant's recent testimony before a board of special
inquiry is that she never applied for membership; never received a
membership card; was never "consciously' a member of the Young
Communist League; and that she thought the organization was purely
social. We find it difficult to reconcile appellant's recent testimony
with that given before a board of special inquiry on March 23, 1945,
when she was an applicant on a prior occasion. For example, she
testified that she attended meetings of the group for "about 7 months or
so'; that the meetings were held in secret; that when she went to the
meetings "I must have paid dues if they asked me to,' that at their
meetings they did preach that the Government of Canada was not the
proper government and that they should form a new government; and that
the reason why she stopped attending the meetings was "I could not see
eye to eye to some of their ideas, they were against the war and I being
a Canadian felt I should support the war.'
Here we are asked to believe that a young woman 20 years of age was
not consciously a member of a proscribed organization; yet we have
before us an affidavit in which she admits she was a member of the Young
Communist League though "never consciously a member of any group that
had for its object the overthrow of the government by force.' On the
other hand, within 4 months of executing the affidavit she testified
that she attended secret meetings of the Young Communist League for 7
months; that she must have paid dues; and that she withdrew when it
became apparent to her than she was not in accord with the ideology
expressed at the meetings. She testified on November 7, 1949, that in
all she attended "about 5 or 6' gatherings or meetings.
The N case (supra), contains a stipulation between that respondent,
his counsel, and the examining officer. It reads in part as follows:
(9) That the respondent joined an organization known as the
Workers Party on or about March 1933 and was a member thereof for
approximately 7 weeks until about May 1933.
(10) That at the time of the joining of the said Workers Party
the respondent had no knowledge that said organization was
communistic or was affiliated with or identified with the
Communist Party.
(11) That upon discovery of such facts as led respondent to
believe that said organization was affiliated with the Communist
Party, respondent immediately ceased his relationship with said
Workers Party.
(12) That respondent never attended any meeting of the
organization known as the Workers Party nor ever took part in any
of its activities.
(13) That the Workers Party herein referred to as having been
joined by the respondent is admitted to have been the Communist
Party.
Supporting the stipulation referred to above, N and a witness, N B ,
testified that they entered the said Workers Party during a strike,
thinking that it was a labor union, that there were three meetings
during the strike; that they were meetings which were attempts to
organize a union; and that an independent union did come out of the
strike and is still in existence in the plant in question. N further
testified that he never received any membership card, dues book, or
Communist literature. We found that the facts in the case supported N
's stipulation. It is apparent that the facts in the case before us do
not support the appellant's affidavit executed on December 12, 1944.
Following the hearings before the Board of Special Inquiry on January
10, 1951, the Congress amended the Internal Security Act of 1950 by the
act of March 28, 1951 (Public Law 14). Section 1 of the act of March
28, 1951, provides "that the Attorney General is hereby authorized and
directed to provide by regulations that the terms "members of' and
"affiliated with' where used in the amended act of October 16, 1918,
shall include only membership or affiliation which is or was voluntary.'
Instructions governing the application of the amended act were
prepared jointly by the Immigration and Naturalization Service, the
Department of State and the Displaced Persons Commission. These
instructions were issued on March 28, 1951. In part they provide as
follows:
The term "voluntary' when used in relation to membership in, or
affiliation with, a proscribed party or organization, shall be
construed to mean membership or affiliation which is or was
knowingly created by the alien's act of joining or affiliating,
upon his own volition, with such proscribed party or organization.
In order for membership in any organization to be considered
voluntary, it is essential that the member be cognizant of the kind of
organization he has joined. The appellant's testimony on March 23,
1945, in our opinion, does not support that portion of her affidavit in
which she attests that she was "never consciously a member of any group
that had for its object the overthrow of the government by force.' We
find that her membership or affiliation, which she admits, was knowingly
created by her act of joining or affiliating upon her own volition and
that she was necessarily aware of the objective of the Young Communist
League during her 7 months' membership. The appeal will be dismissed.
Order: It is ordered that the appeal be and the same is hereby
dismissed.
(1) Matter of N , A-1406381 (B.I.A. April 13, 1951) (4, I. & N. Dec.
341); Kettunen v. Reimer, 79 F.(2d) 315, (C.C.A. 2, August 5, 1935);
Garner v. Board of Public Works, City of Los Angeles, 95 L.Ed. 854, 341
U.S. 716 (June 4, 1951).
"Neutrial alien' -- when filing of claim to exemption from military service held not to render alien ineligible for naturalization -- Section 3(a) of the Selective Training and Service Act of 1940, as amended -- Moser v. United States, 341 U.S. 41.
Under the ruling of the Supreme Court in Moser v. United States (341 U.S. 41, 71 S.Ct. 553, April 9, 1951), it must be held in the instant case (which presents the exact factual situation as the Moser case on this issue) that this Swiss national's ("neutral alien') filing of DSS Form 301, revised, claiming exemption from military service, did not render this alien ineligible to citizenship in the United States under the provisions of section 3(a) of the Selective Training and Service Act of 1940, as amended, for he did not knowingly and intentionally waive his rights to citizenship under the circumstances.
CHARGE:
Warrant: Act of 1924 -- Remained longer -- visitor.
Discussion: The case comes forward on motion of the alien's
representative requesting that we reconsider the outstanding deportation
order in the case.
Discussion as to Deportability: The record relates to a native and
citizen of Switzerland, 35 years old, male, who last entered the United
States at the port of New York on April 20, 1939, ex-S.S. Queen Mary and
was admitted as a temporary visitor for a period not to exceed 30 days
after termination of employment at the New York World's Fair. The last
extension of temporary stay expired March 1, 1942, but the alien has
continued to reside in the United States. It is concluded he is subject
to deportation under the Immigration Act of 1924, on the charge stated
in the warrant of arrest.
Discussion as to Eligibility for Suspension of Deportation: On June
1, 1943, the alien married a naturalized citizen of the United States.
They have two minor children, native-born citizens of the United States.
The wife and children are wholly dependent upon the alien for support.
He is employed as a sausage maker at a salary of about $100 a week.
Assets total approximately $10,700. It is clear that the alien's
deportation would result in a serious economic detriment to his citizen
wife and two minor children.
A check of the appropriate local and Federal records has failed to
reveal any arrest or criminal record. Inquiry has disclosed that he has
no connection with subversive groups. Witnesses have been produced to
establish that he has been a person of good moral character for more
than 5 years past, and that an independent character investigation is
entirely favorable.
In connection with the registration under the Selective Training and
Service Act of 1940, the alien made inquiry of the Legation of
Switzerland and on July 7, 1943, received a letter from the Swiss
Legation advising him 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 (11 Stat.
587), the Legation had requested the Department of State on December 7,
1942, to exempt him from liability for personal military service with
the United States Armed Forces. The Legation forwarded to him two
copies of DSS Form 301, revised, for execution and filing with his local
draft board to complete the exemption procedure. The Legation further
advised that through filing of this DSS Form 301, revised, he would not
waive his right to apply for American citizenship papers.
When the case was previously considered, it was held that the filing
of the claim to exemption debarred the alien from becoming a citizen of
the United States under the provisions of section 3(a) of the Selective
Training and Service Act of 1940, as amended (55 Stat. 845; 50 U.S.C.,
app. supp. III), and that he was ineligible to citizenship under the
provisions of section 28(c) of the Immigration Act of 1924, as amended
October 29, 1945 (8 U.S.C. 224(c)). However, we are compelled to
reverse our previous holding in this case that the filing of such a
claim to exemption rendered the alien ineligible to citizenship in view
of the decision of the Supreme Court in the case of Moser v. U.S. 95 Law
ed., Adv. Op. No. 10, 457 (S.Ct. Oct. Term, April 9, 1951).
In the cited case the Supreme Court had before it the exact factual
situation present in the instant case. There too the alien filed a
claim of exemption on DSS Form 301, revised, after receiving precisely
the same letter (dated February 18, 1944), from the Swiss Legation, that
the alien in the instant case had received. Dealing with this situation
the court held as follows:
The Legation's emphasis in referring to "Form 301, revised' is
not without significance. The pertinent regulations promulgated
by the President provided that to claim exemption an alien should
file with his local Board Form 301, which became known as DSS 301,
"Application by the Alien for Relief from Military Service.' Above
the signature on this form there appeared the statement, in
obvious reference to the proviso of Section 3(a): "I understand
that the making of this application to be relieved of such
liability will debar me from becoming a citizen of the United
States'. "But shortly after Section 3(a) of the act was amended
to the content with which we here deal, the Swiss Legation had
protested to the Department of State that it was inconsistent with
the treaty rights of Swiss citizens. And the Department had
hastened to assure the Legation that the Government had no
intention of abrogating treaty rights or privileges of Swiss
nationals. The State Department, in conjunction with Selective
Service Headquarters and the Swiss Legation, had then negotiated
agreement upon a revised Form 301 which omitted the waiver quoted
above and stated simply: "I hereby apply for relief from
liability for training and service in the land or naval forces of
the United States.' A footnote of the revised form quoted
pertinent parts of Section 3(a).
It was under these circumstances that petitioner signed a
revised Form 301 on February 26, 1944, and was classified IV-C by
his local Board.
* * * * * * *
But as we have already indicated, before petitioner signed the
application for exemption, he had asserted a right to exemption
without debarrment from citizenship. In response to the claims of
petitioner and others, and in apparent acquiescence, our
Department of State had arranged for a revised procedure in
claiming exemption. The express waiver of citizenship had been
deleted. 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.
* * * * * * *
Petitioner did not knowingly and intentionally waive his rights
to citizenship. In fact, because of the misleading circumstances
of this case, he never had an opportunity to make an intelligent
election between the diametrically opposed courses required as a
matter of strict law. Considering all the circumstances of the
case, we think that to bar petitioner, nothing less than an
intelligent waiver is required by elementary fairness, (Johnson v.
United States, 318 U.S. 189, 197, 87 L.Ed. 704, 711, 63 S.Ct.
549). To hold otherwise would be to entrap petitioner.
The holding in Moser v. U.S. (supra), we deem to be conclusive and
decisive of the question presented in the instant case, and it must,
therefore, be held that the alien is not ineligible to citizenship in
the United States and that, therefore, he is eligible to make
application for suspension of deportation. It may be noted that during
the proceedings the alien testified that had he not been advised by the
Legation of Switzerland to claim exemption, he would have offered his
service to the United States, and stated that he was ready and willing
to serve in the Armed Forces of this country. In view of the alien's
residence of approximately 12 years in the United States, his family
ties of wholly dependent citizen wife and two minor children, and good
moral character, we conclude that on the record, he is eligible for
suspension of deportation.
Suspension of Deportation -- Findings of Fact: Upon the basis of all
the evidence presented, it is found:
(1) That the alien is not ineligible for naturalization in the
United States.
(2) That the alien has been of good moral character for the
preceding 5 years.
(3) That deportation of the alien would result in serious
economic detriment to his wife and two minor children, the wife a
naturalized citizen and the children native born citizens.
(4) That after full inquiry no facts have been developed which
would indicate that the alien is deportable under any of the
provisions of law specified in section 19(d) of the Immigration
Act of 1917, as amended.
Suspension of Deportation -- Conclusion of Law: Upon the basis of
the foregoing findings of fact, it is concluded:
(1) That the alien is eligible for suspension of deportation
under the provisions of section 19(c)(2) of the Immigration Act of
1917, as amended.
Order: It is ordered that deportation of the alien be suspended
under the provisions of section 19(c)(2) of the Immigration Act of 1917,
as amended.
It is further ordered that the order entered by the Board on January
6, 1949, be and the same is hereby withdrawn.
Crime involving moral turpitude -- Manslaughter (New Jersey) -- Section 2: 138-5 of the New Jersey Criminal Statutes -- Voluntary and involuntary manslaughter.
The New Jersey Criminal Statutes do not define the crime of manslaughter. The courts of New Jersey have held that section 2: 138-5 of the New Jersey Criminal Statutes embraces both voluntary and involuntary manslaughter. Under this statute as interpreted by the New Jersey courts the term "feloniously did make an assault' could charge either an aggravated assault or a simple assault. Since it cannot be determined from the statute or conviction record that the offense was voluntary manslaughter rather than involuntary manslaughter, it cannot be concluded that the offense of which the alien was charged and convicted involves moral turpitude. (See 3, I. & N. Dec. 51, and 2, I. & N. Dec. p. XIV, IV(h), and 4, I. & N. Dec. 512.)
CHARGES:
Warrant: The act of February 5, 1917, in that on or after May 1,
1917, he has been sentenced more than once to imprisonment for terms of
1 year or more because of a conviction in this country of crimes
involving moral turpitude after entry, to wit: Manslaughter and larceny
and receiving stolen goods.
Discussion: This case is before us on motion to reconsider an order
dated June 6, 1946, providing for the respondent's deportation on the
above-stated charge. The respondent, in his motion inter alia, avers
that the charge stated in the warrant of arrest is not sustained as a
matter of law in that the crime of manslaughter (New Jersey) of which he
was convicted during the December 1933 term of the Court of Quarter
Sessions, Camden, N.J., does not involve moral turpitude.
The facts of the case are fully set forth in the Commissioner's
opinion of March 18, 1946. Briefly, they relate to a native of Russia,
last a citizen of Poland, whose one and only entry into the United
States was at the port of New York on January 8, 1933, at which time he
was admitted for permanent residence. The evidence of record
establishes that since coming to the United States the respondent has
been arrested and sentenced to terms of a year or more on two occasions;
once for manslaughter in 1934 and once for larceny and receiving stolen
goods in 1942.
The indictment herein considered relating to the crime of
manslaughter for which he was convicted in the Court of Quarter Sessions
at Camden, N.J., provides that the respondent "in and upon one M M * * *
feloniously did make an assault, and him, the said M M , then and there
feloniously did kill and slay.' It follows precisely the New Jersey
procedural statute concerning allegations in an indictment for
manslaughter. /1/ Both the indictment and the commitment judgment of
the court in the case at bar are silent as to the details or the
circumstances surrounding the killing.
The New Jersey criminal statutes do not define the crime of
manslaughter. /2/ The courts of New Jersey have held that section 2:
138-5 of the New Jersey criminal statutes embraces both voluntary and
involuntary manslaughter. For example, an indictment in precisely the
same form as the one under consideration was before the court in the
case of State v. Harrison, 107 N.J.L. 213 (1931). It charged the
defendant "did feloniously kill and slay John G .' The indictment was
based upon a grade-crossing accident in Belleville, N.J., where the
street crosses the tracks of the Erie Railroad Co. at grade level. The
defendant was employed by the railroad company as a crossing gateman.
The state claimed that the death of John G was due to gross negligence
on the part of the defendant in failing to lower the crossing gates for
an approaching train as a result of which John G drove upon the tracks
in his automobile and was struck and killed by the train. It was
contended before the New Jersey Supreme Court that the court below erred
in refusing to direct a verdict for the defendant upon the ground that
the State failed to prove that there was neglect or failure of the
defendant's duty to an extent amounting to gross negligence. The
appellate court, however, found that such a failure of duty on the part
of a crossing watchman justified a finding of gross negligence and the
defendant's conviction by the court below was affirmed.
A similar indictment was involved in the case of State v. O'Brien, 32
N.J.L. 169. In that case a watchman employed by the New Jersey Railroad
& Transportation Co. failed to perform his duty in closing a siding
switch thus causing a passenger train to be diverted from the main line
which resulted in a wreck and the death of a passenger. The court in
its opinion said:
Intent to take life whether by an act of omission or commission
distinguishes murder from manslaughter. In order to make out
against the defendant the lesser offense of manslaughter it was
not necessary that it should appear that the act of omission was
willful or of purpose * * *. The defendant in this case omitted
his duty under such circumstances as amounted to gross or culpable
or criminal negligence. /3/
It may be argued that the term "feloniously did make an assault' as
used in the indictment before us connotes an aggravated assault and thus
turpitudinous. The principal question before the court in the case of
State v. Thomas, 65 N.J.L. 598 (1901); 48 A. 1007, reversing 64 N.J.L.
532, 45 A. 913, was whether an indictment charging manslaughter in the
words of the statute (supra, footnote 1) and similar to the one before
us would support a conviction for assault and battery. The court of
errors and appeals in setting aside the judgment rendered against the
defendant in the supreme court of New Jersey said:
It is urged that the word "slay' imports a killing by direct
personal violence, and hence includes assault and battery. But
under our statute the formula "did feloniously kill and slay'
charges manslaughter of either voluntary or involuntary character,
and involuntary manslaughter may be committed without criminal
assault and battery * * *. Hence the most that can be said of the
present indictment on this point is that it charges an offense of
which assault and battery may or may not be an ingredient. Such
an accusation does not distinctly and precisely inform the accused
that he is charged with this lower misdemeanor, as is required by
the authorities cited. /4/ At best, the charge is equivocal and
inferential only.
We concede that the allegation in the indictment before us indicates
that there was affirmative action on the part of the respondent which
resulted in the death of the deceased. But under the statute as
interpreted by the New Jersey courts the term "feloniously did make an
assault' could charge either an aggravated assault or a simple assault.
Since the crime of manslaughter is not defined by statute, and there is
no allegation of malice in the indictment, nor is this element found in
the statute, we have no way of determining what type of assault resulted
in the death of the deceased. It could well be a simple assault without
malice aforethought, and hence only involuntary manslaughter. We cannot
say that the offense was voluntary manslaughter if it is not distinctly
set forth in the indictment of State v. Thomas (supra).
The immigration laws require that the crime committed by the alien
involve moral turpitude. The courts /5/ have consistently held that
voluntary manslaughter involves moral turpitude and that involuntary
ordinarily does not. We are not permitted to go behind the record to
determine just what transpired. Mylius v. Uhl, 203 Fed. 152 (S.D., N.
Y., 1913). We must determine in each case that which must be shown to
establish the guilt of the alien. Accordingly, the definition of the
crime must be taken at its minimum. Under the rule laid down in Mylius
v. Uhl (supra), our hands are tied in a situation where the statute
includes crimes which involve moral turpitude as well as crimes which do
not inasmuch as an administrative body must follow definite standards,
apply general rules, and refrain from going behind the record of
conviction. It is true that in rare instances this rule results in a
finding of nondeportability in some cases where the offense is
indicative of bad character "but such results always follow the use of
fixed standards, and such standards * * * are necessary for the
efficient administration of the immigration laws.' Mylius v. Uhl
(supra). Relying upon the decisions of the New Jersey courts referred
to above, the language used in the indictment under consideration cannot
be said to be conclusive that the crime committed by the respondent
amounts to voluntary manslaughter.
The case at bar is distinguishable from the Attorney General's ruling
in Matter of S , A-5530239, 2, I. & N. Dec. 559-569, July 18, 1947, and
from our opinion in Matter of D , A-6214908, October 17, 1947, 3, I. &
N. Dec. 51. The S case involves an alien indicted in the State of Ohio
in 1936 and again in 1943 for murder in the second degree. Both
indictments alleged that the alien "unlawfully, purposely and
maliciously killed' certain-named persons. On each occasion the alien
pleaded guilty to the lesser offense of manslaughter and was sentenced
to an indeterminate term of imprisonment. The alien in the D case was
indicted in the State of New Jersey during June of 1932 on two charges
of first-degree murder. Both indictments charged that the respondent
"with force and arms in and upon (A and B) * * * willfully and
unlawfully an assault did make; * * * and * * * did then and there
willfully, unlawfully, feloniously, and of his malice aforethought kill
and murder * * * (A and B).' Italics supplied. The alien pleaded not
guilty to both indictments but two separate juries returned a verdict of
"guilty of manslaughter * * * so say they all.'
The Attorney General in the S case (supra), reasoned that "in the
absence of other evidence in the records of conviction under Ohio
statutes, it is reasonable to conclude that the homicides committed by
the alien were voluntary.' Following the Attorney General's reasoning,
we found in the D case (supra), that the indictments for murder provided
that the homicides were committed by means of an assault with malice
aforethought and under the circumstances must be considered voluntary in
the absence of evidence to the contrary in the records of conviction.
The indictment in the case at bar, however, does not allege that the
respondent "unlawfully, purposely, and maliciously kill,' nor does it
charge that the respondent "willfully and unlawfully an assault did
make; * * * and * * * did then and there willfully, unlawfully,
feloniously, and of his malice aforethought kill and murder' the
deceased. A party indicted for a crime may be convicted of any offense
of a lower grade provided such lower offense is included within the
description in the indictment. No such description of voluntary
manslaughter is included in the indictment before us.
Order: It is ordered that that portion of the motion directed to the
termination of the proceedings under the outstanding warrant of arrest
be and the same is hereby granted; the order entered by this Board on
June 6, 1946, and the warrant of deportation predicated thereon are
hereby withdrawn.
(1) Sec. 2:188-11. Allegations in indictment for murder and
manslaughter. In any indictment for murder or manslaughter it shall not
be necessary to set forth the manner in which, or the means by which the
death of the deceased was caused, but it shall be sufficient in every
indictment for murder to charge that the defendant did willfully,
feloniously, and of his malice aforethought, kill and murder the
deceased; and it shall be sufficient in every indictment for
manslaughter to charge that the defendant did feloniously kill and slay
the deceased.
(2) Sec. 2:138-5 entitled "Manslaughter is merely a penalty statute.'
It reads as follows:
"Any person who shall commit the crime of manslaughter shall be
punished by fine not exceeding $1,000, or imprisonment at hard labor or
otherwise not exceeding 10 years, or both.'
(3) Also see State v. Biango, 75 N.J.L. 284, 68 A. 125 (November 11,
1907); State v. Zellers, 7 N.J.L. 220; State v. Blaine, 104 N.J.L.
325 (1928); 137 A. 829.
(4) State v. Johnson, 30 N.J.L. 185; Commonwealth v. Blood, 70 Mass.
31, 4 Gray 31; State v. O'Brien (supra).
(5) Mongiovi v. Karnuth, 30 F.(2d) 825 (D.C., N.Y., 1929); U.S. ex
rel. Sollano v. Doak, 5 F.Supp. 561 (D.C., N.Y., 1933), aff'd. 68 F.(
2d) 1019; In re Schiano Di Gola, 7 F.Supp. 194 (D.C., R.I., 1934).
Dissenting, ROBERT M. CHARLES, Member.
Discussion: This matter has been presented to the Board upon motion
to reconsider order of June 6, 1946, where in deportation from the
United States was directed for the reason hereinabove set forth.
The only issue is whether or not the offense of manslaughter for
which this alien was convicted in the State of New Jersey during the
month of December 1933 is an offense involving moral turpitude.
The majority of the Board are of the opinion that the offense of
manslaughter as defined by the statute in the State of New Jersey and as
here committed by the petitioner is not a crime involving moral
turpitude. With this determination I am unable to agree.
The facts in the case are discussed in the opinion of the
Commissioner of Immigration of March 18, 1946. The subject hereof is a
native of Russia and he was last a citizen of Poland. He arrived in the
United States at New York on January 8, 1933, and was thereafter
admitted for permanent residence. Subsequent to entry to the United
States the subject hereof was sentenced to imprisonment for terms of 1
year or more, the one offense being manslaughter committed in 1934 and
the other larceny and receiving stolen goods in 1942.
The indictment returned by the grand jury in New Jersey for the
offense of manslaughter as aforesaid as shown in exhibit 3 reads in part
as follows:
Camden County to wit: The grand inquest of the State of New
Jersey and for the body of the county of Camden, upon their
respective oath; present that H B late of the city of Camden, in
the said county of Camden, on the Eighth day of October, in the
year of our Lord one thousand nine hundred and thirty-three at the
city and county aforesaid, and within the jurisdiction of this
court, in and upon one M M , in the peace of God and this State
then and there being, feloniously did make an assault, and him,
the said M M , then and there feloniously did kill and slay.
The cases cited by the majority in support of their determination
that the offense as defined by the New Jersey statute is not one
involving moral turpitude are not determinative of the issue here
involved. The indictment clearly shows that while the defendant was
making a felonious assault that he then and there feloniously did kill
and slay.
In the Matter of State v. Harrison, 107 N.J.L. 213 (1931), the
defendant there omitted or failed to do his duty. The indictment was
predicated upon a grade crossing accident in Belview, N.J. The defendant
was employed as a crossing gateman. Gross negligence was charged in
that the defendant failed to lower the crossing gates for an approaching
train as a result of which the decedent drove upon the tracks and was
struck and killed by the train. The appellate court found that such
failure of duty on the part of a crossing watchman justified a finding
of gross negligence and the defendant's conviction was affirmed. The
case of the State v. O'Brien also involves an omission of the defendant
in failing to close a siding switch as a result of which a wreck
occurred and one ?? was killed. There, too, gross negligence was
charged.
Obviously the case at bar is distinguishable from the precedents
cited by the majority as hereinabove referred to and it is my opinion
that the case of the State v. Thomas, 65 N.J.L. 598, is likewise
inapplicable here because of the facts and circumstances therein
enumerated.
In the case at bar the alien in the commission of a felonious assault
did feloniously kill and slay another. The offense is somewhat similar
to several cases decided by this Board heretofore. This Board has held
that an assault with intent to commit manslaughter in Florida is an
offense ?? moral turpitude. See Matter of J , A-7712748 decided
February 1946 (2, I. & N. Dec. 477). In the Matter of B , A-3748822
(unreported), this Board held that an assault, second degree, with
intent to kill committed in Montana was an offense involving moral
turpitude.
In the Matter of J hereinabove referred to the Florida statute was
being interpreted and in that case we said that the statute in substance
included both voluntary and involuntary manslaughter as that existed at
common law and there the statute is so stated that the two crimes are
inseparable. We also said "* * * the crime of "assault with intent to
commit manslaughter' contemplates only "voluntary manslaughter' as it
existed at common law and there can be no conviction where the
substantive crime admits to only involuntary manslaughter, voluntary
manslaughter involving moral turpitude because it requires an evil
intent or depraved motive to take human life, (Matter of D , 56137/380,
October 29, 1943; Matter of S , 56131/71, August 21, 1943 (1, I. & N.
Dec. 519); Alessio v. Day, 42 F.(2d) 217 (C.C.A.2d 1930)).'
The majority has attempted to distinguish the ruling of the Attorney
General in the Matter of S , A-5530239, 2, I. & N. Dec. 559-569, July
18, 1947, and Matter of D , A-6124908, October 17, 1947 (3, I. & N.
Dec. 51). It is my contention, however, that specifically the question
there determined is applicable in the present case.
In the State of New York where different degrees of manslaughter are
defined by statute the offense has been held to involve moral turpitude
Pillisz v. Smith, 46 F.(2d) 769 (C.C.A. 7, 1931).
After careful consideration of the indictment and the New Jersey
statute here involved, it is my conclusion that the offense committed by
the subject alien is one involving moral turpitude and accordingly the
appeal from the decision of the Commissioner of Immigration and
Naturalization should be dismissed.
Crime -- Unlawful compulsion (1949) -- Paragraph 240, German Criminal Code -- Recourse to "conviction record' to determine if offense involves moral turpitude.
The orginal charge was subornation of perjury, but the court found him guilty of unlawful compulsion (ordering the charge amended to read "Paragraph 240 of the German Criminal Code, instead of paragraph 160, 48, 43.'). Paragraph 240 (supra) is broad in scope and might include in its definition crimes which do and some which do not involve moral turpitude, so recourse may be had to examination of the "conviction record' (which includes a statement of record made by the court in sentencing defendant) to ascertain whether the requisite moral obloquy is present. Such a statement made by the court, as well as its action in reducing the charge, lead to the conclusion that he is not guilty of a crime involving moral turpitude and has not admitted the commission of such a crime.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917 -- Convicted of crime involving moral turpitude, unlawful compulsion, in violation of section 240 of the German Criminal Code.
Act of 1917 -- Admits crime involving moral turpitude -- unlawful
compulsion, in violation of section 240 of the German Criminal Code.
Discussion: Appellant is 35 years old, a native and citizen of
Poland. He seeks to enter the United States as a displaced person under
the Displaced Persons Act of 1948, as amended. He was ordered excluded
by a board of special inquiry at Schweinfurt, Germany, on December 21,
1950. He appeals from the decision of exclusion.
The records show that appellant was a farmer and was deported from
Poland to Germany to work as a farmworker in 1939. He was previously
rejected by a United States consul because of illiteracy. He has now
overcome that obstacle. The board of special inquiry found that
appellant was convicted for violation of paragraph 240, German Criminal
Code on July 13, 1949, in the United States Summary Military Court at
Coburg, Germany, that he admitted the commission of this offense, and
that violation of that section of the German Criminal Code involves
moral turpitude. The board found him inadmissible to the United States
as a person who has been convicted of a crime involving moral turpitude
and who admits the commission of such crime.
The Commissioner's opinion discussed at some length the facts with
regard to the incident which resulted in appellant's conviction, and
concluded that "the appellant attempted under threats of bodily injury
to suborn two witnesses in a judicial proceeding. It is our view that
subornation of perjury is an offense in which moral obloquy inheres.'
This discussion of the facts of the case and of what occurred at the
criminal trial is unnecessary, and indeed is inappropriate in view of
U.S. ex rel. Zaffarano v. Corsi, 63 F.(2d) 757 (C.C.A. 2, 1933), and
similar cases. That line of cases limits us to consideration of the
record of conviction, by which, says the court, in the Zaffarano case,
"* * * we mean the charge (indictment) plea, verdict, and sentence. The
evidence upon which the verdict was rendered may not be considered, nor
may the guilt of the defendant be contradicted.'
We interpret the rule to mean that we may also consider any statement
of record made by the court in sentencing a defendant. The record shows
that the court ordered the charge amended to read "Paragraph 240 of the
German Criminal Code, instead of paragraph 160, 48, 43.' The court then
said:
J K as the police witnessed that you have behaved correctly and
did not use any threats against the women, court is sentencing you
to 1 month's confinement, but for the above reasons is suspending
the sentence pending your good behavior.
The two sections of the German Criminal Code here involved are:
Unlawful Compulsion. -- 240 (as amended 29 May 1943, RGBI I
339). -- Whoever unlawfully compels another, by force or threats
of considerable evil, to act, to acquiesce in any act, or to omit
to act shall be punished for unlawful compulsion by imprisonment,
or fine, and in especially serious cases by confinement in a
penitentiary or imprisonment for not less than 6 months.
The act is unlawful whenever the application of force or the
infliction of the threatened evil for the purpose intended,
contradicts the people's sound sentiment (gesundes
Velksempfinden).
The attempt is punishable.
Subornation of a False Oath. -- 160. -- Whoever suborns another
to take a false oath shall be punished by imprisonment not to
exceed two years, in addition to which he may be sentenced to loss
of civic rights, and whoever suborns another to make a false
declaration in lien of an oath shall be punished by imprisonment
not to exceed 6 months.
The attempt is punishable.
Another section, 159, is entitled "Attempted Subornation of Perjury.'
Appellant was not charged under this section.
The charge sheet shows that the charge was changed to paragraph 240
of the German Criminal Code, but the parenthetical explanation of what
was contained in the sections of the charge originally placed there was
not changed. That is, it continues to read, "Threatening and
intimidation of witnesses, subornation of perjury.' However, the record
of the United States Courts of the Allied High Commissioner for Germany,
Tenth Judicial District, shows that the violation charged was of
paragraph 240 German Criminal Code, unlawful compulsion and shows that
appellant was sentenced to one month imprisonment, suspended on good
behavior.
Contrary to the Commissioner's finding, the court concluded that this
man was not guilty of subornation of perjury as originally charged, that
he was guilty, at most, of unlawful compulsion. Section 240, the
statute in question, is broad in scope and might include offenses which
would not involve moral turpitude. When a statute is divisible or
separable and so drawn as to include within its definition crimes which
do and some which do not involve moral turpitude, the record of
conviction may be examined to ascertain whether the requisite moral
obloquy is present. It is our conclusion that in view of the court's
statement that he had "behaved correctly and did not use any threats
against the women,' and the court's action in reducing the charge from
one under section 160 to one under section 240 of the code, that he is
not guilty of the commission of a crime involving moral turpitude, nor
has he admitted the commission of such a crime.
The immigration visa presented by the appellant, valid for a period
of 4 months from the date of issuance, October 6, 1950, has now expired.
The Assistant Commissioner found him inadmissible on the additional
ground that he is an immigrant not in possession of a valid immigration
visa. It will be necessary for the appellant to secure a new
immigration visa.
Order: It is ordered that the appellant be admitted to the United
States for permanent residence under the Displaced Persons Act of 1948,
as amended, when in possession of the necessary documents.
Citizenship -- Acquisition by birth in United States -- Expatriation -- Voting in a political election in a foreign state (Germany) -- Section 401(e) of the Nationality Act of 1940 -- Voluntary nature of Act -- Evidence.
The subject, a native born citizen of the United States, resided in
Germany from 1939 until 1950 and voted in the election for the Bundestag
held at Bremen, Germany (British Zone), on August 14, 1949. She was
deemed to have expatriated herself by such voting under the provisions
of sec. 401(e) of the Nationality Act of 1940, since the evidence showed
such act was voluntary on her part and was not an act that her situation
required her to do.
Discussion: The subject was born in the United States at New York,
N.Y., on October 15, 1906, and acquired United States citizenship by
reason of her birth in this country, as provided for in the 14th
amendment to the United States Constitution. The evidence obtained
concerning her possible expatriation relates to the period from 1939
until 1950, when the subject resided in Germany. The facts in the case
are fully stated in a copy of a memorandum dated February 26, 1951, of
the American consulate, Bremen, Germany, which was received from the
Department of State. Therein the following was stated:
Mrs. H originally applied to Swiss consular officials
representing American interests during 1945 in connection with the
determination of her American citizenship status acquired as a
result of birth at New York on October 15, 1906. Subsequently,
upon reopening of American consular offices in Germany during
1946, she applied at Frankfort and later at this office. Her case
was eventually submitted to the Department of State. It was
disapproved by the Department on the basis of information which
indicated that she had performed employment under the German
Government which appeared to fall within the expatriatory
provisions of section 401(d) of the Nationality Act of 1940.
Although a certificate of the loss of the nationality of the
United States was submitted on this basis and loss of American
citizenship confirmed by the Department during 1948, Mrs. H did
not give up her efforts to establish, (1) that the position was
not open unequivocally only to German nationals and (2) that she
was not required to take an oath of allegiance to the German
state. It is not unlikely that Mrs. H after repeated attempts
which stretched over a period of almost 3 years, conceded the loss
and regarded herself as no longer possessing any claim to American
citizenship.
In a final effort to clarify this case beyond any question of
reasonable doubt, it was again presented to the Department
accompanied by additional evidence obtained through local official
German sources. The Department, in reply contained in its
instruction dated January 30, 1950 (File No. Y130-H , E ),
informed this office of its final decision in this case, as
follows:
"Since it does not appear that the position held by Mrs. H in
the Economics Office at Bremen, Germany, was such as to bring her
case within the purview of section 401(d) of the Nationality Act
of 1940, since it does not appear that she took an oath of
allegiance to Germany in connection with such position, and since
evidence has been presented to the Department indicating that Mrs.
H accepted the position under circumstances amounting to duress,
the Department is of the opinion that she cannot be held to have
expatriated herself under the provisions of section 401( d) of the
Nationality Act of 1940, or to have expatriated herself under the
provisions of section 401(b) of that act.
"Mrs. H 's registration as an American citizen for further
residence in Germany is disapproved, but, if you are fully
satisfied that she has not expatriated herself in any manner, you
are authorized to issue a passport to her to enable her to proceed
to the United States, upon her application therefor.'
When the foregoing was brought to the attention of Mrs. H ,
upon questioning, she admitted that she had voted in the election
for the Bundestag, held at Bremen on August 14, 1949. Although
this action on her part may have been partly due to her belief
that citizenship was irrevocably lost, this office had no
alternative, and citizenship was again reported lost, but under
section 401(e) of the Nationality Act, under date of February 20,
1950.
Mrs. H also admitted in a Military Government Fragebogen
(questionnaire) completed by her on October 30, 1946, that she was
a member of the National-Socialist Reichsbund fuer Leibesuebungen
(physical exercises), from March 1944 to August 1944, but during
such membership held no rank. There is no information available
to this office that would indicate nominal membership in this
organization would have resulted in the loss of American
citizenship.
In a letter dated May 9, 1950, the subject stated:
I had voted in the summer 1949 in Germany for the new
democratic regime as I thought I was German. By then I didn't
know for sure if I would get an affidavit of support and it might
have been that I had to stay in Germany. So I felt that I had to
give my vote to the Democratic Party as they needed the votes in
getting ahead of the Communistic Party.
In a letter dated August 5, 1950, the subject explained the
circumstances of her voting in the German election as follows:
After having been expatriated in 1946, I was treated as a
German and received a voting card in 1949. Thinking I was a
German, I voted for the Christian Democratic Party.
The very essence of expatriation is that it be voluntary (Doreau v.
Marshall, 170 F.(2d) 721, U.S. Court of Appeals, Third Circuit, 1948).
In a case, where a person had been erroneously advised by the Department
of State that he had lost his United States nationality and the person
concerned had thereafter been inducted into the armed forces of a
foreign state (Roumania) and had taken an oath of allegiance to the
foreign state, it was held that that person had not voluntarily
expatriated himself by the taking of an oath of allegiance to a foreign
state or by service in the armed forces of the foreign state (Podea v.
Acheson, 179 F.(2d) 306, U.S. Court of Appeals, Second Circuit, 1950).
In that case the court said:
For many years he had vainly sought to obtain a passport from
the State Department which was denied him under a mistake of law.
If he had come in as an immigrant on the Rumanian quota, he might
have had to meet the claim that he had conceded Rumanian
citizenship and be confronted by a concession of serious if not
fatal character. See Schaufus v. Attorney General, D.C., 45 F.
Supp. 61, 65. If he had remained in this country under his visa
he ran the risk of being deported for either an illegal entry or
an illegal overstay. Sleddens v. Shaughnessy, 2 Cir., 177 F.(2d)
363. It seems most technical to hold that the plaintiff did not
act under duress. In our opinion he never voluntarily expatriated
himself by taking an oath of allegiance to Rumania or by serving
in the Rumanian Army. Both steps were required by the situation
in which he found himself, were primarily caused by the erroneous
advice of the State Department and were farthest from his real
purpose.
In the Podea case (supra), the facts were that he received a ruling
from the Department of State in 1934 that he was not a citizen, that, in
1936, he made an application (his second application) for a United
States passport which was refused and that later in the same year he was
inducted into the Rumanian Army and took an oath of allegiance,
apparently without further asserting his claim to American citizenship.
He entered the United States in 1939 as a temporary visitor and was
again advised by the Department of State that he was not a citizen. He
returned to Rumania late in 1939 and was again inducted into the
Rumanian Army in June 1941. The situation in Podea's case was that
elements of compulsion were present, as pointed out in the court
decision. He was inducted into the Rumanian Army and did not enlist.
If he had remained in this country following his admission as a visitor,
he would have run the risk of being deported. The instant case may be
distinguished from the Podea case, in that there is nothing in the
record to show that the subject's act of voting was required by the
situation in which she found herself. As far as the record shows, she
was not required to participate in the political affairs of a foreign
state; instead it seems evident from her letters that she voted as a
German because she wanted to show her preference for a political party.
While misinformation is an extenuating circumstance, it does not
necessarily follow that it will serve forever as an excuse for a
person's subsequent acts, especially action that need not be taken. It
should also be pointed out that a national of the United States, denied
a right or privilege by an administrative agency, has available to him
the procedure outlined in section 503 of the Nationality Act of 1940 for
procuring a judicial determination of citizenship status.
There is no evidence that the subject was required to vote at Bremen
and her statements show that her participation in the election was an
act of her own choosing. It is concluded, therefore, that her act of
voting on August 14, 1949, was a voluntary act.
The subject's attorney has cited the case of Brehm v. Acheson, 90 F.
Supp. 662 (S.D. Texas, 1950), in support of his contention that the
subject did not lose her United States citizenship. It was held therein
that an election in the American Zone of Germany by permission and under
direction of the United States was not a political election in a foreign
state, because it was held in territory then ruled and governed by the
United States. In the instant case, the subject voted in Bremen in the
British Zone of Germany. It is a matter of no importance whether the
territory at Bremen in regarded as being ruled by Great Britain or by
Germany, since the election was, in any event, held in a foreign state.
It is concluded that the subject expatriated herself on August 14,
1949, under the provisions of section 401(e) of the Nationality Act of
1940, through her voluntary act of voting in a political election in a
foreign state.
It is ordered that from the evidence presented, the subject be deemed
not a citizen of the United States. The file in the case should be
returned to the field office at Buffalo, N.Y., with instructions to
advise the subject accordingly.
"Good moral character' -- Requisite for eligibility for relief from deportation -- Section 19(c) of the Immigration Act of February 5, 1917, as amended.
An alien, seeking to adjust his immigration status here under Sec. 19(c) of the Immigration Act of February 5, 1917, as amended, to enable him to bring his wife from abroad to reside with him here, is found under the circumstances not to have established that he was a person of good moral character for the required statutory period of five years, in view of the adulterous relationship he had maintained here during this period with a woman other than his wife, such lapses from common standards of morality being casual, concupiscent, promiscuous, and adulterous.
CHARGE:
Warrant: Act of 1924 -- Remained longer.
Discussion: This is an appeal from an order entered by the Acting
Assistant Commissioner on March 26, 1951, directing the deportation of
the above-captioned alien from the United States on the charge set forth
in the warrant of arrest. Counsel's exceptions are directed to the
denial of discretionary relief. Deportability is not at issue.
The respondent, a native of the Island of Syme, Dodecanese Islands,
of Greek descent, male, now 61 years of age, last entered the United
States as a seaman on December 16, 1926, at the port of Baltimore, Md.
A warrant for his arrest on the charge that he had remained longer than
permitted by the Immigration Act of 1924 was issued December 8, 1931.
He has been under immigration proceedings since that time.
The respondent has filed formal application for suspension of
deportation under the provisions of section 19(c)(2) of the Immigration
Act of 1917, as amended. He has resided in this country since 1926. He
owns and operates a restaurant, earning approximately $40 to $50 a week.
His assets consist of the business goodwill and fixtures valued at
$2,000, together with cash in the bank amounting to $3,500, a $500
appearance bond and approximately $300 in war bonds. He supports his
wife and children who are residing in Egypt.
Respondent has no criminal record, as evidenced by reports from local
police authorities and from the Federal Bureau of Investigation. He
presented affidavits of two United States citizens attesting to his good
moral character. An independent investigation conducted by officers of
the Service developed nothing derogatory as to his character or loyalty
to the Government of the United States.
The respondent's application for discretionary relief presents only
one problem. The evidence establishes that he how resides alone but his
testimony indicates that he maintained an apartment with one Mrs. G N
for approximately 13 months until December 1947. During that time the
parties indulged in sexual relationships with each other. The intimate
relations commenced several years prior to their maintaining a single
apartment. The Acting Assistant Commissioner finds that the respondent
has not established good moral character requisite for suspension of
deportation by reason of the adulterous relationship referred to above.
Two points are urged in counsel's brief filed in behalf of the
respondent. (1) The Government's laches should redound to the benefit
of the alien on all doubtful questions. (2) The alien has proved good
moral character for the 5 years preceding the hearing of February 6,
1950. No authorities have been cited by counsel in support of the first
point. Authorities cited in support of the second will be considered
hereinafter.
We concede that the proceedings herein have been pending for
approximately 20 years. Respondent was originally ordered deported to
Egypt at Government expense on September 1, 1932. The Egyptian
authorities refused to grant travel documents for the reason that he was
of Greek origin. The original order was amended November 14, 1932, to
provide for his deportation to Greece. The Greek authorities, however,
refused to issue a passport on the ground that he was not registered in
the community claimed by him. He was released on his own recognizance
to depart voluntarily or reship foreign under the warrant of deportation
on November 22, 1932. The State Department continued its effort to
secure travel documents throughout the year 1933 but was not successful.
Soon after the cessation of hostilities in Europe (World War II, June
1945) efforts were resumed to deport the respondent. It appears that he
was again taken into custody. A memorandum in the form of a motion to
reopen was filed in his behalf by Attorney Albert L. Singer on August
21, 1945. His deportation was stayed for 30 days pending action on the
motion. This Board on August 27, 1945, granted the motion to reopen and
directed the withdrawal of the outstanding order and warrant of
deportation. Thereafter voluntary departure and preexamination were
authorized but the respondent was unable to avail himself of those
privileges. The proceeding was ordered reopened on March 23, 1949, to
permit him to apply for suspension of deportation under the 1948
amendment to section 19(c) of the Immigration Act of 1917. The case is
now before us pursuant to this order.
Deportation is the exercise of a right existing in all sovereign
governments to say whom of aliens they will allow to remain in their
borders. The Immigration Act of 1924 places no limitation on this
right. Since 1945 the respondent has been allowed to remain as an act
of grace to permit him an opportunity to pursue administratively his
request for discretionary relief. Prior to 1945 circumstances beyond
the control of the sovereign prevented his removal from our borders.
Under the circumstances, we see no basis for counsel's argument that the
laches of the Government should redound to the benefit of the alien on
the doubtful questions at issue for the apparent reason that there has
been no laches. Furthermore, the great weight of authority is to the
effect that the equitable doctrine of laches does not run against the
Government, (U.S. v. Dalles Military Road Co., 140 U.S. 599, 632, 35
L.Ed. 560-571 (May 25, 1891), and cases cited therein).
The Acting Assistant Commissioner finds that the adultery committed
by the respondent within the 5 years immediately preceding his
application for discretionary relief automatically precludes a finding
of good moral character as required by section 19(c) of the Immigration
Act of 1917, as amended. This is the sole issue before us because in
other respects it appears that the respondent meets the statutory
requirements for the discretionary relief he seeks. This Board in
Matter of O , A-3889600, 2, I. & N. Dec. 840 (A.G. Dec. 18, 1947),
discussed fully its views regarding the relation between adultery and
good moral character under section 19(c) of the 1917 act. We said in
that case, "* * * adultery may evidence lack of good moral character but
* * * it does not under all circumstances necessarily require such a
finding * * * a man's character is the sum total of what he has done and
should not be based upon one phase of a man's life.'
We supported our position with factual resumes of some 10 cases /1/
in which rulings of the Attorney General, action by this Board,
decisions by the Commissioner and decisions in naturalization cases held
that a favorable finding was not unwarranted despite the relationship
within the statutory period.
Reference to Matter of O (supra), and the cases discussed therein
reveals several consistent factors which we deem important. We find no
evidence in any of them that the relationship under consideration had
its inception in lust. The cohabitation took the form of a long-term,
faithful relationship between two persons who considered themselves as
husband and wife. No third person appears to have been injured and no
family appears to have been broken up. The public was not offended
since it was evident that they were considered by their friends and
neighbors as upright, reputable persons.
The question for us to decide, therefore, is whether the facts of the
case at bar come within the pattern outlined above. The respondent has
been married since 1914. As stated above, his wife and four children
reside in Egypt. He has not seen his family for 25 years. He has
supported them by sending $100 every 2 to 2 1/2 months. He testified on
July 27, 1947, "I want to go back to Egypt to my wife and children * *
*. I want to depart voluntarily * * * I don't want to be deported.' He
was questioned on August 11, 1949, as to whether he intended to bring
his wife and family to the United States if granted the privilege of
remaining permanently, and he replied in the affirmative. He testified
on February 6, 1950, as follows: "I want to legalize myself so I can
take a trip to see my wife and my children whom I have not seen for 25
years. I cannot make this trip without the proper papers.'
The facts concerning his relationship with the woman not his wife are
briefly these. He originally came in contact with the woman as a
neighbor in the apartment where he lived. He helped her during an
illness through the solicitation of the janitor. During the early part
of 1947 the respondent and the woman moved into the same apartment in
another building. He testified on this occasion as follows:
Q. Are you answering the questions put to you on this occasion
through sense of embarrassment and therefore concealing the true
facts?
A. If I had anything to do with her once in a while, I paid
for it.
Q. Do you wish to change your testimony concerning the period
of your residence with Mrs. N and the question of
A. I slept with her occasionally for approximately
A. I slept with her occasionally for approximately the past 4
years, not 7 years. What I said is true that the only time we
lived in the same apartment together was when we moved to 321 West
40th Street.
Q. During the period in which you claim that you shared the
same apartment with her, did you sleep with her regularly?
A. Yes.
The respondent now maintains (February 6, 1950), that although he and
Mrs. N resided together in the same apartment for 13 months, the
relationship was not that of man and wife. His testimony in this regard
is as follows:
Q. During the time you lived in the same apartment with Mrs. N
you had sexual relations with her. Isn't that so?
A. Yes.
Q. At frequent intervals?
A. No; not frequent.
Q. About how often?
A. Two or three times a month.
Q. During the entire year of 1947?
A. Yes.
Q. Did those relations continue after you moved to another
address?
A. Absolutely not.
Q. Did the relations with her begin before you occupied the
same apartment with Mrs. N ?
A. Yes; when we had separate apartments in the same house.
Q. When did you first begin having sexual relations with Mrs.
N ?
A. About 15 months before we moved into the same apartment.
Q. In other words, then, you had sexual relations with Mrs. N
for about 28 months altogether. Is that correct?
A. Yes.
Q. Did you ever hold her out as your wife?
A. No.
Q. Did you ever support her?
A. No.
* * * * * * *
Q. And you are aware too, are you not, that she claims to have
lived with you as husband and wife for about 7 years?
A. I know she said that, but it is not true. She used to work
for me, and then we fired her from the place just before the
inspector went around for the interviews. So, she was just being
spiteful. I did not live with her as husband and wife, and I did
not know her for 7 years. I used to go to bed with her but it
only lasted for about 4 years.
We have always been of the opinion that adultery should not be
considered lightly in the case of an alien seeking discretionary relief.
However, in the cases referred to in Matter of O (supra), the existing
marriage had already failed and deportation would not benefit the lawful
spouse, wherever she may be. The respondent's removal would not cause
extreme hardship to the woman with whom he lived because that
relationship had long since terminated. Here the relationship, by the
respondent's own admission, had its inception in lust. The cohabitation
did not take the form of a long-term, faithful relationship. Certainly
the respondent, by his own admission, did not consider the relationship
as one of man and wife. We have here a married man who acknowledges the
continued existence of his marriage while separated from his wife. He
is desirous of adjusting his immigration status in order to reside
physically with her. Nevertheless, he blandly admits casual and
promiscuous adultery. We do not think such conduct conforms to the
generally accepted moral conventions current at this or any other time.
Counsel is of the opinion that this case falls within the doctrine of
recent cases /2/ decided by certain of our circuit courts of appeals
wherein the issue concerned the good moral character of applicants for
citizenship. This Board, of course, is not bound to construe section
19(c) of the Immigration Act of 1917 on the basis of court decisions
involving section 307(a) of the Nationality Act of 1940. Nevertheless,
we believe that such decisions should be given great weight. We note in
those cases cited by counsel in which there is an opinion; namely, the
Murra and Schmidt cases, that there are factual differences which
distinguish them from the case at bar. The petitioner for citizenship
in the Schmidt case was unmarried. He admitted occasional intimacies
with "single and unmarried women' during the statutory period. The
court pointed out that the relationships were "casual, concupiscent, and
promiscuous, but not adulterous.' The petitioner in the Murra case lived
with his second wife for 4 or 5 weeks prior to their marriage. The
court in approving the petition said, among other things, "* * *
whatever may be thought of petitioner's transgression against the moral
code, he did all within his power to rectify the wrong by making the
woman his lawful wife and he has subsequently, so far as the record
discloses, lived in the approved manner as husband and wife.' The
respondent herein is neither unmarried nor did he attempt to rectify his
transgression in an approved manner.
The cases referred to above clearly indicate that there might be
extenuating circumstances under which a single lapse from marital
fidelity should be not deemed to outweigh an alien's general habits of
conforming to the common standards of morality. But here we find no
extenuating circumstances for the respondent's lapses. By his own
admission they were casual, concupiscent, promiscuous, and adulterous.
The appeal will be dismissed.
Order: It is ordered that the appeal be and the same is hereby
dismissed.
(1) Matter of L , A-5643477 (approved Attorney General, September 11,
1946); Matter of J W J , A-3192373 (approved Attorney General, June 17,
1947); Matter of D P , A-4514630 (approved Acting Attorney General,
August 15, 1947); Matter of B , 56130/885 (November 23, 1943); Matter
of H , A-4359810 (March 14, 1947); Matter of P , A-5946976 (March 20,
1947); Matter of F , (now D ), A-5444981 (C.O., July 30, 1946); Matter
of B , J , M and J , discussed in Petitions of Rudder et al., 159 F.(2d)
695 (C.C.A. 2, January 27, 1947).
(2) Schmidt v. U.S., 177 F.(2d) 450; U.S. v. Manfredi, 168 F.(2d)
752; U.S. v. Palombella, 168 F.(2d) 903; Application of Murra, 178
F.(2d) 670; Petition of Burke, 185 F.(2d) 678.
"Subversive' -- Past member of the Communist Party of the United States of America -- Act of 1918, as amended by the Internal Security Act of 1950 -- Constitutionality -- Fair hearing -- Evidence of membership -- Admissibility.
(1) Under the Internal Security Act of 1950, it is no longer necessary for the Government to establish that the Communist Party is one advocating the overthrow of the Government by force and violence.
(2) The constitutionality of this type of statute, as it affects immigration proceedings, has been adequately established by the courts.
(3) A (two-man) warrant hearing conducted (November-December 1950) in accordance with the act of September 27, 1950 (Public Law 843), was fair and impartial.
(4) Preliminary statements taken in accordance with 8 C.F.R. 150.1( c) and (d) were properly used in the warrant proceedings in accordance with 8 C.F.R. 151.3(b) and (c).
(5) Information supplied by alien registration forms in possession of the Government may be used by the Government for official purposes and in the public interest. (See sec. 34(b) of the Alien Registration Act of 1940, 8 U.S.C. 455.)
CHARGES:
Warrant: Act of 1918 as amended -- After entry into the United States, was an alien who was a member of an organization which advocated the overthrow of the Government of the United States by force and violence.
Act of 1918 -- After entry into the United states was an alien who was a member of an organization that distributed printed matter which advocated the overthrow of the Government of the United States by force and violence.
Lodged: Act of 1918 -- After entry into the United States, was an
alien who was a member of the Communist Party of the United States.
Discussion: Respondent is an alien, a native of Russia, who entered
the United States in 1911. The Assistant Commissioner ordered that the
respondent be deported from the United States on the lodged charge set
forth above. The hearing officer found, and the finding was adopted by
the Assistant Commissioner, that the respondent is not deportable on the
charges set forth in the warrant of arrest.
Counsel complains that hearings were not conducted in accordance with
all of the provisions of the Administrative Procedure Act, and claims
that the manner in which the proceedings were conducted constitutes a
denial of due process. As the Assistant Commissioner has pointed out,
the hearings in this case were conducted in accordance with Public Law
843, enacted on September 27, 1950, which provides that, "Proceedings
under law relating to the exclusion or expulsion of aliens shall
hereafter be without regard to the provisions of sections 5, 7, and 8 of
the Administrative Procedure Act.' The hearing conducted on November 28,
1950, and December 14, 1950, was a two-man hearing, with a hearing
officer and an examining officer. Our reading of the record convinces
us that the hearings and the entire proceedings involving Mr. F were
conducted in a fair and impartial manner. He was given every
opportunity to present any evidence he may have had. Respondent refused
to testify, and answered only one question during the hearing, giving
the country of his birth as Russia. His refusal to testify was on the
advice of his attorney who stated that he would not permit the
respondent to be a witness for the Government.
In oral argument before this Board, counsel made objections to the
lodged charge, on the ground that the Internal Security Act, as it
affects this alien, is an ex post facto law. The constitutionality of
this type of statute, as it affects immigration proceedings, has been
adequately established in the courts (U.S. ex rel. Harisiades v.
Shaughnessy, 187 F.(2d) 137 (C.A. 2, 1951)).
Counsel objects that exhibits 2, 3, and 4 were received in evidence
without the respondent having been advised at the time those statements
were taken, that he was entitled to have legal counsel present. Those
statements were taken in accordance with the regulations set forth in
title 8 C.F.R. 150.1(c) and (d), set forth in pertinent part below. /1/
The use to which such statements may be put is also prescribed by
regulations. /2/
In Reynolds v. U.S. ex rel. Koleff, 70 F.(2d) 39 (C.A. 7) the court
held that a written statement made by an alien freely and without threat
or coercion is available for use in a deportation proceeding. See,
also, U.S. ex rel. Bilokumsky v. Tod et al., 263 U.S. 149, 44 S. Ct.
54, 68 L.Ed. 221 and Ungar v. Seaman, 4 F.(2d) 80 (C.A. 8). It is clear
from the record, that respondent made his statement freely and without
any coercion or intimidation.
Counsel asked this Board for a new hearing. At the time of the oral
argument, he was asked what new evidence he proposed to introduce at the
reopened hearing. He responded, "We don't intend to produce any
evidence; we just want the Government to give us (the respondent) a
fair hearing, not to introduce evidence which is not admissible,
documents which have no business being in the record.' Respondent had
perfectly adequate opportunity to make any explanations or introduce any
evidence he desired. As the circuit court of appeals held in U.S. ex
rel. Harisiades v. Shaughnessy, 187 F.(2d) 137 (C.A. 2, 1951), with
respect to deportation the alien is entitled only to "procedural due
process,' that is, he must be given notice of the hearing and
opportunity to show that he does not come within the classification of
aliens whose deportation Congress has directed. If he did not take
advantage of the hearing legally constituted and conducted, which was
offered, that is not the fault of the Government.
The Government's exhibit A, or 3, is a statement made by respondent
on October 31, 1946. On August 17, 1949, he read the statement made by
him, designated exhibit A, and refused to sign it. He made some
corrections on the statement, relating to his relations with a woman who
is now his wife and was then his mistress. These corrections he
initialed. The statement indicates that he was informed that he was not
required to make a statement and that anything he might say would be
used against him in any action or proceeding which might be instituted
by the Government of the United States. He was asked whether he was
willing to be sworn and to be questioned under oath and he answered that
he was willing, and he took the oath. That statement was taken in
connection with respondent's pending petition for naturalization. He
stated that he had been a member of the Communist Party from 1928 until
December 1934 or January 1935. He stated that he had not been a member
of the Communist Party since 1935.
Exhibit 4 is a statement in affidavit form made by respondent on May
9, 1944. In this signed and sworn affidavit, respondent states that he
has been duly sworn and duly advised by the naturalization examiner that
any statement he makes may be used against him by the United States
Government in any civil or criminal proceeding, and that he makes this
voluntary statement of his own free will and consent. In this
statement, he declared that he was a party member from 1928 to 1931. In
part, his statement reads as follows:
I broke away from the Communist Party in 1931 because I did not
think they followed the communistic theories implicitly and
completely. I have read the writing of Karl Marx and other
Communist writers and believe that most of their theories of
government are good. I still believe in most communistic
principles. However, I do not believe that the United States
Government is a bad Government although there is room for
improvement. Some of the principles of communism should be tried
here.
Exhibit 5 is the respondent's alien registration Form AR-2 signed and
sworn on December 4, 1940. Question 10 on this form is: "I am, or have
been within the past 5 years, or intend to be engaged in the following
activities: In addition to other information, list membership or
activities in clubs, organizations, or societies.' Respondent's answer
to this question was, "Former member of Communist Party since 1935 --
and left in the middle of 1938. Member of International Workers Order
since 1936 to present.'
In his brief, counsel objected to the receipt in evidence of
respondent's alien registration form, claiming that all aliens had been
assured that the information supplied by them in the alien registration
would not be used against them under any and all circumstances. The
only restriction contained in the law against the use of the
registration records is the following:
Section 34(b). All registration and fingerprint records made
under the provisions of this title shall be secret and
confidential, and shall be made available only to such persons or
agencies as may be designated by the Commissioner, with the
approval of the Attorney General (8 U.S.C. 455).
Furthermore severe penalties were prescribed for failure or refusal
to register; also for the giving of statements known to be false (8 U.
S.C. 457), and numerous prosecutions have been had for such violations.
(U.S. v. Doshen, 133 F.(2d) 757 (C.C.A. 3., 1943); U.S. v. Ausneier,
152 F.(2d) 349 (C.C.A. 2, 1945); U.S. v. Gancy, 54 F.Supp. 755 (D.C.,
1944), aff'd 149 F.(2d) 788, cert. den., 66 S.Ct. 166, 326 U.S. 767, 90
L.Ed. 463, rch. den., 66 S.Ct. 229, 326 U.S. 810, 90 L.Ed. 495; U.S.
v. Macke, 159 F.(2d) 673 (C.C.A. 2, 1947), cert. den., 67 S.Ct. 1201,
331 U.S. 810, 91 L.Ed. 1830). It is our opinion that the information
supplied by the alien registration forms in the possession of the
Government may be used by the Government for official purposes and in
the public interest. If the information supplied cannot be so used,
there would have been no object in that vast undertaking directed by the
Alien Registration Act.
Exhibit 2 is the respondent's signed and sworn statement of August
15, 1949, in which respondent states that he was a member of the
Comunist Party, from 1930 to 1931.
Under the Internal Security Act of 1950, it is not longer necessary
for the Government to establish that the Communist Party is one
advocating the overthrow of the Government by force and violence. Under
that act, section 1(2)(C), membership in or affiliation with Communist
Party, specifically and by name, is made grounds for exclusion or
deportation. In the instant case, the Government did not introduce
evidence to show that the Communist Party is an organization advocating
the overthrow of the Government by force or violence. For that reason,
the charges contained in the warrant of arrest were not sustained.
In our opinion, the record contains adequate evidence that respondent
has been a member of the Communist Party of the United States. The
specific dates of his membership are unimportant. He is deportable
under the Internal Security Act of 1950.
Order: It is ordered that the appeal be dismissed.
(1) 150.1(c) Interrogation of aliens under investigation. -- All
statements secured from the alien or from other persons as witnesses
during the investigation, which are to be used as evidence, should be
taken down in writing in question and answer form; and the
investigating officer shall ask the person interrogated to sign the
statement. Whenever such recorded statement is to be obtained from any
person, the investigating officer shall (1) identify himself to such
person, (2) warn the person that any statement made by him may be used
as evidence against him in any subsequent proceeding, and (3) conduct
the interrogation under oath or affirmation. * * * (d) Refusal to make
recorded statement under oath or affirmation. Whenever, in the course
of an investigation, admissions or statements are obtained from an alien
or statements are made by any other persons which indicate that the
alien or other person refuses to make a recorded statement under oath or
affirmation or refuses or is unable to sign the recorded statement by
name or by mark, the investigating officer shall make a report in
writing to the officer in charge, setting forth the facts admitted or
stated as to the alien's status under the immigration laws * * *.
(2) Sec. 151.3(b) Use of statements made during course of
investigation. -- The hearing officer may enter of record any written or
recorded statement or satisfactory evidence of any admission made by the
alien or any other person during the investigation. If objection
thereto is made by the alien or his counsel or representative, the
reasons for the objection, as well as the ruling thereon by the hearing
officer, shall be made a part of the record.
(c) Affidavit. -- In cases in which an affidavit in narrative form
has been made by the alien prior to the issuance of a warrant of arrest
as provided in 150.1(c) of this chapter and such affidavit
satisfactorily establishes the facts necessary for determination as to
deportability, the hearing officer may enter the affidavit as an exhibit
of record and it may be used as the basis for the decision in the case.
Place of deportation -- Section 29 of the Immigration Act of 1917, as amended by the Internal Security Act of 1950 -- 8 C.F.R. 151.5(a) and 8 C.F.R. 152.2(e).
Section 20 of the Immigration Act of February 5, 1917, as amended by section 23 of the Internal Security Act of 1950 (Title I "Subversive Control Act of 1950'), and 8 C.F.R. 151.5(a) and 8 C.F.R. 152.2(e) contemplate that the determination of the place of deportation is primarily a matter for determination by the administrative officer, and that the local field officer has a degree of discretion whether to permit the alien (ordered deported) to depart at his own expense.
CHARGES:
Warrant: Act of 1924 -- No immigration visa.
Act of 1917 -- Stowaway.
Discussion: Counsel for the respondent has noted an appeal to us
from the order of deportation entered by the Assistant Commissioner.
The case concerns a native and citizen of France, 48 years of age,
who entered the United States on September 7, 1946 as a stowaway. The
order of deportation is based upon the charges of "no immigration visa'
and "entered as a stowaway.'
The alien requested voluntary departure without an order of
deportation. He is without family ties in the United States and has
been here but a short time. These facts coupled with the circumstances
of his entry into the United States, operate against a grant of the
application for departure without an order of deportation.
We note that in his argument before representatives of the
Commissioner counsel stressed the respondent's alleged fear for his life
if he were returned to France; that he desires to go to Argentina.
During the hearing the respondent testified that he intended, if granted
departure, to go to Argentina, Canada, or Spain. The decision of the
Assistant Commissioner states:
He has stated that the respondent would be willing to depart
under an order of deportation. The authority to permit such a
departure is vested in the officer in charge of the district (8
C.F.R. 152.2(e)). Accordingly, our decision is limited solely to
a determination or not the alien should be deported. On the
record before us his deportation should be directed.
The order of the Assistant Commissioner is "that the alien be
deported from the United States, pursuant to law * * *.'
Section 20 of the Immigration Act of 1917, as amended by the Internal
Security Act of 1950, provides.
That the deportation of aliens provided for in this act and all
other immigration laws of the United States shall be directed by
the Attorney General to the country specified by the alien, * * *.
No alien shall be deported under any provisions of this act to
any country in which the Attorney General shall find that such
alien would be subjected to physical persecution. * * * (8 U.S.
C. 156).
Regulations promulgated following the enactment of the foregoing
provide as follows:
* * * The hearing officer shall have no authority * * * to
designate at whose expense or to which country the alien shall be
deported (8 C.F.R. 151.5(a)).
When an alien has been ordered deported, the district director
of the district within which the alien is located or is in custody
may, in the absence of express directions to the contrary, permit
the alien to depart to any country of his choice by reshipping
foreign one way as a seaman, or by any other method, at the
alien's expense. * * * (8 C.F.R. 152.2(e)).
The foregoing clearly contemplates that the determination of the
place of deportation is primarily a matter for determination by the
administrative officer, and that the local field officer has a degree of
discretion whether to permit the alien to depart at his own expense.
Previous to determination by the local field officer whether to permit
the alien to depart at his own expense, and previous to determination by
the administrative officer as to the country to which the alien should
be deported, our order will be limited to dismissing the appeal. If the
respondent feels that the determination by either officer contravenes
his rights under the statute, he may appeal therefrom.
Order: It is ordered that the appeal from the order of the Assistant
Commissioner be dismissed.
Concurring, ROBERT E. LUDWIG, Member.
I concur in the decision of this Board directing that the appeal of
the respondent from the order of the Assistant Commissioner be
dismissed.
However, I desire to point out that there is pending before this
Board request of counsel that respondent be permitted to pay the cost of
his removal from the United States. The request of counsel was not
acted upon either by the Commissioner or by the Board. Under section 23
of the Subversive Control Act of 1950 amending section 20 of the 1917
Immigration Act it is provided that "The deportation of aliens provided
for in this act and all other immigration laws of the United States
shall be directed by the Attorney General to the country specified by
the alien * * *.' The respondent, therefore, has the privilege of
selecting the place to which he wishes to be deported. To permit him to
pay the cost of such deportation is merely a convenience, which not only
would save the appropriation of this Department, but would be a definite
saving to the taxpayers as well. I know of no reason why the
Immigration and Naturalization Service or this Board should be so
reluctant to pass on such a simple request the granting of which carries
such obvious advantages to the Government.
Seventh Proviso relief -- Section 3 of the Immigration Act of February 5, 1917, as amended -- Substitution of the discretion thereunder for the documents required by section 13 of the Immigration Act of 1924 -- Section 25 of the Immigration Act of 1924.
An alien, inadmissible because of his lack of the documentary
requirement under section 13(a) of the Immigration Act of 1924, cannot
have such documentary requirement waived by use of the discretion
contained in the seventh proviso to section 3 of the act of February 5,
1917, as amended.
Discussion: The question presented is whether an alien who is
returning to an unrelinquished domicile of 7 years in the United States,
but who is not returning to a lawful residence, may be admitted under
the 7th proviso to section 3 of the Immigration Act of 1917 (8 U. S.C.
136(p)) without the immigration visa or reentry permit required by
sections 10 and 13 of the Immigration Act of 1924 (8 U.S.C. 210 and
213(a)(b)). Counsel contends that the Attorney General has this power.
We hold the Attorney General does not. in the discussion that follows,
the 7th proviso to section 3 of the Immigration Act of 1917 will be
referred to as the "7th proviso.'
The alien concerned is a 53-year-old married male, a native and
citizen of Greece, who is now residing in Greece and who desires to
return to the United States to resume permanent residence. His
application for a nonquota visa as a returning resident alien under
section 4(b) of the Immigration Act of 1924 has been disapproved by an
American consul abroad.
The alien was lawfully admitted to the United States at New York, N.
Y., for permanent residence on July 26, 1915. The entry has been
verified. He alleges he departed from the United States about February
or March 1921, and that he returned about November 1922, as a member of
the crew of the S.S. King Alexander and deserted. This entry could not
be verified. In December 1925, he again departed and reentered with a
reentry permit on May 7, 1926. This entry was verified. The reentry
permit was based upon his original lawful entry for permanent residence
in 1915. In securing this permit his absence from 1921 to 1922 was
concealed. He again was absent from the United States from May 1931 to
April 25, 1932, when he entered upon the presentation of another reentry
permit obtained in the manner outlined above. This entry was verified.
He last departed from the United States on August 27, 1938. At the time
of departure, he was not in possession of a reentry permit. He alleges
he left suddenly to be with his wife in Greece who was reportedly,
critically ill.
On July 13, 1939, the Board of Review entered an order finding the
alien was not entitled to the reentry permits mentioned above, which he
obtained on the basis of an entry in 1915, in that there was an absence
of record of lawful admission in connection with his alleged entry in
November 1922. In effect, therefore, the decision held that the alien
was not entitled to a nonquota visa under section 4(b) of the
Immigration Act of 1924 since he was not a lawful resident of the United
States returning from a temporary absence abroad.
This Service, by letter dated June 25, 1951, informed the Department
of State that "an examination of the files of this Service indicates
that he (the alien) has maintained a (domicile) in this country since
his original entry in 1915.' This aspect of the problem need not
therefore be given fuller discussion.
Affidavit sworn to by the alien on April 17, 1938, before a vice
counsul of the United States at Athens, Greece, reveals that the alien
resided in the United States from 1915 to about March 1921 when he
returned on a temporary visit to Greece as a passenger; that in May
1921 he married in Greece; that soon after his marriage he entered the
Greek Army from which he was discharged about October 1922; that he
returned to the United States in November 1922 as a crew member; that a
party of crewmen went ashore from the vessel to purchase supplies; and
that he went with them and did not rejoin the vessel. The affidavit
reveals that the alien journeyed to the United States in 1922 as a
seaman, rather than as a passenger, because he had very little money at
the time. The affidavit contains the allegation that the affiant never
willfully concealed the fact of his journey to Greece in 1921 and his
return to the United States in 1922, in obtaining a reentry permit.
The record contains a copy of a declaration of intention subscribed
and sworn to by the alien in the United States on January 25, 1921.
Six affidavits of recent date reveal the affiants have known the
alien from about 1919; that his absences from the United States were
short; that he was regularly employed in the United States; and that
he is a person of good moral character.
The record establishes, therefore, that the alien was admitted to the
United States for permanent residence in 1915; that he never
relinquished his domicile in the United States; that he departed for
Greece about 1921 for a temporary visit; that he alleges he returned to
the United States about November 1922 as a deserting seaman; that he
was in the United States about 1922; that he thereafter departed and
reentered the United States on two occasions; and that on each of these
occasions, he was in possession of a reentrv permit obtained by
concealment of his unlawful reentry in 1922.
These are the facts upon which the Department of State found the
alien was not lawfully admitted to the United States in connection with
his last entry on April 25, 1932, and that he was therefore not entitled
to a nonquota immigration visa under section 4(b) of the Immigration Act
of 1924, as a lawfully admitted resident alien returning to the United
States from a temporary visit abroad.
Since the alien desires to enter the United States for permanent
residence, he must be regarded as an immigrant. Since he is not a
nonquota immigrant, he must be considered a quota immigrant (sec. 5 of
the Immigration Act of 1924; 8 U.S.C. 205).
No immigrant, with certain exceptions which do not apply in the
instant case, shall be admitted to the United States unless he has an
unexpired immigration visa or other permit to reenter the United States
issued in accordance with the laws and regulations (sec. 13(a) of the
Immigration Act of 1924, 8 U.S.C. 213(a); sec. 10 of the Immigration
Act of 1924, 8 U.S.C. 210). The alien is not in possession of such an
unexpired immigration visa or permit to enter the United States.
Section 13(b) of the Immigration Act of 1924 provides that an alien
who has been legally admitted to the United States and who departs
therefrom temporarily may be admitted to the United States without being
required to obtain an immigration visa. Since the alien is not an
immigrant who has been legally admitted to the United States, in
connection with his last entry which controls, this discretionary action
which is exercised jointly by the Department of State and the Attorney
General may not be exercised herein. (Matter of G , 1, I. & N. Dec. 321
(1942); U.S. ex rel. Volpe v. Smith, 289 U.S. 422 (1933)).
Upon the record therefore, it appears that the alien requires a quota
immigration visa to enter the United States for permanent residence.
Counsel contends that the Attorney General, pursuant to discretion
vested in him by the 7th proviso, may permit the alien in question to
return to the United States as an alien returning after a temporary
absence to an unrelinquished United States domicile of 7 consecutive
years, despite his lack of the immigration visa required by law of quota
immigrants.
In support of this view counsel engages in a discussion of the
history of the law and cites several court decisions and administrative
decisions.
We find nothing in counsel's able review of legislative history which
is a clear indication that Congress intended to grant administrative
officers power under the Immigration Act of 1917, to admit aliens
returning to an unrelinquished domicile of 7 consecutive years, despite
their inadmissibility under laws which may be passed in the future.
Counsel cites U.S. ex rel. Polymeris v. Trudell, 284 U.S. 279 (1932)
affirming 49 Fed.(2d) 730 (C.C.A. 2, 1931), in support of his
contention. He has quoted the language of the circuit court which would
indicate that the proper administrative official has the power under the
7th proviso to admit in his discretion, aliens returning to an
unrelinquished United States domicile of 7 consecutive years. The
language is as follows:
It follows that these aliens were properly excluded under
Section 13(a) of the Immigration Act of 1924 (8 U.S.C.A. 213(a))
since the Secretary of Labor did not admit them in his discretion
under 8 U.S.C.A., section 138(p), /1/ and neither presented an
unexpired valid immigration visa or an unexpired valid permit to
reenter in accordance with the regulations promulgated under
section 13(b) of that act.
We note from the opinion of the circuit court that although in
passing, it was stated that the proper administrative official had the
discretionary power to admit under the 7th proviso, an alien without an
immigration visa, that the court stated the issue before it as follows:
* * * The issue now is whether they could enter of right with
no return permits and no immigration visas.
It is clear therefore, that the question of discretionary power was
not a matter for adjudication before the court. Its statements
concerning discretionary relief under the 7th proviso must therefore be
viewed in this light.
We note further, that Mr. Justice Holmes in delivering the opinion of
the Supreme Court of the United States repeated the first-quoted
paragraph of the circuit court, but omitted in the quotation, any
reference to the words "under 8 U.S.C. 138(p).' Since the section of law
in which the 7th proviso is contained was omitted by the Supreme Court,
it would appear that the Supreme Court was not in agreement with the
circuit court concerning the power of the proper administrative official
to exercise 7th proviso relief in that case, involving immigrants not in
possession of immigration visas or reentry permits. The reference to
discretionary action contained in the quotation by the Supreme Court
might well be a reference to the discretionary power of the proper
administrative official to admit returning resident aliens who were
lawfully admitted and who were returning from a temporary visit abroad,
under the authority contained in section 13(b) of the Immigration Act of
1924. Be this as it may, we find nothing in the action or language of
the Supreme Court in this decision which would support counsel's
contention. The essence of the decision by the Supreme Court is
contained in the following language:
By section 13 of the act (8 U.S.C.A., sec. 213) and the
regulations under it, as remarked by the Court below, a returning
alien cannot enter unless he has either an immigration visa or a
return permit. The relators must show not only that they ought to
be admitted, but that the United States, by the only voice
authorized to express its will has said so. Obviously it has not
done so, and therefore the judgment must be affirmed. Italics
added.
It is obvious from a reference to this language that there is no
clear indication by the court that an immigrant who desires to enter the
United States may be admitted without immigration documents, under the
7th proviso if he is returning to an unrelinquished domicile of 7
consecutive years.
Counsel cites Weedin v. Ung Sue Chu, 64 F.(2d) 953 (C.C.A. 9, 1933),
in support of his contention.
In this case the circuit court of appeals held that a returning
Chinese merchant was required to present a passport to be readmitted.
The Polymeris case was quoted by the court and the following quotation
from that case was used. "The relators must show not only that they
ought to be admitted, but that the United States by the only voice
authorized to express its will has said so.'
A careful review of this case reveals there was no discussion in the
case concerning the discretionary power of the proper administrative
official to admit the alien. The sole question was whether provisions
of the Immigration Act of 1924 requiring immigrants to present visas was
in conflict with certain treaty rights. The court held there was no
conflict between the treaty and the law requiring the production of the
visa in the case of a treaty merchant. The court then cited the
Polymeris case as authority for their decision to bar the aliens from
entry since the aliens were not in possession of the proper documents.
It is therefore apparent that the court, in construing the Polymeris
case, felt it stood for the proposition that an immigrant not in
possession of an immigration visa or reentry permit was inadmissible to
the United States. We therefore, do not find the second case cited by
counsel is authority for his position.
The last court cited by counsel is Rash v. Zurbrick, 75 F.(2d) 934
(C.C.A. 6, 1935). There, the court in discussing the claim of right of
entry to return to an unrelinquished domicile of 7 consecutive years,
made the following statements:
Assuming that in the exercise of this discretion, the Secretary
may lawfully permit an alien to reenter the country without a
permit or an immigration visa or without a showing that he had
previously been lawfully admitted, we cannot say from the facts
alleged in the bill, that the hearing given the appellant was so
unfair or that the Secretary's refusal to admit him was such a
manifest abuse of discretion as to confer upon us the power to
enjoin the enforcement of the order of exclusion. Italics added.
It is therefore self-evident that the court was not passing on the
discretionary power to admit under the 7th proviso, but was assuming
such a power existed for the sake of argument, and was very careful to
show that his statement was an assumption by his use of the word
"assuming.'
Other cases cited by counsel concern administrative decisions. These
cases concern the exercise of the discretionary action under the 7th
proviso to section 3 of the Immigration Act of 1917, to remove certain
grounds of inadmissibility created by the act of 1917, and in one case
with a ground of exclusion created by the Act of February 18, 1931,
relating to traffic in narcotics (an act which the decision mentioned by
counsel points out has been judicially determined to be virtually
interdependent with the act of 1917).
With the proposition that the 7th proviso may be exercised to remove
a ground of inadmissibility created by the act of 1917 or Acts
amendatory of the Immigration Act of 1917, we have no quarrel. The
administrative decisions cited by counsel need therefore not be further
discussed.
We believe a court decision more to the point is contained in
Madokoro v. Del Guercio, 160 F.(2d) 164 (C.C.A. 9, 1947), rehearing
denied April 4, 1947, certiorari denied, October 13, 1947; 68 S.Ct.
68; 332 U.S. 764.
In this case the alien, a citizen of Japan, a person ineligible to
citizenship under the Immigration Act of 1924, entered the United States
in 1916 as an alien seaman and remained in the United States
continuously, with the exception of certain temporary visits to Mexico
in 1926, under authority of a permit issued by the Government of the
United States. After the expiration of the permit, the appellant, on
December 26, 1926, temporarily crossed into Mexico, returned on the same
day, and was admitted to the United States. The Government contended
that at the time the alien reentered without a permit he was
inadmissible under the Immigration Act of 1924 as an alien ineligible to
citizenship, and that therefore, he was deportable.
The alien contended that he was entitled to enter the United States
under the authority contained in the 7th proviso as an alien returning
after a temporary absence, to an unreliquished United States domicile of
7 consecutive years.
The court stated that section 25 of the Immigration Act of May 26,
1924, provided with reference to all the prior immigration laws, that "*
* * an alien, although admissible under the provisions of the
immigration laws other than this act, shall not be admitted to the
United States if he is excluded by any provisions of this act.' The
court therefore held, that the Immigration Act of 1924 repealed section
3 of the Immigration Act of 1917 (relating to the 7th proviso insofar as
it applied to aliens ineligible to citizenship, and that aliens to whom
the regulations relating to relief under the 7th proviso referred to by
the court as rule 12 (of the immigration regulations of 1925) are those
"otherwise admissible' under sections 10 and 13 of the Immigration Act
of 1924 referred to by the court as rule 3 (of the immigration
regulations of 1925) which required an immigrant to present an
immigration visa or reentry permit to enter the United States, with the
exception of aliens who have been previously lawfully admitted to the
United States and who are returning from a temporary visit of not more
than six months to adjacent and contiguous territory.
It is clear from section 25 of the Immigration Act of 1924 and the
opinion of the court that an alien inadmissible under the Immigration
Act of 1924 may not be admitted to the United States under the
discretion contained in the 7th proviso. This consistently has been the
view of this Service.
Therefore, since the alien's sole ground of excludability arises from
his inability to secure immigration documents under the Immigration Act
of 1924, his application for relief under the 7th proviso to section 3
of the Immigration Act of 1917, will be denied.
Order: It is ordered that the alien's application for relief under
the 7th proviso to section 3 of the Immigration Act of 1917, be denied.
(1) So in the original, however, 8 U.S.C.A. 136(p) is obviously
intended.
Discussion: The case presents an appeal from an order entered on
August 31, 1951, by the Assistant Commissioner denying the alien's
application for admission as a returning resident alien under the
authority contained in the seventh proviso to section 3 of the
Immigration Act of 1917.
The facts of the case are fully set forth in the decision of the
Assistant Commissioner. Briefly, the record relates to a native and
citizen of Greece, 54 years old, who was lawfully admitted to the United
States at the port of New York for permanent residence on July 26, 1915.
Thereafter he departed from the United States about February or March
1921 and returned from Greece about November 1922, entering as a
deserting crew member of the S.S. King Alexander. This entry could not
be verified. He next departed to Greece in December 1925 and reentered
the United States on May 7, 1926, and was admitted upon presentation of
a reentry permit which had been issued upon the basis of the original
lawful entry on July 26, 1915, the applicant apparently not revealing
his absence from the United States from February or March 1921 to
November 1922 when he returned as a deserting seaman. He again visited
Greece from May 1931 to April 25, 1932, and was again admitted upon the
presentation of another entry permit obtained under similar
circumstances. He last departed from the United States on August 27,
1938, and has since resided in Greece. He was not in possession of a
reentry permit at the time of his last departure on August 27, 1938, and
on July 13, 1939, that Board of Review held that in the absence of a
record of lawful admission on the occasion of the applicant's alleged
reentry as a deserting seaman at New York on November 1922 ex S.S. King
Alexander, the applicant was not entitled to the reentry permits he had
subsequently obtained on the basis of original lawful entry on July 26,
1915; the applicant was consequently a quota immigrant within the
meaning of section 3 of the Immigration Act approved May 26, 1924 (8 U.
S.C. 203).
It appears to be conceded that the applicant has maintained an
unrelinquished domicile in the United States since 1915 despite his
present lengthy absence since 1938. The vice consul at Athens, Greece,
has disapproved the applicant's application for a nonquota visa as a
returning resident alien under section 4(b) of the Immigration Act of
1924, because of the absence from 1921 to 1922 and the illegal reentry
of the applicant in November 1922 which terminated his prior lawful
residence in the United States. Since he was not lawfully admitted on
the occasion of his last reentry in 1932 because of the invalid reentry
permit, his case does not fall within section 13(b) of the Immigration
Act of 1924.
Counsel, however, has vigorously contended that the applicant,
despite his lack of an immigration visa which is required by law under
section 13(a) of the Immigration Act of 1924 (8 U.S.C. 213(a)) of all
quota immigrants, and despite the absence of a permit to reenter as
provided by section 10 of the Immigration Act of 1924 (8 U.S.C. 210),
the applicant may nonetheless be permitted to return to the United
States as an alien returning after a temporary absence to an
unrelinquished domicile of 7 consecutive years under the discretion
contained in the 7th proviso to section 3 of the act of February 5, 1917
(8 U.S.C. 136(p)). The Assistant Commissioner has dealt at length with
arguments advanced by counsel, and we believe that the decision of the
Assistant Commissioner is dispositive of the issue and we concur in the
conclusion that the discretion contained in the 7th proviso to section 3
of the act of 1917 cannot be substituted for the documents required by
section 13 of the Immigration Act of 1924 (8 U.S.C. 213).
The principal case relied upon by counsel, U.S. ex rel. Polymeris v.
Truedell, 49 F.(2d) 730 (C.C.A. 2, 1931), affirmed 284 U.S. 279 (1932),
does not, upon examination, sustain counsel's position. The holding in
the Polymeris case is to the effect that a returning alien cannot enter
unless he has either an immigration visa or a reentry permit. Counsel
has seized upon obvious obiter dictum used by the circuit court in
reference to the general power of the Secretary of Labor to admit under
8 U.S.C. 136(p), and by a resort to a negative inference, has sought to
sustain his argument. As we have already stated, we do not believe that
the cited case stands for the proposition advanced by counsel, and an
examination of the administrative decisions cited in counsel's brief
fails to reveal a single instance in which the discretion contained in
the 7th proviso to section 3 of the act of February 5, 1917, was used to
waive the documentary requirement of section 13(a) of the Immigration
Act of 1924. Finally, we believe that section 25 of the Immigration Act
of 1924 (43 Stat. 166; 8 U.S.C. 233), by the use of the following
quoted language is dispositive of the issue raised by counsel:
An alien, although admissible under the provisions of this act,
shall not be admitted to the United States if he is excluded by
any provision of the immigration laws other than this act, and an
alien, although admissible under the provisions of the immigration
laws other than this act, shall not be admitted to the United
States if he is excluded by any provision of this act.
Order: It is ordered that the appeal be and the same is hereby
dismissed.
Crime involving moral turpitude -- Attempt to wreck a train operated in interstate commerce -- 18 U.S.C.A. 1992.
An attempt to wreck a train operated in interstate commerce in violation of section 1992, rev. title 18 U.S.C.A. is an offense involving moral turpitude.
CHARGES:
Warrant: Act of 1924 -- No immigration visa.
Act of 1917 -- Crime within five years, to wit: Attempt to wreck a
train operated in interstate commerce.
Discussion: Respondent, age 50, is a native and citizen of Mexico.
He last entered the United States on or about October 15, 1945, at
Brownsville, Tex. At that time, he intended to remain permanently in
the United States and to seek employment. He was not in possession of
an immigration visa for permanent residence. He testified that he was
not inspected by United States immigration officers at the time of his
last entry and managed to evade inspection because he feared he would
not be permitted to enter the United States. At the time of his hearing
before a hearing officer, respondent was imprisoned at the United States
Penitentiary, Terre Haute, Ind. The hearing officer recommended that
the respondent be deported from the United States on the charges
contained in the warrant of arrest. This recommendation was approved by
the Assistant Commissioner and respondent appeals to this Board.
Respondent was sentenced in the United States District Court for the
District of South Dakota, to 1 year and a day for the crime of having
attempted to wreck a train operated in interstate commerce under section
1992, rev. title 18, U.S.C.A.
Respondent is married and is the father of two United States born
infant children. He stated that he wished to be permitted to remain in
the United States in order to care for his children. He admitted that
at the time he was taken into custody for the offense for which he is
presently serving sentence, he had been unemployed for 6 months. At the
time of his hearing, his children were being taken care of by State
welfare organizations.
The only question in this case is whether or not the crime of
attempting to wreck a train operated in interstate commerce is a crime
involving moral turpitude. The Assistant Commissioner assumed without
comment that it is such a crime. The section of the statute under which
respondent was sentenced reads as follows:
Section 1992, rev. title 18, U.S.C.A.:
Whoever willfully derails, disables, or wrecks any train,
engine, motor unit, or car used, operated, or employed in
interstate or foreign commerce by any railroad; or
Whoever willfully sets fire to, or places any explosive,
substance on or near, or undermines any tunnel, bridge, viaduct,
trestle, track signal * * * or appurtenance used in the operation
of any such railroad in interstate or foreign commerce, or
otherwise makes any such tunnel, bridge, viaduct, trestle, track,
etc., * * * unworkable, unusable, or hazardous to work or use,
with the intent to derail, disable, or wreck a train, engine,
motor unit, or car used, operated or employed in interstate or
foreign commerce; or
Whoever willfully attempts to do any of the aforesaid acts or
things --
Shall be fined not more than $10,000 or imprisoned not more
than 20 years, or both.
The statute further provides for the death penalty, or life
imprisonment in the discretion of the jury, or the court where the
accused has entered a plea of guilty, if in the commission of the crime,
death has resulted to any person.
There is no question but that the crime for which respondent was
sentenced is a crime involving moral turpitude within the meaning of the
immigration laws. Intent is an element in the statute. It is in the
criminal intent that moral turpitude inheres. The indictment expressly
stated that the crime was committed with intent. The crime of
attempting to wreck a train operated in interstate commerce is
inherently illegal, immoral, and dangerous to the public interest.
Respondent cannot now deny that he committed the crime. Regardless
of his reasons for pleading guilty, that plea is on the record, and we
must accept it. He has been found guilty in a Federal court, and we
have no authority under the law to retry the question of guilt.
Respondent is deportable on the charges stated in the warrant of
arrest.
Order: The appeal is dismissed.
Canadian Indians -- "American Indians born in Canada' -- Act of April 2, 1928 -- Effect where person of no more than one-half Indian blood.
(1) The words "American Indians born in Canada' in the Act of April 2, 1928, have an ethnological (by blood) connotation rather than a political one ("Indian, as defined by the Canadian Indian Act''). See 1, I. & N. Decs. 309, 600).
(2) A person of no more than one-half Indian blood is not entitled to the benefits of the Act of April 2, 1928.
CHARGE:
Warrant: Act of 1924 -- No immigration visa.
Discussion: The respondent was born in Biggar, Saskatchewan, Canada,
about 32 years age. He last entered the United States in August 1947 at
an unknown point on the Canadian border in order to seek employment and
remain in this country indefinitely. The issue in this case is whether
the respondent is entitled to the benefits of the act of April 2, 1928
(45 Stat. 401; 8 U.S.C. 226a), which provides:
The Immigration Act of 1924 shall not be construed to apply to
the right of American Indians born in Canada to pass the borders
of the United States: Provided, That this right shall not extend
to persons whose membership in Indian Tribes or families is
created by adoption.
If the respondent is entitled to the benefits of this act he is not
deportable from the United States. It, therefore, becomes necessary to
determine whether the respondent is an American Indian born in Canada
within the meaning of the aforesaid act of April 2, 1928. In this
connection it has been determined that the words "American Indian born
in Canada' as used in that act must be given a racial rather than
political connotation, (U.S. ex rel. Goodwin v. Karuth, 74 F.Supp. 660
(D.C., W.D., N.Y., 1947)). /*/
In determining whether the race of this respondent is that of an
American Indian, reference to certain evidence is necessary. Evidence
of record discloses that the father of the respondent was a member of
the white race. It appears that the mother of the respondent was a
full-blooded Indian, and for the purpose of this discussion it will be
conceded that she was a full-blooded Indian. The respondent's parents
were married in an Indian ceremony according to Indian custom. /1/
Respondent's father left his wife when respondent was an infant and has
not maintained either of them since that time. The respondent never
lived on an Indian reservation and received no treaty money from the
Canadian Government. His mother and he were never members of any tribe
of Indians. Respondent, while in Canada, lived in settlements of
nontreaty Indians.
The respondent is a person who possesses no more than one-half Indian
blood.
The hearing officer who heard testimony in this case referred in his
opinion to the case of H J , A-6846624, and after discussing the
evidence in the instant case concluded that the instant case came within
what he believed was an exception to the general rule stated in the said
case of H J . In that case the Central Office stated, after citing the
holding in the Goodwin case (supra), that:
The status of Canadian Indians of mixed blood has not been
determined either administratively or judicially in the light of
Goodwin v. Karnuth (supra). However, at various times the courts
have determined the status of an American Indian of mixed blood
under various statutes. This italic supplied. The United States
Supreme Court in Halbert v. United States, 283 U.S. 753 (June 1,
1931), at page 763 said "The children of a marriage between an
Indian woman and a white man usually take the status of the
father; but if the wife retains her tribal membership and the
children are born in the tribal environment and reared there by
her, with the husband failing to discharge his duties to them,
they take the status of the mother.' This case is relied upon by
Corpus Juris Secundum as authority for the following statement
which appears in 42 C.J.S., page 647, under the subject of "Who
are Indians;' "The status of half-breeds as for example the
offspring of a white father and an Indian mother usually has been
held to be that of the father, except if the mother has retained
her tribal inembership and the child was born in the tribal
environment and there reared by her, the father failing to
discharge his duties them, they take the status of the mother.' In
31 C.J., page 480, under the subject of "Who are Indians,' it is
said "As to the question of the status of half-breeds, which
usually arises in the case of the offspring of a white father and
an Indian mother, it has usually been held, adopting the
common-law rule that the child follows the condition of the
father' (citing Smith v. Bonifer, 154 Fed. 883 affirmed 166 Fed.
846; U.S. v. Higgins, 110 Fed. 609; United States v. Hadley, 99
Fed. 437; Keith v. United States, 8 Okla. 446; 58 P. 507; State
v. Nicolls, 61 Wash. 142; 112 P. 269). Corpus Juris continues:
"The child of a white citizen and an Indian mother, who is
abandoned by his father, is nurtured and reared by the Indian
mother in the tribal environment, and is recognized by the tribe
as a member of it, falls under an exception to the general rule
that the offspring follows the status of the father and becomes a
member of the tribe of the mother.' In United States v. Ward, 42
Fed. 320 it was held that the son of a Negro father and an Indian
mother is not an Indian within the meaning of the federal statute
providing for the punishment of the Indian committing certain
offenses, as the child follows the condition of the father.
In construing racial limitation provisions in the
Naturalization Laws, the courts have uniformly held that a person,
one of whose parents is white and the other of a race ineligible
for naturalization is not eligible for naturalization. (In re
Knight, 171 Fed. 299; In re Rallos, 241 Fed. 686; In re
Lampitoe, 232 Fed. 382; In re Camille, 6 Fed. 256; In re Young,
195 Fed. 645 affirmed on rehearing 198 Fed. 715.) In the case of
Camille (supra) the father was white and the mother a Canadian
Indian.
On the basis of the foregoing authorities it is concluded that
the respondent is not to be regarded as a Canadian Indian within
the meaning of the act of April 2, 1928.
The foregoing quotation may, on superficial reading, indicate that
where the child of a white father and an Indian mother is abandoned by
the father, is nurtured and reared by the Indian mother in the tribal
environment, the child becomes a member of the tribe of the mother. It
is noted, however, that the language in the quotation as well as other
language dealing with children of one-half blood related to the
interpretation of status of an American Indian "under various statutes.'
The court in the Goodwin case pointed to various statutes which
specifically provided in the definition of the term "Indians' that it
include persons of the half-blood. None of these statutes is the one
dealt with in the instant case. This latter statute was the one
discussed in the Goodwin case and it was there determined that the
racial test should apply. Therefore, the earlier language in the
quotation from the J case set forth above was merely to show various
definitions of Indians. The conclusion in the Goodwin case was that the
subject was not to be regarded as a Canadian Indian within the meaning
of the act of April 2, 1928. Political considerations and
determinations regarding Indian status were rejected by the court in the
Goodwin case.
In view of the foregoing it is apparent that the respondent being no
more than one-half Indian blood is not entitled to the benefits of the
act of April 2, 1928. He is, therefore, deportable on the charge
contained in the warrant of arrest. It does not appear that he is other
than a person of good moral character and, consequently, voluntary
departure should be authorized.
Order: It is ordered that an order of deportation be not entered at
this time but that the alien be required to depart from the United
States without expense to the Government within such period of time and
under such conditions as the officer in charge of the district deems
appropriate.
(*) Editor's Note. -- See Interim Decision #87, 3, I. & N. Dec., 191.
(1) There is no evidence to indicate, nor to we have any reason to
believe, that this ceremony does not create a valid marriage. If it did
not create a valid marriage the respondent may be an illegitimate child.
However, where the racial test is the applicable one the status of
legitimacy is immaterial (except for purposes of citizenship). It has
been asserted that the respondent's mother was born in the United States
but no evidence to corroborate that fact has been submitted.
Commuters -- Immigrants, working here (but not living here) -- 8 C. F.R. 110.6 and 8 C.F.R. 166.1 -- When immigrant status forfeited.
An alien, who worked in the United States after lawful admission for permanent residence, but commuted to his home in Canada, enjoyed for immigration purposes all the privileges of one lawfully admitted for permanent residence; nor did he forfeit his status as a legal "resident' here by being out of employment for over 6 months, since the evidence establishes that his job here had not been lost, he intended to return to his job here, and his employment was interrupted by reason of circumstances beyond his control (here illness with hospital confinement for 5 months).
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917 -- One or more attacks of insanity.
Act of 1924 -- No immigration visa.
Act of 1918 -- No passport.
Discussion: The record relates to a 60-year-old male, native and
citizen of Canada, who applied for admission into the United States at
Detroit, Mich., on December 26, 1950, and was held for examination
before a board of special inquiry which, at the conclusion of the
hearing on March 13, 1951, held him to be inadmissible on the grounds
shown above. He has appealed from such decision.
The record discloses that applicant was lawfully admitted to the
United States for permanent residence at Detroit, Mich., on October 5,
1927, and that he was in possession of an immigration visa issued
pursuant to the provisions of section 4(c) of the Immigration Act of
1924. He was admitted under General Order 86 to commute to work only.
From the summer of 1925 the applicant was engaged in employment in the
United States at Detroit, Mich., and was employed by one firm until June
19, 1950. He communted daily to work in this country from his place of
residence in Canada where he resides with his wife and two children and
the last resident alien's border crossing identification card issued to
him expired November 1, 1950. From June 19, 1950, he was absent from
his employment because of illness and was confined in a hospital in
Canada for approximately 5 months from July 14, 1950, to December 7,
1950. His illness was diagnosed as involutional melancholia. A medical
certificate issued by a physician of the Public Health Service on
January 18, 1951, states that the term "involutional melancholia' is a
form of insanity and that as of the date of the examination of applicant
there was no sign of mental deficiency. Applicant now seeks entry into
the United States to resume his employment.
Applicant is an alien belonging to that class known as commuters;
namely, persons who have their place of residence in foreign contiguous
territory and commute daily to the United States to work. It has always
been a policy of this Service to permit Canadian residents to enter the
United States to work here. Prior to April 1, 1927, they were permitted
to enter as border crossers without having been admitted for permanent
residence. As of that date the policy changed by the issuance of
General Order 86. In brief the General Order provided that aliens
entering the United States subsequent to June 30, 1924, to engage in
existing employment or to seek employment would not be considered as
visitors for business or pleasure but as aliens of the "immigrant'
class; but that if enjoying the border crossing privilege on April 1,
1927, they would be granted a reasonable period of time not to exceed 6
months from June 1, 1927, within which to obtain immigration visas.
After being admitted with visas they were to be considered as residents
of the United States for the purposes of the immigration laws.
Exceptions to the requirement of obtaining immigration visas were made
in favor of aliens who had enjoyed the border crossing privilege prior
to July 1, 1924, and were still enjoying that privilege on April 1,
1927, provided that at the time they began crossing the border they
could have been admitted under the first quota law for permanent
residence or that their border crossing began before there were any
quota restrictions, but that payment of head tax would be required in
cases where at the time of the original admission as border crossers,
head tax was assessable on aliens entering for permanent admission.
Upon payment of head tax, aliens, within this exception, were regarded
as having been admitted for permanent residence as of the date of their
original admission. The legality of General Order 86 was challenged by
some of the aliens involved, but the Supreme Court in the case of
Karnuth et al. v. United States on petition of Albro for Cook et al.
(1929) 279 U.S. 231 sustained the Government's contention that aliens
coming to this country for employment cannot be considered visitors for
business. The General Order, and its supplements are no longer in
effect, inasmuch as General Order 86 was canceled on October 2, 1930, by
General Order 164. However, the rights accrued thereunder were not
canceled. The present regulations provide that alien commuters will be
considered as aliens of the immigrant class (8 C.F.R. 110.6, formerly
paragraph 1, subdivision C of rule 3, Immigration Laws and Rules of
January 1, 1930). Alien commuters who are or have been admitted to the
United States for permanent residence, enjoy for immigration purposes
all the privileges of one lawfully admitted for permanent residence,
including the issuance of Resident Alien's Border Crossing Card. (8
C.F.R. 166.1.) /*/
However, it has been held that an alien of the immigrant commuter
class who has been out of employment in the United States for 6 months
is, notwithstanding temporary entries in the meanwhile for other than
employment purposes, deemed to abandon his status of a permanent
resident in the United States and thereafter, if he seeks to reenter is
not admissible without again qualifying for admission as a permanent
resident. The salient points to be considered in determining
abandonment of commuter's status are intention and loss of employment.
Thus it has been held that a commuter remains entitled to such
classification, notwithstanding an absence of 6 months from this country
and interruption of his work here for that long, if his employment, job,
or position has not been lost and if the interruption was due to such
uncontrollable circumstances as serious illness.
The record in the instant case establishes that applicant obtained
the status of a permanent resident by his admission into the United
States at Detroit, Mich., on October 5, 1927, in possession of an
immigration visa issued pursuant to the provisions of section 4(c) of
the Immigration Act of 1924. From the time of that admission until
sometime in June 1950, he commuted daily from Canada to his place of
employment in the United States and thereafter was absent from this
country because of his illness. His position of employment has not been
lost and according to evidence submitted his job is still being held
open for him. His absence from this country from June 1950 was due to
his serious illness and there was no intention on his part to abandon
his commuter's status. The record therefore establishes that applicant
has had the status of a permanent resident of the United States for at
least seven consecutive years and that he has not abandoned such status.
His absence was due to uncontrollable circumstances and he is seeking
to enter the United States as a returning resident to resume the
employment which is available to him. He does not appear to have any
criminal record and witnesses have testified that he is a person of good
moral character. Neighborhood investigation has been favorable.
Inquiry has failed to disclose that he has had any connection with
subversive groups. Applicant has therefore established that he has been
a person of good moral character for at least the preceeding 5 years.
His eligibility for discretionary relief under the 7th proviso to
section 3 of the Immigration Act of 1917 has been established. On the
record he is entitled to such relief.
It is therefore concluded that the discretion contained in the 7th
proviso to section 3 of the Immigration Act of 1917 will be exercised to
cover applicant's inadmissibility to the United States on the ground
that he has had one or more prior attacks of insanity. Furthermore he
will be readmitted to the United States as a legal returning resident
alien pursuant to the provisions of section 13(b) of the Immigration Act
of 1924, conditioned on a waiver of documentary requirements by the
Secretary of State. In view of the foregoing, his appeal will be
sustained.
Order: It is ordered that the appeal be sustained and the alien's
admission authorized as a returning resident under the provisions of
section 13(b) of the Immigration Act of 1924, conditioned upon the
Secretary of State granting a waiver of the documentary requirements.
It is further ordered that the alien's readmission be authorized from
time to time over a period of one year from the date of this order,
pursuant to the authority contained in the 7th proviso to section 3 of
the Immigration Act of 1917 notwithstanding his inadmissibility as one
who has had one or more prior attacks of insanity, if otherwise
admissible.
(*) Editor's note. -- In the unreported Matter of F , A-6300563,
Board of Immigration Appeals, December 30, 1946, approved by Attorney
General January 3, 1947, the Board of Immigration Appeals notes the
following: "Our policy regarding Commuters may be considered part of
reciprocal arrangements with Canada not Mexico. The Board of
Immigration Appeals went on to cite some statistics as to United States
citizens and legal residents here, commuting to work in Canada or
Mexico, as well as those commuting to work here but living there.
"Draft dodger' -- Ground of exclusion -- Section 3 of the Immigration Act of 1917, as amended -- Alien departing from the United States for the primary purpose of escaping United States Military Service -- Evidence.
The interpretation, that section 401(j) of the Nationality Act of 1940, as amended September 27, 1944, should not operate to expatriate a citizen unless the evidence clearly shows that the citizen remained outside the United States for the primary purpose of escaping United States Military Service, should be followed in the case of an alien said to have departed from the United States for that purpose and therefore excludable on seeking to return, under section 3 of the Immigration Act of 1917, as amended September 27, 1944.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917, as amended -- Departed from the United States to escape
Military Service.
Discussion: This is an appeal from an order entered by the Acting
Assistant Commissioner July 3, 1951, affirming appellant's exclusion at
the port of Detroit, Mich., on January 17, 1951, on the grounds stated
above. The appellant's exceptions to the order are stated in a letter
directed to this Board under date of July 17, 1951.
The appellant is a native and citizen of Canada, male, 21 years of
age, who originally entered the United States at the age of 4 years with
his mother at Niagara Falls, N.Y., in 1934. The entry was not a lawful
admission for permanent residence. He resided in the United States from
1934 to November 1, 1950, when he returned to Canada to reside.
The board of special inquiry has found the applicant inadmissible to
the United States under the provisions of section 3 of the Immigration
Act of 1917, as amended, in that he departed from the United States to
escape military service. The appellant repeatedly testified during the
hearing that the purpose of his going to Canada on November 1, 1950, was
because he desired to join the Canadian Merchant Marine. We have
repeatedly held in cases arising under section 401(j) of the Nationality
Act of 1940 that this section should not operate to expatriate a citizen
unless the evidence clearly shows that the citizen remained outside the
United States for the primary purpose of escaping Military Service,
(Matter of G M , A-6605457, May 15, 1947 (2, I. & N. Dec. 861); Matter
of D R , A-6489137, May 22, 1947; Matter of K S , A-6661544, July 1,
1947). We are of the opinion that a similar interpretation should be
followed in the case of an alien departing from the United States.
The appellant testified that he had made inquiry about joining the
American Merchant Marine but due to the fact that he was not an American
citizen and had no experience, this service was closed to him. He
further testified that his only hope was to join the Canadian Merchant
Marine and to make that possible he would have to move to Canada. He
further stated that since he was residing unlawfully in the United
States and being a Canadian citizen his return to Canada was necessary
in order to correct his status as otherwise he would be subject to
deportation. He testified that he reached this decision "possibly a
year and possibly a little more' prior to his departure in November
1951.
Evidence of record establishes that the appellant informed his local
draft board concerning his departure and forwarded his address in Canada
to them. He was ordered on March 5, 1951, to report for examination on
March 15, 1951. There is also a showing that the appellant discussed
his case with the Canadian consul who advised him that under the
circumstances he would be placed in an inactive category (4(c)
classification) in accordance with Selective Service regulations. Since
the evidence established that persons in the age group of the appellant
were not reached for call to service until March 1951, 4 months after
the date of his departure it does not follow that the facts of the case
reasonably give rise to the inference that the appellant was motivated
by a desire to escape military service when he departed. We think a
preponderance of the evidence shows that the appellant departed for
Canada for the primary purpose of establishing his eligibility to join
the Canadian Merchant Marine and to correct his immigration status in
order that he may return to the United States on Canadian vessels as a
seaman. The ground of inadmissibility is not sustained by the evidence
of record.
Order: It is directed that the appeal be and the same is hereby
sustained.
"Subversive' -- Exclusion ground -- Section 5, act of October 16, 1918, as amended by section 22 of the Internal Security Act of 1950 -- Mere subscription to an official news organ of a proscribed organization.
A mere subscription to the Canadian Tribune, the official organ of the Labor Progressive Party of Canada, does not, of itself, establish a ground of inadmissibility comprehended within the provisions of the act of October 16, 1918, as amended by the Internal Security Act of 1950.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1918, as amended -- Subscribe to Canadian Tribune.
Discussion: The applicant, native of Poland, naturalized citizen of
Canada, 28 years old, male, resident of Montreal, Canada, applied for
admission to the United States as a temporary visitor on January 23,
1951. Inspection was deferred and on February 20, 1951, the applicant
was notified that he had been temporarily excluded from the United
States under section 5 of the Immigration Act of October 16, 1918, as
amended by section 22 of the Internal Security Act of 1950. Thereafter
it was ordered that a hearing be held before a board of special inquiry
to determine the applicant's admissibility into the United States. At
the conclusion of the hearing held April 9, 1951, the applicant was
found to be inadmissible to the United States on the ground stated above
and the case comes forward on appeal from the excluding decision.
The finding of inadmissibility was predicated upon the applicant's
admitted subscription to the Canadian Tribune. The applicant admitted
that about 1946 he had paid a dollar for a year's subscription to the
Canadian Tribune. The applicant stated that he knows now that the
Canadian Tribune is the official organ of the Labor Progressive Party of
Canada, and that he knew that the publication had to do with communism,
but asserted that he did not know whether the publication was really
Communist or not. The applicant stated he continued to receive the
Canadian Tribune for perhaps as long as 9 months, but that he has not
received it since 1947 or 1948. He denied membership in the Labor
Progressive Party or the Communist Party, and disclaimed any interest in
Communist or totalitarian philosophy or ideology. He denies voting for
any Communist Party member.
It is quite apparent that the sole reason for the finding of
inadmissibility by the board of special inquiry rests upon the
applicant's admitted subscription to the Canadian Tribune. It is not
believed that a mere subscription to a newspaper can be said to
constitute a donation to a proscribed organization so as to constitute
affiliation as that term is defined in the act of October 16, 1918, as
amended by the Internal Security Act of 1950. It is to be recognized
that a mere subscription is involved in this case, and not a donation to
the Canadian Tribune fighting fund or to the Canadian Tribune financial
fund, the latter of which might be construed as affiliation with the
Canadian Tribune Publishing Co. It is noted that the nature of the
Canadian Tribune Publishing Co. has not been established by evidence in
the record; however, it is not deemed necessary to establish the nature
of that organization.
Upon a full consideration of all the evidence, it is concluded that a
mere subscription to the Canadian Tribune does not establish a ground of
inadmissibility comprehended within the provisions of the act of October
16, 1918, as amended by the Internal Security Act of 1950. Accordingly,
the appeal will be sustained.
Order: It is ordered that the appeal be sustained.
Crime involving moral turpitude -- Sending threatening letter through mails, with intent to extort (1932) 18 U.S.C. 338, 338a -- Theft by bailee (1943) -- Article 1429, volume 3, Vernon's Annotated Penal Code of Texas.
(1) Sending threatening letters through the United States mails with intent to extort money from the addressee, contrary to the provisions of 18 U.S.C. 338, 338a, is an offense involving moral turpitude (1932).
(2) Theft by bailee (1943) in violation of article 1429, Vernon's Annotated Penal Code of Texas, is an offense involving moral turpitude.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1940 -- No visa, reentry permit or border crossing identification card.
Act of 1917 -- Convicted of and admits commission of crimes involving
moral turpitude -- Sending threatening letters through the United States
mail with intent to extort money; Theft by bailee.
Discussion: Appellant, a 60-year-old native and citizen of Mexico,
originally came to the United States in 1909; he was admitted for
permanent residence on August 24, 1917, and lived here continuously
until February 15, 1950, when he went to Mexico to visit a daughter.
Appellant sought to resume his residence the following day but was
excluded by a board of special inquiry on May 23, 1950, at Brownsville,
Tex. This finding was affirmed by the Acting Assistant Commissioner on
July 7, 1950, with this Board remanding the case to the Immigration
Service on August 22, 1950, for inclusion in the record of a copy of
appellant's conviction for theft and also for a new character
investigation.
Additional hearings were subsequently held with the result that the
Acting Assistant Commissioner again affirmed the excluding decision of
the board of special inquiry on April 13, 1951, on the above-enumerated
charges.
According to the record, on December 7, 1932, appellant pleaded
guilty in the United States District Court, Southern District of Texas,
to a charge of sending threatening letters through the United States
mail with intent to extort money from the addressee, contrary to the
provisions of 18 U.S.C. 338, 338a. Appellant was sentenced to
imprisonment for a period of 1 year, with the sentence being suspended
on condition that he maintain good behavior for 5 years. This crime
appears to be one involving moral turpitude (Brewer v. United States,
290 Fed. 807 (C.C.A. 2, 1923)). See also, Hyde v. United States, 198
Fed. 610 (C.C.A. 8, 1912); Horman v. United States, 116 Fed. 350 (C.C.
A. 6, 1902); Yusem v. United States, 8 F.(2d) 6 (C.C.A. 3, 1925); Linn
v. United States, 234 Fed. 543 (C.C.A. 7, 1916).
The record also shows that appellant was convicted on June 1, 1943,
on a plea of guilty, of theft by a bailee and fined by the justice of
the peace, Court of Cameron County, Tex., in the amount of $18.45.
Appellant admits committing this crime, saying that he sold a saw which
was left with him for sharpening, but has made restitution. The
evidence of this conviction is based upon the court docket book only,
since the remaining court and police department records were
incompletely kept until a very recent date.
Article 1429, Vernon's Annotated Penal Code of Texas, provides as
follows:
Theft -- Conversion by bailee. -- Any person having possession
of personal property of another by virtue of a contract of hiring
or borrowing, or other bailment, who shall, without the consent of
the owner, fraudulently convert such property to his own use with
intent to deprive the owner of the value of the same, shall be
guilty of theft, and shall be punished as prescribed in the Penal
Code for theft of like property (Act of 1887).
According to the wording of the statute and the construction placed
on it by the Texas courts, the criminal intent to deprive the owner of
his property is an essential element of the crime. It has also been
held that the term "conversion' connotes that the goods, obtained
through the bailment contract, have been appropriated by the defendant
to his own use, thus permanently depriving the owner of their enjoyment,
(Lee v. State, 81 Tex.Crim.Rep. 117, 129 (1917)). See also, Moses v.
State, 147 Tex.Crim.Rep. 206, 179 S.W.(2d) 558 (1944); Krause v. State,
151 Tex.Crim.Rep. 197 (1947); Marshall v. State, 108 Tex. Crim.Rep.
561, 2 S.W.(2d) 233 (1928); Creale v. State, 71 Tex.Crim. Rep. 9
(1913); Dunlap v. State, 143 Tex.Crim.Rep. 601 (1942). Since it has
long been accepted that moral turpitude inheres in the intent, /1/ the
offense, defined in article 1429, is a crime involving moral turpitude.
For these reasons, appellant is clearly excludable as an alien
seeking entry without the appropriate documents (sec. 13(a)(1), act of
1924); as an alien who has been convicted of the crime of sending
threatening letters through the United States mails (sec. 3, act of
1917); and as an alien who both admits the commission of and has been
convicted of theft by a bailee (sec. 3, act of 1917).
Appellant's wife died in 1935 and all his children are grown, with
one daughter residing in Mexico. His family, especially one daughter in
this country with whom he lived previously, has expressed a wish to make
a home for appellant if he is allowed to stay here. Aside from
intermittent arrests for drunkenness, appellant has had a clear record
since the 1943 conviction. The independent character investigation,
conducted by the Immigration Service, revealed no evidence considered
derogatory.
A determination of whether discretionary action should be taken in a
particular case requires that all the circumstances involved must be
considered. Admittedly, appellant's two criminal convictions are the
chief unfavorable factors in the record, but these occurred 8 and 19
years ago.
Notwithstanding these unfavorable facts, we feel that the record
tends to show that the appellant has lived a generally quiet,
law-abiding existence in recent years and has not shown himself to be a
disturbing influence in his community. We feel that all the
circumstances involved in the instant case tend to indicate that
appellant certainly is not a criminal in the popular sense of the term
and has adequately succeeded in a conscientious effort at rehabilitation
during the past 8 years, since his conviction for theft.
While a character investigation revealed that appellant has been
arrested for drunkenness several times in recent years, this infraction
is not considered serious enough to disturb a favorable determination.
Furthermore, the controlling factor in the present case is appellant's
long residence in the United States of 41 years, which would render any
adjustment to a new environment difficult at the age of 60.
Hence, we conclude that appellant should not be required to make this
adjustment, even though he has no one in this country financially
dependent upon him. Also, it would seem unduly harsh to rob appellant
of the care and companionship which his United States resident children
have offered him.
Therefore, we will direct an advance exercise of the 7th proviso to
section 3, act of 1917, and authorize appellant's prompt admission,
(Matter of V I , A-3328982 (March 31, 1949; 17 L.W. 2465)).
Order: It is ordered that when the alien applies for admission to
the United States, he be admitted under the 7th proviso to section 3 of
the Immigration Act of 1917, if otherwise admissible than as one who has
been convicted of and admits the commission of crimes involving moral
turpitude, to wit: Sending threatening letters through the United
States mails, committed between May 25 and May 30, 1932; and theft by
bailee, committed prior to June 1, 1943, subject to revocation in the
discretion of the Attorney General, after hearing, if the alien
hereafter commits any crime.
(1) 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).
Editor's note. -- Mailing threatening communication with intent to
extort in violation of 18 U.S.C. 338a(a) was held to be an offense
involving moral turpitude; likewise as to mailing an extortion letter
in violation of 18 U.S.C. 876 (unreported Matter of K , A-3300262, B.I.
A., May 18, 1951). It is to be noted that in 2, I. & N. Dec. 196, 18
U.S.C. 338a(b) was involved.
Citizenship -- Acquisition at birth by illegitimate child born abroad after January 12, 1941, of a native-born citizen mother -- Section 205 of the Nationality Act of 1940 -- Effect of subsequent legitimation through marriage of parents.
(1) A child born abroad out of wedlock after January 12, 1941, acquires the nationality status of the mother at the time of such birth if the mother was then a national of the United States who previously had resided in the United States or in any of its outlying possessions.
(2) United States nationality so acquired (as in (1) above) is not divested by subsequent establishment of paternity by legitimation or by adjudication of a competent court.
(3) A child, born in Portugal in 1942, of a native-born citizen mother who married the putative alien father in 1947, acquired United States citizenship at birth under the provisions of the second paragraph of section 205 of the Nationality Act of 1940, and such citizenship status was not divested by the apparent legitimation of the child through the marriage in 1947 of the actual parents.
(4) A child born abroad out of wedlock on or after May 24, 1934, and before January 13, 1941, acquired United States citizenship at birth if the mother was then a United States citizen who had previously resided in the United States (sec. 1, act of May 24, 1934). See Interim Decision #195, 3, I. & N. Dec. 485.
(5) A child born abroad out of wedlock before January 13, 1941, to whom citizenship did not descend at birth under the act of May 24, 1934, did acquire on January 13, 1941 (whether over 21 or not on January 13, 1941), the nationality status of the mother as of the date of such birth, if the mother was a United States national when he was born and had previously resided in the United States or in one of its outlying possessions, provided the paternity of the child was not established prior to January 13, 1941, and during the child's minority by legitimation or adjudication of a competent court.
(6) Citizenship status so acquired (under (5) above) on January 13,
1941, is not affected by the subsequent (to January 13, 1941),
establishment of paternity by legitimation or adjudication of a
competent court.
Discussion: The above-named subject has filed a petition for
issuance of immigration visa on behalf of her husband, A M , and her
daughter, M , and her son, I .
The question presented is whether the children are citizens of the
United States.
The record shows that the petitioner was born in Massachusetts on
September 29, 1919; that she was taken to Portugal in 1921; that she
had two children born out of wedlock in Portugal, M H , born on November
12, 1937, and I , born on September 14, 1942; that the father of said
children was A P M , whom the petitioner married in Portugal on December
7, 1947; that petitioner's husband is an alien, having been born in
Portugal; that under the law of Portugal, both children are considered
to have been legitimated through the marriage of the petitioner to her
husband, A , the father of said children; that the petitioner resided
and was domiciled in Portugal from 1921 until December 23, 1947, when
she re-entered the United States as a United States citizen, not having
been expatriated since her birth in this country.
The record further shows that this Service on May 13, 1949, approved
the subject's visa petition in behalf of her husband according him a
nonquota status under section 4(a) of the Immigration Act of 1924, as
amended, but rejected her visa petition in behalf of the two children on
the ground that they were citizens of the United States at birth, the
daughter, H , who was born on September 12, 1937, being a citizen under
section 1993, Revised Statutes, as amended, and the son, I , born on
September 14, 1942, being a citizen under the provisions of section 205
of the Nationality Act of 1940.
On February 23, 1950, a letter was written to this Service in behalf
of the petitioner, enclosing a copy of a memorandum dated February 15,
1950, addressed to the subject's husband from the American consulate at
Oporto, Portugal. This memorandum stated that the child, I , did not
appear to be a citizen of the United States under section 201(g) of the
Nationality Act of 1940 because the subject, the child's mother, had not
been a resident of the United States for 10 years prior to the birth of
said son. The memorandum suggested that since the subject had already
petitioned regarding said son, that this Service be informed of the
substance of the aforesaid memorandum and that inquiry should be made as
to what procedure should be followed to receive approval for a nonquota
status in behalf of said son.
On April 21, 1950, the subject was informed by this Service that upon
review of her case, her son, I , had a claim to United States
citizenship under the provisions of section 205 of the Nationality Act
of 1940; that the Department of State was being informed of the Service
opinion; that, however, the determination of the son's citizenship
status was within the province of the Department of State, since he was
residing abroad; and suggesting that the subject's husband again
communicate with the American Consul at Oporto, Portugal to ascertain
whether a United States passport might be issued to the son.
In the Service letter of April 21, 1950, to the Department of State
the Service concluded that since the child's mother had the nationality
of the United States at the time of the child's birth and had previously
resided in the United States, the child, I , acquired American
citizenship at the time of his birth under the second paragraph of
section 205 of the Nationality Act of 1940 and that it was not
considered by this Service that he would be divested of his citizenship
because of his apparent legitimation in 1947 through the marriage of his
parents. The Department of State was at the same time requested to
inform this Service as to the basis for its conclusion that the child I
, was not a citizen of the United States in order that further
consideration might be given to the visa petition insofar as the child
was concerned.
On November 17, 1950, the Department of State informed this Service
as follows:
While the Department concurs in the holding of the Immigration
and Naturalization Service that the child, M H P M , acquired
American citizenship under the provisions of section 1993 of the
Revised Statutes of the United States, as amended, it does not
concur in the conclusion that the child, I P M , has a valid claim
to the nationality of the United States. With reference to the
statements in the letter of April 21, 1950, from the Immigration
and Naturalization Service to the effect that since the mother of
I P M was an American citizen at the time of the child's birth in
Portugal on September 14, 1942 and had previously resided in the
United States, the child acquired American citizenship at birth
under the second paragraph of section 205 of the Nationality Act
of 1940 and that such child would not be considered as having been
divested of his citizenship because of his apparent legitimation
in 1947 through the marriage of his alien father and citizen
mother, this Department takes the view that I P M was not divested
of his claim to the nationality of the United States by the
establishment of his paternity by legitimation, but rather that
since the statutory requirement of the first paragraph of section
205 of the Nationality Act, requiring that the American citizen
parent of a child who is born abroad out of wedlock and whose
paternity is established during minority by legitimation or
adjudication of a competent court must fulfill the residence
requirements of section 201(g) of the same act in order to confer
American citizenship upon the child, has not and cannot be met by
Mrs. M , there is no basis for concluding that I P M can be
considered as having acquired the nationality of the United States
under the provisions of section 201(g) of the Act.
In view of the foregoing, the Department concurs in the
findings of the American Consular Officer at Oporto, Portugal,
that the child I does not appear to be an American citizen.
Accordingly, this child would not be entitled to receive a
passport of this Government. In the circumstances, the
Immigration and Naturalization Service may desire to give further
consideration to the visa petition of Mrs. M to include the name
of her child, I .
Since there is no question as to the status of the husband and the
daughter, M , the only issue involved is the status of the son, I . It
is evident from the foregoing that there is now a definite difference of
opinion between the Department of State and this Service as to the
interpretation to be placed upon the second paragraph of section 205 of
the Nationality Act of 1940.
Section 205, which appears under the heading "Illegitimate Children,'
provides that --
The provisions of section 201, subsections (c), (d), (e), and
(g), and section 204, subsections (a) and (b), hereof apply, as of
the date of birth, to a child born out of wedlock, provided the
paternity is established during minority, by legitimation, or
adjudication of a competent court.
In the absence of such legitimation or adjudication, the child,
whether born before or after the effective date of this act, if
the mother had the nationality of the United States at the time of
the child's birth, and had previously resided in the United States
or one of its outlying possessions, shall be held to have acquired
at birth her nationality status (54 Stat. 1139-1140; 8 U.S.C.
605).
It is significant to note that these provisions of sections 201 and
204 mentioned in section 205 specifically refer to "parents,' and
therefore of necessity mean both legal parents and apply only to
legitimate children thereof. They do not refer to "mother' or "father'
as such, but to "one parent,' or "both parents'.
It is the view of this Service that a child born out of wedlock
outside of the United States and its outlying possessions on or after
January 13, 1941, acquires the nationality status of the mother, at the
time of such birth, if the mother was then a national of the United
States who previously had resided in the United States or in any of its
outlying possessions and furthermore, that United States nationality so
acquired is not divested by subsequent establishment of paternity by
legitimation or by adjudication of a competent court.
It is also the view of the Service that a child born out of wedlock
outside of the United States and its outlying possessions on or after
May 24, 1934, and before January 13, 1941, acquired United States
citizenship at birth if the mother was then a United States citizen who
had previously resided in the United States (sec. 1, act of May 24,
1934). Furthermore, it is also the Service view that a child born out
of wedlock outside the United States and its outlying possessions, prior
to January 13, 1941, to whom United States citizenship did not descend
at birth under the Act of May 24, 1934, acquired on January 13, 1941,
the nationality status of the mother, as of the date of such birth, if
the mother was then, at the time of the child's birth, a national of the
United States who had previously resided in the United States or in one
of its outlying possessions, provided the paternity of the child was not
established prior to January 13, 1941, and during the child's minority
by legitimation or adjudication of a competent court. The Service
further holds that this status is assured by the retrospective
provisions of the Nationality Act of 1940, notwithstanding the contrary
principle, which previously was established for births prior to May 24,
1934, and on January 13, 1941, it operated to bestow United States
nationality, as of the date of birth, upon children previously born out
of wedlock to mothers of that nationality status, whether or not such
children were beyond their minority on January 13, 1941. As to these
cases it is the Service view that when nationality has been so conferred
on January 13, 1941, the child's status is not affected by subsequent
establishment of paternity by legitimation or adjudication of a
competent court.
It appears clear from the language of section 205 of the Nationality
Act of 1940, that the first paragraph thereof is applicable only to
persons born on or after January 13, 1941. The language "provided the
paternity is established during minority, by legitimation or
adjudication of a competent court' in the first paragraph means no more
than that if the identity of the father is established by legitimation
or adjudication, such father shall be regarded as one of the parents for
the purpose of the designated subsections in sections 201 and 204.
Insofar as the second paragraph of section 205 is concerned, an
illegitimate child born before January 13, 1941, to an American mother
of the class specified became an American citizen as of the date of
birth if it was not legitimated before January 13, 1941. Obviously too,
a child born to such a mother on or after January 13, 1941, became a
citizen at birth, and subsequent legitimation would not divest it of
citizenship because that status had already vested at birth.
Prior to the Nationality Act of 1940 the Department of Justice and
State were not in agreement as to the citizenship of an illegitimate
child born of an American mother outside of this country. It was
undoubtedly the purpose of the second paragraph of section 205 of the
Nationality Act of 1940 to conclude that disagreement and give to such
child, at birth, the nationality status of its mother.
The foregoing Service view was followed in the case of Matter of M D
, A-6910783, C.O., February 1, 1949 (3, I. & N. Dec. 485), which held,
among other things, that the subsequent legitimation of the applicant,
who was born in 1933 to a United States citizen mother, by the 1944
civil marriage of the parents had no expatriatory effect upon the child
since the child acquired United States citizenship at birth.
In view of the foregoing, it is concluded that the child, I ,
acquired United States citizenship at birth on September 14, 1942, under
the second paragraph of section 205 of the Nationality Act of 1940. The
subsequent legitimation by the parents' marriage on December 7, 1947,
had no effect upon the child's vested status since he acquired United
States citizenship at birth. It is not believed that it was the intent
of Congress to first bestow United States citizenship status upon such
child at birth and then, because of legitimation or adjudication of
paternity during minority, take that citizenship status away and make
the child an alien. There can be no disagreement with the congressional
intent in making it possible, however, for such illegitimate child,
whose mother was an alien and whose father was a United States citizen,
to claim United States citizenship through the father, under the first
paragraph of section 205 where legitimation or adjudication takes place
during minority, for in that manner, it permits an alien child to
acquire United States nationality through the citizen parent. There is
no apparent reason to take away United States citizenship once given at
birth, where the mother of such child was a United States citizen at the
time of the child's birth and had previously resided in the United
States or one of its outlying possessions. To hold otherwise would
undoubtedly lead to many strange results. For example, such
illegitimate child, while a minor, could have been coming in and out of
the United States as a United States citizen on numerous occasions;
could have enlisted in the Armed Forces of the United States as a United
States citizen and been stationed in a foreign country, etc., then
suddenly, just before his 21st birthday, his mother could marry his
father and that legitimation would result in converting the child into
an alien, if the view of the Department of State applied. It does not
seem plausible that Congress would intend that such child would have to
apply for admission to the United States as an alien immigrant, after
having enjoyed United States citizenship from the time of birth.
Accordingly, since the child, I , acquired United States citizenship
at birth, the visa petition executed in his behalf must necessarily be
denied. It is believed that the view of the Department of State in
denying said child the status of a United States citizen, is not proper.
Order: It is hereby ordered that the visa petition executed in
behalf of the petitioner's son, I , be denied.
It is further ordered that the Department of State be informed of the
foregoing.
Suspension of Deportation -- Section 19(c) of the Immigration Act of February 5, 1917, as amended -- "Serious' economic detriment.
Suspension of deportation under section 19(c)(2)(a) of the Immigration Act of February 5, 1917, as amended will not be granted, when, on all the facts, it is found that there does not exist a degree of economic detriment sufficient to warrant such grant on the basis of "serious' economic detriment.
CHARGE:
Warrant: Act of 1924 -- Remained longer -- Visitor for business.
Discussion: This record relates to a 44-year-old married male, a
native and citizen of Greece, who last entered the United States at the
port of New York, N.Y., on September 24, 1945, via plane as a passenger
and was admitted as a visitor for business for 1 year. His temporary
stay was extended to September 16, 1947, and he was subsequently denied
any additional extension of stay but was granted permission to depart
voluntarily on or before March 16, 1948. He has never been admitted to
the United States for permanent residence. His only other entry was for
a temporary visit of 3 months in 1935. As the alien has remained in the
United States without authority beyond the time for which he was granted
temporary stay in the United States, he is subject to deportation on the
charge set forth in the warrant of arrest.
Upon consideration of the entire record, including exceptions taken,
the findings of the officer conducting the hearing, as to deportability,
are hereby adopted.
The respondent has applied for suspension of deportation. The record
discloses that the alien was legally married to M V on September 10,
1947, in New York City, N.Y. The immigration status of his wife was
adjusted to that of a permanent resident under the suspension procedure,
on September 22, 1950. Respondent and his wife were previously married.
The respondent's first marriage was terminated by divorce in Athens,
Greece, in 1945 and his present wife's prior marriage was ended on the
death of her husband in New York City, N.Y., in 1942. The respondent
and his wife have no children of their marriage although his wife has
three children of her first marriage. According to the record the
respondent has an annual income of between $5,000 and $6,000 from a real
estate corporation in which he owns all the stock and which he values at
approximately $130,000. In addition, the respondent receives dividends
amounting to $1,000 per annum from investments in other stocks valued at
about $20,000 to $25,000. The total annual income at present is in the
neighborhood of $8,000. It is noted, however, that the subject is a
playwright and that one of his plays is now in production. It is
reasonable to assume that, if successful, further income will be derived
therefrom.
The respondent's wife has testified that she is not employed. Her
assets in the United States amount to approximately $1,500,000. She has
an independent income therefrom which appears to be in excess of
$50,000. She stated that she is dependent on respondent for advice in
connection with her financial investments and that if he were deported
she would be deprived of his guidance and would be compelled to seek
costly legal assistance. In addition, it is asserted that their
separation would entail the maintenance of two separate households.
Furthermore, it has been shown that the respondent's wife has an
investment of approximately $67,000 in the production of a play written
by the respondent. It is asserted that because of the nature of the
play, a psychological allegory, it is essential for the author to
personally attend the various production meetings connected with the
play. In support of that contention an affidavit has been presented
from the play director, who is also a partner in the enterprise. The
director contends that the deportation of the respondent might well
result in the failure of the play with an accompanying loss of the
financial investment made therein. We regard this claim with some
scepticism, however, as the play director's affidavit further shows that
the play has already had "road tryouts' as a result of which it was
necessary to engage another author to revise the script. It is
estimated that the respondent's wife would suffer a loss of
approximately $100,000 as a result of his deportation. This figure is
apparently obtained by computing the expenses which would be incurred in
obtaining financial counsel other than the respondent, plus the
financial loss from the play.
To summarize, the alien seeks suspension of deportation alleging
serious sconomic detriment would result to his alien spouse if he were
deported. His wife's status was adjusted to that of a permanent
resident less than 1 year ago through suspension of deportation. She
has assets independent of her husband, of well over 1 million dollars.
A yearly income is derived therefrom of sufficient amount to maintain
her most comfortably. The respondent also has an income sufficient for
ordinary needs. It is alleged that his wife's income will be depleted
if his counsel is lost to her. No proof as to this has been submitted
and, on the facts before us, we do not regard this claim too seriously.
We have already commented on our doubts as to the validity of the
further claim that money invested in the respondent's play will be lost
if he is deported. On all the facts, we find that there does not exist
a degree of economic detriment sufficient to warrant granting suspension
of deportation based solely thereon. As the respondent does not
otherwise qualify for that relief, his application will be denied.
As the respondent is chargeable to a quota that is oversubscribed at
the present time he could not readily obtain an immigration visa if
granted the privilege of voluntary departure. For that reason
preexamination may not be authorized.
A check of the appropriate local and Federal records has failed to
reveal an arrest or criminal record. Inquiry has disclosed that the
alien has no connection with any subversive groups. Witnesses have been
produced to establish that the respondent has been a person of good
moral character for the preceding 5 years. On the record the alien has
established eligibility for voluntary departure and that privilege will
be authorized.
Order: It is ordered that the suspension of deportation be denied.
It is further ordered that an order of deportation be not entered at
this time but that the alien be required to depart from the United
States without expense to the Government within such period of time and
under such conditions as the officer in charge of the district deems
appropriate. /*/
(*) Editor's note. -- The Attorney General on January 22, 1946,
disagreed with a finding by the Board of Immigration Appeals that
deportation in (unreported) Matter of P , A-2153254, B.I.A. January 18,
1946, would result in a serious economic detriment to the citizen spouse
and found the record failed to support such a finding (whereupon the
B.I.A. granted voluntary departure and pre-examination on February 13,
1946). The citizen spouse had about $30,000 tied in her husband's
business (he had about $40,000 in it), the business yielded about
$100,000 a year (he had other assets valued at $74,000); the business
allegedly centered on his personal services and she was not qualified to
take over its responsibilities. Her support came from this business.
"Hearing' in expulsion proceedings -- Validity of hearing held after enactment of act of September 23, 1950, and act of September 27, 1950, but before the publication of pertinent regulations respectively in the Federal Register on November 28, 1950 (which regulations were declared effective on September 23, 1950), and on November 10, 1950 (which regulations became effective then, but were declared to cover hearings after September 27, 1950).
(1) A warrant hearing held on October 10, 1950 (subsequent to February 20, 1950, the date of decision in Sung v. McGrath, 339 U.S. 33) is not deemed invalid, though conducted pursuant to the requirements of the above Sung decision. Since the enactment of the act of September 27, 1950 (P.L. 843, 81st Cong.) relaxed rather than increased the requirements incident to the conduct of such a hearing by removing deportation proceedings from the purview of the provisions of section 5, 7, and 8 (5 U.S.C. 1004, 1006, 1007) of the Administrative Procedure Act of 1946.
(2) Neither is such warrant hearing held on October 10, 1950 deemed invalid though the enactment of the act of September 23, 1950 (the Internal Security Act of 1950) amending section 20 of the Immigration Act of February 5, 1917, as to which country the alien shall be deported occurred before such hearing, and the publication of pertinent regulations thereunder on November 28, 1950, occurred subsequent to such hearing, it being noted these regulations were declared to be effective as of September 23, 1950, and the hearing officer having made no findings in his written decision on December 11, 1950, to which country the alien shall be deported was acting in conformance with the above regulation in force by December 11, 1950.
(3) Reading of the record compels the conclusion it fully conforms to
the formalities of present law and present regulations, and to conduct a
rehearing as requested by counsel would be an idle thing.
Discussion: The Assistant Commissioner has ordered that the
respondent be deported and in doing so has denied the application for
voluntary departure. Appeal has been taken to us from that order.
The respondent is a native of Turkey, citizen of Greece, who last
entered the United States at Baltimore on May 14, 1949, as a seaman.
The basis for the order of deportation is that the alien has remained
here longer than permitted by the terms of his admission.
We heard counsel in oral argument, during which he attacked the
validity of the hearing. He made known that the relief he seeks is a
grant of voluntary departure without an order of deportation. The
hearing was held on October 10, 1950, /1/ subsequent to the enactment on
September 23, 1950, of the Internal Security Act and the enactment on
September 27, 1950, of Public Law 843, 81st Congress, and prior to
modification of pertinent provisions of the regulations bringing them
current with the law as changed by those enactments. /2/
He concedes, as we understand him, that the hearing conformed to the
requirements existent prior to the enactments cited, but contends that
hearings can be held only under validly existing regulations and under
existing law. He seeks a ruling concerning the alleged impropriety of
holding a hearing during the interval involved and seeks relief in the
form of voluntary departure without an order of deportation.
Public Law 843 removed deportation proceedings from the provisions of
sections 5, 7, and 8 of the Administrative Procedure Act (5 U.S.C.
1004, 1006, 1007). It thus relaxed, rather than increased, the
requirements incident to the conducting of a deportation hearing.
Hence, counsel's objection is without substance insofar as it involves
that statute.
The provision contained in the Internal Security Act pertinent to
counsel's objection is the following:
SEC. 23. Section 20 of the Immigration Act of February 5, 1917,
* * * is hereby amended to read as follows:
"SEC. 20. (a) That the deportation of aliens provided for in
this act and all other immigration laws of the United States shall
be directed by the Attorney General to the country specified by
the alien, if it is willing to accept him into its territory;
otherwise * * *. No alien shall be deported under any provisions
of this act to any country in which the Attorney General shall
find that such alien would be subjected to physical persecution.'
* * *
To quote from counsel's argument:
"* * * it is of the utmost importance that the alien himself
testified that he would be subject to persecution if he were
returned to Greece, and it was just forced aside and no finding
whatsoever was made with respect to it by the hearing examiner.
Now, under the new regulations and under the McCarran Act, if it
had been properly set forth, there should be a finding, and as the
court of appeals in the second circuit has held in the Harisiades
decision (187 F.(2d) 137, 142 February 6, 1951), there must be a
finding by the Attorney General with respect to that phase of the
McCarran Act; and yet that was not done here. I say in that
respect he certainly was prejudiced by the failure to have
properly promulgated regulations at that time.'
We quote the following from the regulation (stated to be effective
September 23, 1950, and published in the Federal Register on November
28, 1950):
SEC. 151.5 Decision (a) Preparation by hearing officer of
written decision. -- * * * the hearing officer shall, as soon as
practicable after the conclusion of the hearing, prepare in
writing a decision, signed by him, which shall set forth a summary
of the evidence adduced and his findings of fact and conclusions
of law as to deportability. * * * The hearing officer shall have
no authority * * * to designate * * * to which country the alien
shall be deported (8 C.F.R.).
Examination of the decision of the hearing officer, dated December
11, 1950, shows that he conformed to the regulation which was then in
force but which was promulgated subsequent to the hearing.
We must conclude from the foregoing that counsel's objection is
likewise without substance with respect to the Internal Security Act.
Examination of the record shows following:
Q. If you were to be deported, what country would you prefer
deportation to, provided that you are acceptable to that country?
A. I would go to any country to which I could get permission
to go.
Q. What would be your preference, provided you are acceptable
to the country of your preference?
A. It is not a matter of choosing on my part. It depends what
country will accept me.
Q. Would you say, then, that you have no particular
preference?
A. I will make up my mind where to go when I am sure that I am
to be deported.
* * * * * * *
(By RESPONDENT'S COUNSEL):
Q. You testified previously that you would prefer to go to any
country that would admit you in the event you were deported. Does
that include the country of Greece?
A. No.
Q. Do you mean by that that you prefer not to go to Greece if
you had a choice
A. Yes.
Q. Why do you prefer not to go to Greece?
A. The fact that I had been a member of the Greek Maritime
Union makes in subject to persecution.
Q. What is the basis for your statement that you might be
persecuted if you returned to Greece?
A. Because hundreds of Greek seamen have been imprisoned and
some sentenced to death, and I conclude that the same fate would
await me.
Q. Are the seamen that you are referring to seamen who were
members of the Greek Maritime Union?
A. Yes.
Reading of the record compels the conclusion that it fully conforms
to the formalities of present law and present regulations, and to
conduct a rehearing as requested by counsel would be an idle thing.
It is thus apparent that (1) the respondent desires opportunity to
depart from the United States without an order of deportation, and (2)
if he is to be deported his objection lies to his being deported to
Greece.
With respect to voluntary departure, his application therefor is an
appeal to the exercise of administrative discretion. He testifies that
he was a member of the National Maritime Union (commonly referred to as
the O.E.N.O.) from 1941 to 1945, and from September 1944 to January 1945
he was an organizer of the organization. That organization has been
included in the Attorney General's list of subversive organizations, and
it is not the practice in such cases to grant administrative relief from
deportation. Consistently with that practice, the application for
voluntary departure will be denied.
With respect to the place of deportation, the respondent can have no
complaint unless and until deportation be directed to Greece. It is
apparent from the regulation that the determination of the country to
which an alien is to be deported is primarily lodged with the
administrative officer, and it does not appear from the record before us
that such determination has been made. When made, if counsel apprehends
that the respondent's rights under the law have been transgressed, he
may resort to such remedy as he may find available.
Order: It is ordered that the applications for rehearing and
voluntary departure be denied and the appeal be dismissed.
(1) Counsel stated that this was the second hearing, the need
therefor being occasioned by the decision of the Supreme Court in the
case of Sung v. McGrath, 339 U.S. 33, 1950.
(2) Examination of the regulations shows various changes therein,
declared as effective on September 23, 1950, and published in the
Federal Register on November 28, 1950.
Citizenship -- Child born abroad (1948) of alien mother and United States citizen father -- Prerequisite of father's residence in the United States before birth of child for acquisition of citizenship by child under section 201(g) and (i) of the Nationality Act of 1940, as amended -- Meaning of "residence' under section 104 of that act, as amended. (See Interim Decision #78, 3, I. & N. Dec. 652)
The United States citizen father was physically absent from the
United States for 19 years (not absent for a short period as in Acheson
v. Yee King Gee, 184 F.(2d) 382), and (though under the circumstances he
may have a substantial claim as to domicile here) did not fulfill the
residential requirements of section 201(g) and (i) of the Nationality
Act of 1940, as amended, as defined in section 104 of that act, as
amended, so that a child born to him in the Belgian Congo of an alien
wife in 1948 did not acquire United States citizenship at birth under
section 201(g) or (i) (supra).
Discussion: On November 7, 1950, subject's application for a
certificate of citizenship under section 339 of the Nationality Act of
1940, as amended, was denied by the Commissioner. The denial was based
upon the fact that the subject's United States citizen parent, his
father, did not fulfill the mandatory residential requirements of
section 201 of the Nationality Act of 1940, as amended, specifically
sections 201(g) and 201(i), and accordingly, it was held that the
subject could not be regarded as a citizen of the United States.
Subject's counsel requests reconsideration of said denial on the
ground that the subject's father meets the 10-year residence in the
United States requirements of sections 201(g) and (i). Counsel has
submitted a memorandum of law and has also directed the attention of the
Service to the case of Acheson v. Yee King Gee (184 F.(2d) 382), decided
by the United States Court of Appeals, Ninth Circuit. With reference to
that case, counsel contends that since the holding of that case is that
the word "residence' as used in section 201(g) does not require physical
presence, that obviously the word "residence' must be construed to mean
domicile as it is understood in the law; that at all times the domicile
of the subject's father during the father's minority was the domicile of
N B , the father of the subject's father, or the subject's grandfather;
that since the grandfather was in Turkey during the father's minority as
an employee of the Socony-Vacuum Oil Co., an American firm, the
subject's grandfather's domicile and residence within the meaning of the
Nationality Act was at all times in the United States, and therefore, it
follows that the subject's father's residence was in the United States
and accordingly the statutory residence requirements of section 201 had
been complied with prior to the subject's birth.
The questions presented are (1) whether the subject acquired United
States citizenship at birth pursuant to the provisions of section 201 of
the Nationality Act of 1940, as amended, and (2) whether the residence
of subject's father in Turkey, with subject's grandfather, during
minority, was residence in the United States within the meaning of that
section, and specifically 201(g) and (i).
The record shows that the subject's grandfather, N E B , entered the
United States in November 1907 and was naturalized as a United States
citizen in September 1915. He departed from the United States in
February 1919 and returned to the United States in May 1922. He was
married to G A and on October 16, 1922, the subject's father, E B , was
born in New York, N.Y. The subject's father then resided in New York
until November 1925, when the family went to Turkey. The subject's
grandfather returned to the United States for a short period from June
1926 to November 1926 and then returned to Turkey where he remained
until November 1945, when he returned to the United States for permanent
residence again. During the period from December 22, 1929, until
October 1, 1945, the grandfather was continuously employed by
Socony-Vacuum Oil Co., an American corporation, said employment being
continuously in Turkey where he resided with his family, including the
subject's father. The subject's father resided continuously with the
grandfather in Turkey until May 1944 when the subject's father returned
to the United States, at which time he was under 22 years of age. While
in Turkey, the subject's father worked from 1941 to 1942 with the United
States military attach e in Ankara and from 1942 until 1944 with the
Office of War Information in Istanbul. After the father's return to the
United States he served in the United States Army from December 1, 1944
until November 18, 1946 when he was honorably discharged. He then went
to work for the Texas Petroleum Co., an American corporation, and in
1947 left for the Belgian Congo where he married the subject's mother on
November 4, 1947. The subject was born on May 18, 1948, in the Belgian
Congo and based upon the father's allegation that the father resided in
New York from the time of his birth until February 12, 1947, the
applicant was included in the father's United States passport as a
United States citizen and was admitted to the United States at the port
of New York on September 11, 1948, as a United States citizen, being
accompanied by his citizen father and his alien mother. Subsequently,
the Department of State on March 21, 1949, advised the subject's father
that the father did not fulfill the required residence qualifications
for passing on American nationality to the subject who was born abroad,
by reason of the father's continuous residence in Turkey from 1926 to
1944.
Although the record shows that the subject's father had a total
period of residence in the United States of less than 6 years since the
time of his birth, less than 3 years of which was after he attained the
age of 12 years, counsel contends that subject's father nevertheless
fulfilled the residence requirements of section 201 by reason of the
fact that the father's presence in Turkey during his minority was not
residence outside the United States within the meaning of section 201,
as amended, and that the domicile of the grandfather, which was in the
United States, by reason of his employment abroad in behalf of an
American firm or corporation engaged in the development of foreign trade
and commerce of the United States, should be imputed to the subject's
father as residence under said section 201.
There appears to be no basis to dispute the fact that the
grandfather's domicile since 1907 was in the United States and that the
father's domicile, during the minority of the father, was that of the
grandfather's, and accordingly was also in the United States. There is
no disagreement with the matters set forth in counsel's memorandum
insofar as they deal with the question of domicile and residence
generally, but there is disagreement with counsel's conclusion that the
subject's father did meet the residence requirements of section 201(g)
or (i) in view of the specific and special restricted meaning of that
residence as defined by Congress in section 104 of the Nationality Act
of 1940.
It appears that the only question in issue is where was the place of
general abode of the grandfather and father, for section 104 of the
Nationality Act provides that for the purpose of section 201 of that
act, the place of general abode shall be deemed the place of residence.
The regulations in connection therewith in part 301.8 of title 8 of the
Code of Federal Regulations state that for the purpose of section 201
the place of a person's general abode shall be deemed the place of his
residence, and that, the place of general abode of a person is his
principal dwelling place.
It is well settled that an infant, being non sui generis, cannot fix
his own domicile but acquires and keeps during his minority the domicile
of his father (Lamar v. Micou, 112 U.S. 452). In this case it is clear
that the subject's father was not domiciled in a foreign country but was
domiciled in the United States, throughout the period of his absence.
Domicile, however, is not decisive of the question of residence as de
fined by section 104 of the Nationality Act of 1940.
Residence is a term of broad content, having no exact legal meaning,
and sometimes when used in a statute or constitution means a domicile
and involves physical presence in a place without requiring intent to
make it one's home, which is involved in the domicile concept (U.S. v.
Stabler, 169 F.(2d) 995). Domicile is not decisive of residence which
has varying meanings that must be understood in connection with the
context of statute and legislative purpose (Downs v. Collector of
Internal Revenue, 166 F.(2d) 504).
In addition to the aforesaid definition of residence for the purposes
of the Nationality Act of 1940 as to certain sections of that act
including section 201, a further expression of the legislative intent,
with reference to section 201 appears in the explanatory comment to this
section in the report of the joint committee, when said act was
proposed.
In the commentary to subsection (c) of section 201 the following was
stated:
In normal times, with increased facilities of transportation,
the numbers of persons sojourning or residing temporarily in
states of which they are not nationals is likely to increase.
Even now there are large numbers of Americans who reside abroad,
not merely for pleasure or because they have a preference for life
in foreign countries, but because they are engaged in promoting
American interest, commercial or other. In the great majority of
these cases husband and wife are both citizens of the United
States. In such cases it is altogether likely that the children
will be taught to speak the English language from infancy and will
be so brought up that they will be truly American in character.
This is likely to be the case where both parents are citizens of
the United States even though neither one resides abroad for the
purpose of promoting American interests. It seems reasonable and
expedient that citizenship in all such cases should be conferred
upon the children at birth, without any condition except that one
of the two citizen parents must have resided in the United States
prior to the child's birth. The latter condition is similar to
that which appeared in the old law, and it has never met with
serious objection, since it is so patently reasonable. Its
retention in subsection (c) hereof seems quite desirable, since it
would not be a wise policy to extend citizenship indefinitely to
generations of persons born and residing in foreign countries.
The case of a child born abroad to parents of whom only one is a
citizen of the United States, the other being an alien presents
greater difficulties and requires correspondingly stricter
limitations.
In the commentary to subsection (g) the committee pointed out as
follows:
This subsection is based upon section 1993 of the Revised
Statutes, as amended by section 1 of the act of May 24, 1934 (48
Stat.Pt. 1,797). However, it embodies a modification of the
provision last mentioned to make it better adapted to existing
situations. On the one hand, it does not seem reasonable to
confer citzenship at birth upon a foreign-born child having only
one citizen parent unless the latter has resided in the United
States before the child's birth at least ten years. A
foreign-born child whose citizen parent has not resided in this
country as much as 10 years altogether is likely to be more alien
than American in character. On the other hand, it seems desirable
that the requirements in the 1st proviso to the effect that the
foreign-born child, in order to retain citizenship, must reside in
the United States 5 years between the ages of 13 and 21 years and
take an oath of allegiance to the United States within 6 months
after his 21st birthday should not be applied to one whose citizen
parent resides abroad to represent the Government of the United
States, an American organization belonging to one of the
categories specified in the 2d proviso or an international agency
of an official character in which the United States participates.
In general, citizens of the United States residing abroad for the
purpose just mentioned not only promote the interest of this
country but are likely to retain their American sympathies and
character. Therefore, such persons are likely, as a rule, to
bring up their children as Americans, to see that they speak the
English language and to have them imbued with American ideals.
The probabilities however, would seem to be otherwise where the
citizen parent who is married to an alien resides abroad for
reasons having no connection with the promotion of American
interests.
It is evident that Congress intended to make certain concessions
insofar as the retention of citizenship under section 201(g) is
concerned and at the same time intended to restrict the passing on of
American citizenship from parent to child by requiring the child's
parent to have at least ten years residence in the United States before
the child's birth. Congress has stated it would not be a wise policy to
extend citizenship indefinitely to generations of persons born and
residing in foreign countries. The requirement of the citizen parent
having at least 10 years residence in the United States prior to the
child's birth effectively accomplishes this congressional purpose. It
also appears obvious that Congress, in speaking of residence after the
age of 12 years and after the age of 16 years, as provided in sections
201(g) and 201(i) of the Nationality Act of 1940, respectively, intended
that a person who had not attained the age of 21 years, should
nevertheless be regarded as having a place of residence of his own for
the purpose of passing on citizenship to his children. There is nothing
in the statute from which it can be inferred that the actual residence
of a parent can be imputed to a child like domicile within the
contemplation of sections 201 and 104 of the Nationality Act of 1940, as
amended. /1/
This Service, in a similar case to the instant case, Matter of D ,
56250/344, C.O., June 29, 1949 (Int. Dec. #78, 3, I. & N. Dec. 652),
concluded that the subject thereof was not a citizen of the United
States. It was held in that case that a child born in Egypt on March
24, 1946, to a native-born citizen father (the mother being an alien)
who presumably served honorably in the armed forces of the United States
from February 24, 1943, until January 17, 1946, did not acquire United
States citizenship at birth under either section 201(g) or (i) of the
Nationality Act of 1940, as amended, inasmuch as the citizen father who
was born here in September 28, 1922, was not considered, under the
circumstances, to have resided (constructively) in the United States
during the time he was abroad (from September 1931 until June 1946)
within the meaning of section 104 of the above act and 8 C.F.R. 301.8,
although he may have kept his domicile here (where his father lived)
throughout the period of his absence, and although his absence from the
United States may have been temporary. It was concluded in that case
that it could not be implied that the father's residence abroad from
1931 to 1946 was residence in the United States; that during his
absence from the United States, he had his place of general abode and
his principal dwelling place abroad, where he actually lived for 15
years; and that under the circumstances, his sojourn abroad, although
temporary in character, could not be considered as constructive
residence in the United States for the purpose of section 201 of the
Nationality Act of 1940, and accordingly, since the father did not
fulfill the residence requirements of section 201 of the Nationality Act
of 1940, the subject, his child, could not be regarded as a citizen of
the United States.
The case of Acheson v. Yee King Gee (supra), (United States Court of
Appeals, Ninth Circuit, October 4, 1950), concerned itself with a suit
under section 503 of the Nationality Act of 1940 for a declaratory
judgment as to the citizenship of the minor child, and section 201(g)
was directly in issue. The facts in that case disclose that the ehild
was born in China on March 16, 1941; his father was born in China but
was a citizen through his own father, the child's grandfather, who was a
citizen; the child's father arrived in the United States on August 6,
1929, at the age of 17, and was admitted as a United States citizen;
between 1929 and the date of the child's birth the father made two
visits to China, the first in 1936 at which time he was married and
remained in China for a few days less than 2 years and the second in
1940 to 1941 during which time the child was born. Leaving out of
account the period covered by the father's absence in China, he was
physically present in the United States but 8 years and 4 months prior
to the child's birth. The American consul therefore refused to
recognize the claim to citizenship under section 201(g) of the
Nationality Act of 1940 on the ground that the child's father had not
resided in the United States for the required 10 years prior to the
child's birth. The court held that the term "residence' as used in
section 201(g) is entitled to a broad and liberal construction. It
stated that "significantly' it is not qualified by the words "actual' or
"continuous.' It implies no requirement of physical presence. Moreover,
section 104 of the act provides that for the purpose of certain
designated sections, including 201, "the place of general abode shall be
deemed the place of residence.' The court found on persuasive evidence
that the father's two visits to China were for the purpose of visiting
his relatives and for no other reasons; that he had no intention of
abandoning his residence in the United States, and that in fact he had
resided here since his arrival in August 1929, hence had been a resident
of this country for nearly 12 years prior to the date of the child's
birth. The court found that the child was, therefore, a citizen of the
United States under section 201(g).
The decision of the Court of Appeals in Yee King Gee (supra), is not
in conflict with Interim Decision 78 (supra). Undoubtedly, the court
found that the father's residence was in the United States for 10 years
because his place of general abode was in the United States since 1929,
even though he had been temporarily absent therefrom on two occasions,
the greater absence being less than 2 years. The facts in the instant
case are not similar to that case in that the place of general abode of
both the grandfather and the father without question was in Turkey from
1925 to 1944. The period of absence in the instant case was over 19
years. These two cases clearly are distinguishable and are not in
conflict.
In view of the foregoing, since the subject's United States citizen
parent did not fulfill the mandatory residential requirements of section
201 of the Nationality Act of 1940, as amended, and as defined by
section 104 of said act, the subject may not be regarded as a citizen of
the United States. The prior order of denial is hereby affirmed.
The following cases are cited in further support of the conclusion
that the residence requirement under section 201 as defined by section
104 is not synonymous with domicile. In the case of Dorsey v. Brigham,
52 N.E. 303, 177 Ill. 250; 42 L.R.A. 809, 69 Am.St.Rep. 228, it was
held that an "abode' is the place where a person dwells. In the case of
Berryhill v. Sepp, 119 N.W. 404, 106 Minn. 458, 21 L.R.A.,N.S. 344 it
was held that in its relation to the question of whether a summons has
been left at the house of usual abode of the defendant, the term "abode'
means one's fixed place of residence for the time being and may be
synonymous with "residence.' But ordinarily "usual place of abode' is a
much more restricted term than "residence' and means the place where the
defendant is actually living at the time when service is made. Service
at the dwelling house of the defendant which is not described as his
usual place of abode, is not sufficient. The purpose of the use of the
term in an act relating to the service of process has primary reference
to the place where the defendant is usually to be found. Therefore,
"usual place of abode' means "present place of abode.' As defined in
this State, the term means the customary or settled place of residence.
In the case of a married man the "house of usual abode' is prima facie
the house wherein his wife and family reside. In the case of Yerkes v.
Stetson, 61 A. 113, 211 Pa. 556, it was held that a person has his
"dwelling' where he resides permanently or from which he has no present
intention to remove. Under act of July 1, 1901, authorizing a summons
to be served by handing a copy to a member of the defendant's family at
his "dwelling' house, the service was good though the "dwelling' house
was that of the father of the defendant.
In the case of Sanders v. Dixon, 89 S.W. 577, 114 No.App. 229, it was
held that the word "dwelling' is one of multiple meanings, but the
particular meaning intended to be expressed by it when used in a given
instance may be rendered obvious by the context or attendant
circumstances, and usually resort must be had to those aids to
interpretation to ascertain what is meant. In its broadest sense the
word denotes a building as a settled human abode and in common parlance,
when not qualified conveys the notion of a home, though a suite of rooms
occupied by one man may be his dwelling house. In the case of Douglas
v. Queeny, 167 A. 453, 109 Pa.Super.Ct. 336 it was held that a person
has his dwelling where he resides permanently or from which he has no
present intention to remove, and in its broadest significance the word
"dwelling' denotes a building used as a settled human abode, and in
common parlance, when not qualified conveys the notion of a home.
In the case of Inhabitants of Jefferson v. Inhabitants of Washington,
19 Me. (1 App.) 293, it was held that a "dwelling' means some permanent
abode or residence where the person residing intends to remain, and is
not synonymous with "domicile' as used in international law, but has a
more restricted meaning. In the Restatement, Conflict of Laws, section
13b, it is stated that the word "dwelling place' is used as the most
colorless word that can be employed; a word which has no legal
connotation, and is not confined to any physical sort of living
quarters. The dwelling place may be fixed in a single room, or
apartment or in a house or other building; or it may be no more
definitely fixed than in a city, county or state. Thus, if a man's
dwelling place has been in a house, but the house has been burned, he
may still have a dwelling in the city in which the house stood.
In the case of Kelty v. Burgess, 115 P. 583, 84 Kan. 678, the word
"principal' means main, chief, leading, highest in value, character or
importance, most considerable or important. In the case of Chicago and
A.R.O. v. House, 71 Ill.App. 147, it was held that "usual' is defined to
be frequent, ordinary, customary, general, often or regular. In the
case of Dorus v. Lyon, 101 A. 490, 92 Conn. 55, it was held that a house
where a resident of Connecticut habitually spends 3 days of the week for
14 years, except when away on trips and vacations, is his usual place of
abode for the purpose of serving process upon him.
In the case of Savorgnan v. United States, 338 U.S. 491, the Supreme
Court had occasion to consider the definition in section 104 (supra), in
its relationship to section 403(a) of the Nationality Act of 1940. The
Court stated:
Section 403(a) and 104 used the terms "residence' and "place of
general abode' without mention of the intent of the persons
concerned. The Act cleared up the uncertainties which had been
left by early decisions as to the type and amount, if any, of
residence abroad that was required to establish expatriation. In
contrast to such terms as: "temporary residence,' "domicile,'
"removal, with his family and effects,' "absolute removal,' or
"permanent residence,' the new Act used the term "residence' as
plainly as possible to denote an objective fact. To identify the
required "place of residence,' it required only that it be the
"place of general abode.'
* * * * * * *
Under the act of 1940, the issue is not what her intent was on
leaving the United States, nor whether at any later time, it was
her intent to have a permanent residence abroad or to have a
residence in the United States.
* * * * * * *
Her intent as to her "domicile' or to her "permanent
residence,' as distinquished from her actual "residence,'
"principal dwelling place,' and "place of abode,' is not material.
In applying the foregoing to the facts in the instant case, there can
be but one conclusion and that is, that the subject's father's place of
general abode or principal dwelling place between 1925 and 1944 was in
Turkey and not in the United States. This conclusion would also apply
to the subject's grandfather's place of general abode during the said
period.
Accordingly, it is concluded that the subject has failed to establish
that his father fulfilled the mandatory residential requirements of
section 201 of the Nationality of Act of 1940, as amended, in that his
father did not have 10 years residence in the United States prior to the
subject's birth. In view thereof, the subject may not be regarded as a
citizen of the United States.
Order: It is ordered that the denial of the application of A M N B
for a certificate of citizenship be and is hereby affirmed.
(1) Sec. 104 (supra), defining "residence' for the purpose of sec.
201 (supra), was considered in Matter of L W Y , A-7821371, Acting
Attorney General, March 23, 1951, Int. Dec. 242. The term "residence,'
as so defined, denotes an objective fact. See Savorgnan v. United
States, 338 U.S. 491.
Citizenship -- Acquisition by naturalization -- Expatriation by residence abroad -- Section 404(b) of the Nationality Act of 1940, as amended.
A native of Newfoundland, naturalized here in 1943, took up residence in Newfoundland in August 1947. She was issued a United States passport at St. Johns, Newfoundland, on December 20, 1948, endorsed to show that it was not valid after August 6, 1950, "the limited period that bearer should be residing outside the United States.' She came here in June-July 1950 for the purpose of retaining her citizenship, and returned to Newfoundland after a stay of about 3 weeks here, where she had no home, did not work, and did not reestablish herself. Under the circumstances upon her seeking admission here in May 1951 she was found to have had her principal dwelling place in Newfoundland for at least 3 years, thereby becoming expatriated under the provisions of section 404(b) of the Nationality Act of 1940, as amended.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Executive Order 8766 -- No passport.
Act of 1924 -- No visa.
Discussion: This record relates to a 58-year-old female who applied
to enter the United States as a United States citizen at Vanceboro,
Maine, on May 5, 1951, by railway, at which time she was in possession
of a Canadian National Railway ticket No. 122755, representing passage
from St. Johns, Newfoundland, to Boston, Mass. She was found
inadmissible by a Board of Special Inquiry as an alien immigrant on the
grounds stated above. She has appealed.
Upon consideration of the entire record, the findings of fact and
conclusions of law of the board of special inquiry, read to the
applicant on May 7, 1951, are hereby adopted except finding of fact No.
5 which is modified to show "return to Canada on July 12, 1950.'
If the appellant is an alien, then the grounds of exclusion are
sustained. From the present record it is concluded that the appellant
is an alien and therefore subject to exclusion on the grounds above
stated.
The subject is a native of newfoundland who resided in the United
States for many years. She was naturalized here on January 11, 1943.
She went to Newfoundland (Canada), in August 1947; she remained there
at the home willed to the subject appellant, with her mother, until
about June 1950. Her United States passport issued on December 20,
1948, at St. Johns, Newfoundland, was endorsed to show that it was not
valid after August 6, 1950, "the limited period that bearer should be
residing outside the United States.'
From the foregoing it appears that when she came to the United States
in June 1950 she lacked but two months to complete a 3 years' residence
in her native Newfoundland from about August 6, 1947. If she had
remained in Newfoundland until August 1950 she would clearly have
expatriated herself under the provisions of Section 404(b) of the
Nationality Act of 1940, inasmuch as she does not come within any of the
exceptions set forth in sections 405 and 406 of the Nationality Act of
1940.
The record shows that the appellant remained in the United States
from about June 19, 1950, to July 12, 1950, and then she returned to
Newfoundland where she remained until her present application for
admission into the United States at Vanceboro, Maine, on May 5, 1951.
If the evidence of record were found to establish that from June 19
to July 12, 1950, the appellant had actually resettled in the United
States, then her subsequent absence could be considered as starting a
new period of absence from about July 12, 1950, and accordingly, the
evidence of record would not sustain a finding that she had expatriated
herself by 3 years' residence in her native Newfoundland from August 6,
1947.
The evidence of record indicates that upon the advice of her sister
and in view of the information on her United States passport, that she
might lose her citizenship if she did not return to the United States
before August 6, 1950, she returned to the United States in June 1950
for the sole reason to retain her United States citizenship. She was
actually in the United States about 3 weeks and the rest of the time was
consumed in traveling to and from Newfoundland. She had her own home in
Newfoundland; she does not have a home in the United States; she did
not work in the United States while here -- June-July 1950; she did not
reestablish herself in the United States during June-July 1950. It must
therefore be concluded that her principal dwelling place since August
1947 was in Newfoundland, and even if the period she was away from
Newfoundland in June-July 1950 be not considered in computing 3 years of
residence in Newfoundland beginning from August 1947, it would still
appear that by at least October 1950 she had completed 3 years of
uninterrupted residence in Newfoundland during which period her
principal dwelling place /1/ was there. Accordingly, it must be
concluded that she has expatriated herself under the provisions of
section 401(b) of the Nationality Act of 1940.
Order: It is ordered that the excluding decision of the board of
special inquiry be affirmed without prejudice to reapplication for
admission to the United States when in possession of appropriate
documents.
(1) Sec. 104 of the Nationality Act of 1940 provides that for certain
sections of that act including sec. 404, the place of general abode is
to be deemed the place of residence. The principal dwelling place is
the place of residence to be considered. See 8 CFR 301.8. It is to be
stated that in this definition of residence, no mention is made of
intent as to the future place of abode, but rather the actual place of
general abode is made the sole test for determining residence under the
specified sections covered by sec. 104. As used here, the term
"residence' denotes an objective fact. See Savorgnan v. U.S., 338 U.S.
491.
Upon consideration of the entire record, it is ordered that the
appeal from the decision of the Commissioner be and the same is hereby
dismissed.
Citizenship -- Acquisition by child born abroad after January 12, 1941, of parents both United States citizens -- Section 201(c) of the Nationality Act of 1940 -- Prerequisite of residence in United States or one of its outlying possessions by at least one such parent prior to child's birth -- "Residence' -- Section 104 of the above act.
A child born in Canada in 1950 of United States citizen parents (who were born in Canada but who acquired United States citizenship through their fathers under R.S. 1993) did not acquire United States citizenship under the provisions of section 201(c) of the Nationality Act of 1940, because neither parent had "resided,' within the meaning of section 104 of that act, in the United States or one of its outlying possessions prior to the child's birth (their temporary visits here before the birth of child did not constitute such "residence').
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 -- No visa.
Executive Order 8766 -- No passport.
Discussion: This record relates to a 9-month-old female child who,
with her father, applied at the office of this Service at Winnipeg,
Manitoba, Canada, on April 11, 1951, to have her admissibility to the
United States as a United States citizen determined. She has been found
by a board of special inquiry to be an alien immigrant and inadmissible
on the ground stated above. She has appealed.
Due to the infancy of this appellant her father has testified in her
behalf. The father has testified that he was born in Canada and that
his mother and father were both native born United States citizens. He
has presented Form I-448, issued on April 9, 1951, showing that he was
found admissible to the United States as a United States citizen. He
also states that his father was naturalized in Canada on July 4, 1933,
and has presented the naturalization certificate.
The appellant's father has stated that he was married in Canada on
February 13, 1949. His wife, the mother of the appellant, has testified
that she was born in Canada and that her father and her mother were
native-born citizens of the United States. She has presented Form
I-448, issued April 9, 1951, showing that she was examined and found
admissible to the United States as a United States citizen. The
document shows that her father was naturalized in Canada in 1933.
This appellant was born in Canada on June 28, 1950. The facts
presented above show that her parents were both United States citizens
(sec. 1993 R.S.), at the time of her birth on June 28, 1950. The
question under consideration is whether this appellant was a United
States citizen at the time of her birth in Canada pursuant to section
201(c) of the Nationality Act of 1940 which reads:
Section 201. The following shall be nationals and citizens of
the United States at birth: * * *
(c) A person born outside of the United States and its outlying
possessions of parents both of whom are citizens of the United
States and one of whom has resided in the United States or one of
its outlying possessions, prior to the birth of such person: * *
*.
Section 104 of the Nationality Act of 1940 provides that for the
purpose of sections 201, 307(b), 403, 404, 405, 406, and 407 of said
act, the place of general abode shall be deemed the place of residence.
The record clearly establishes that this appellant's parents have
never taken up residence in the United States with the intention of
residing permanently. They entered this country about April 1949 to
work on a farm in South Dakota and remained in this country up to
October 1949 except for several trips back to Canada of 1 week each or
less during the summer. The father returned in 1950 and worked for 1
week. It appears that the father and mother both entered the United
States in April 1951 on two occasions and returned to Canada. In
February 1951 there was a drawing of lots in a colony of the Hutterite
Farms in the United States and this appellant's father, a member of the
colony, was chosen to be one of the persons to go to a new farm in the
United States. He and his wife desire to enter the United States for
permanent residence and to bring the appellant with them. Each of the
appellant's parents has stated that during prior entries to the United
States they had no intention of taking up residence here or remaining
permanently. In fact, they frequently returned to their home in Canada
during the period of their temporary stay in the United States.
It is concluded from the facts presented in this case that this
appellant was not a United States citizen at the time of her birth in
Canada on June 28, 1950, for the reason that neither of her parents had
resided in the United States prior to her birth. Consequently she is an
alien, native and citizen of Canada. She desires to enter the United
States to reside. She is not in possession of a visa and she does not
present a passport or document in lieu thereof. The findings of the
board of special inquiry are sustained.
Upon consideration of the entire record, the findings of fact and
conclusions of law prepared by a board of special inquiry and served on
the appellant on April 16, 1951, are hereby adopted.
Order: It is ordered that the excluding decision of the board of
special inquiry be affirmed, without prejudice to reapplication for
admission within one year.
Discussion: Upon consideration of the entire record, we agree with
the Acting Assistant Commissioner that the applicant is not a citizen of
the United States, and we approve her decision which affirms the
decision of the board of special inquiry.
We note counsel's statement that he has been advised by the consulate
at Winnipeg that the Department of State has upon a similar set of facts
declared a person in like circumstances to be a citizen, because of
which the consulate refused a visa. Presumably, any such ruling
involved section 1993 of the Revised Statutes. The instant case,
however, involves sections 201 and 104 of the Nationality Act of 1940.
Consideration of the provisions of those sections compels the conclusion
that the applicant is not a citizen. No basis is apparent to us for a
holding that the applicant is a citizen.
Order: It is ordered that the appeal from the decision of the Acting
Assistant Commissioner be and the same is hereby dismissed. /*/
(*) Editor's note. -- A similar conclusion was reached in a like case
in unreported Matter of W , A-8021021, C.O., June 25, 1951, B.I. A.,
August 15, 1951.
Expulsion proceeding -- Administering oath -- Fair hearing -- Effect of deficiency in warrant of arrest or in manner of obtaining evidence before warrant of arrest issued.
(1) Section 16 of the Immigration Act of February 5, 1917, as amended, applies in expulsion proceedings as in exclusion proceedings empowering immigration officers to administer oaths.
(2) Although no deficiency was found in the warrant of arrest or in the manner in which the evidence was obtained prior to the issuance of said warrant (see pt. 150, title 8, C.F.R.), this fact alone would not nullify the entire proceedings, since the warrant hearing was admittedly fair, and sufficient affirmative evidence was there presented to sustain the deportation charge.
CHARGE:
Warrant: Act of 1924 -- Remained longer -- Visitor.
Discussion: This is an appeal from an order entered by the Acting
Assistant Commissioner April 5, 1951, directing the respondent's
deportation from the United States pursuant to law on the charge stated
above.
Counsel in support of his exceptions to the aforementioned order,
inter alia, alleges irregularity in the arrest of the respondent in that
the evidence upon which the warrant was issued was obtained by means of
illegal search and seizure contrary to the fourth amendment to the
Constitution of the United States.
The respondent is an alien, a native and citizen of Portugal. He
last arrived in the United States at the port of Baltimore, Md., October
15, 1947 ex-S. S. Sundades and was admitted as a temporary visitor under
section 3(2) of the Immigration Act of 1924, for business for a period
extended to February 28, 1948. An extension of his temporary stay was
granted to April 15, 1948. He has remained in the United States
subsequent to April 15, 1948.
We have carefully reviewed the evidence of record relative to
counsel's exceptions. Section 16 of the Immigration Act of 1917, as
amended, provides among other things that immigration officers "shall
have power to administer oaths and to take and consider evidence
touching the right of any alien to enter, reenter, pass through, or
reside in the United States, and, where such action may be necessary, to
make a written record of such evidence * * *.' It has been held that
this section applies with equal force to deportation as well as
exclusion proceedings (Loufakis v. United States, 81 F.(2d) 966 (C.C.A.
Pa., 1936)).
It is our considered judgment that the weight of evidence in the
instant case affirmatively establishes that the investigating officers
first identified themselves to the respondent when he opened the door to
his apartment in the hotel where he (the alien) resided. There is also
affirmative evidence that the investigating officers warned the alien
that any statement made by him may be used as evidence against him in
any subsequent proceeding. The investigating officers then conducted
the interrogation pursuant to the regulations then in effect. (See pt.
150, title 8, C.F.R.)
The facts relative to respondent's entry and his unlawful residence
in the United States subsequent to April 15, 1948, fully justified the
telephonic issuance of a warrant of arrest by the district director
under the regulations (pt. 150, title 8, C.F.R.). Although we find no
deficiency in the warrant of arrest or in the manner in which the
evidence was obtained prior to the issuance of said warrant, this fact
alone would not nullify the entire proceedings, since the warrant
hearing was admittedly fair (we find no exceptions on this point by
counsel) and sufficient affirmative evidence was there presented to
sustain the deportation charge (Toku Sakai v. United States, 239 Fed.
492 (C.C.A. 9, 1917)).
The respondent applied for voluntary departure under the provisions
of section 19(c) of the Immigration Act of 1917, as amended. He
testified that he is married, that his wife and three children reside in
Portugal and that he has contributed to their support. Since his
arrival in the United States, he has been employed on various
construction projects in the States of New York and Pennsylvania.
Exhibits A through E, Stipulation No. 2, are certificates of good
conduct from various police departments in the States of New York and
Pennsylvania. Exhibit 4 is a letter from an exporting concern at
Lisbon, Portugal, which states that the respondent is a very reliable
exporter, but due to the condition of international exchange, business
has been curtailed considerably. Exhibits F and G are affidavits
executed by two citizens of the United States of Portuguese nativity
attesting that they have known the respondent since January of 1950 and
that he is a person of good moral character. Since there is no evidence
other than that the respondent has been a person of good moral character
for the statutory period, we will permit him to depart voluntarily at
his own expense, to any country of his choice within 30 days from the
date of notification of this decision. If the respondent does not take
advantage of the foregoing privilege, the order and warrant of
deportation will be reinstated.
Order: It is directed that the order and warrant of deportation
dated April 3, 1951, be and the same are hereby withdrawn.
It is further directed that an order of deportation be not entered at
this time but that the alien be required to depart from the United
States, without expense to the government, to any country of his choice
within 30 days after notification of decision, on consent of surety, and
conditioned upon arrangements being made with the local immigration
office for verification of departure. Departure in accordance with the
foregoing will be deemed sufficient to cancel the outstanding delivery
bond.
It is further directed that if the alien does not depart within the
time limit mentioned in the foregoing order, he be deported from the
United States forthwith pursuant to law on the charge stated in the
warrant of arrest.
Editor's note. -- Similar statements appear in unreported Matter of C
, A-7416951, B.I.A., June 22, 1951.
Suspension of deportation -- Section 19(c)(2) of the Immigration Act of February 5, 1917, as amended -- Effect of availability of other relief from deportation.
The fact that there is another avenue of relief from deportation open to the alien does not constitute sufficient reason for denying suspension of deportation (sec. 19(c)(2) of the above act, as amended), if that relief is merited.
CHARGES:
Warrant: Act of 1924 -- No immigration visa.
Act of 1917 -- Entered without inspection.
Discussion: This case is before us on appeal from a decision of the
Assistant Commissioner dated March 20, 1951, directing that the
respondent be granted only voluntary departure.
Discussion as to Deportability: Respondent, an 18-year-old native
and citizen of Mexico, last entered the United States by boat near
Hidalgo, Tex., on February 24, 1945. He stated that he came here to
live with his brothers. A warrant of arrest in deportation proceedings
was issued on October 3, 1947, charging respondent with entering without
a visa (secs. 13 and 14, act of 1924) and entering without inspection
(sec. 19, act of 1917). Respondent is clearly deportable on these
charges.
Discussion as to Eligibility for Suspension of Deportation:
Respondent married a native-born United States citizen on March 31,
1950; they have one citizen child, born July 28, 1950. Respondent's
mother, also, is in this country and reportedly under deportation
proceedings.
Respondent testified that his wife and child are entirely dependent
upon him for support and would suffer serious economic detriment if he
were deported. Respondent earns about $57 per week and said that he is
in debt for the sum of $900.
Both Federal Bureau of Investigation and Toledo, Ohio, police files,
as well as those of Mexican authorities, show that respondent has had no
criminal record since his arrival here 6 years ago. The independent
character investigation conducted by the Immigration Service reveals
nothing derogatory. In addition, respondent has submitted affidavits of
two United States citizens who attest to his good moral character.
Hence, it appears that respondent has satisfactorily established that he
has been a person of good moral character during the past 5 years.
Therefore, since respondent has been a person of good moral character
and because his deportation would cause serious economic detriment to
his citizen wife and child, we feel that suspension of deportation
should be granted.
As we have stated before, "the fact that there is another avenue of
relief open to respondent in the form of voluntary departure and reentry
after obtaining a visa, which relief is not by any means identical with
suspension, does not constitute sufficient reason for denying the relief
now sought, if that relief is merited.' Matter of G , A-728284 (March
13, 1951); Matter of P G , A-691495 (April 27, 1951).
Suspension of Deportation -- Findings of Fact: Upon the basis of all
the evidence presented, it is found:
(1) That the alien is not ineligible for naturalization in the
United States.
(2) That the alien has been of good moral character for the
preceding 5 years.
(3) That deportation of the alien would result in serious
economic detriment to his wife and infant child, native-born
citizens of the United States.
(4) That after full inquiry no facts have been developed which
would indicate that the alien is deportable under any of the
provisions of law specified in section 19(d) of the Immigration
Act of 1917, as amended.
Suspension of Deportation -- Conclusion of Law: Upon the basis of
the foregoing findings of fact, it is concluded:
(1) That the alien is eligible for suspension of deportation
under the provisions of section 19(c)(2) of the Immigration Act of
1917, as amended.
Order: It is ordered that deportation of the alien be suspended
under the provisions of section 19(c)(2) of the Immigration Act of 1917,
as amended.
It is further ordered that the order entered by the Assistant
Commissioner on March 20, 1951, be and the same is hereby withdrawn.
It is further ordered that if during the session of the Congress at
which this case is reported, or prior to the close of the session of the
Congress next following the session at which this case is reported, the
Congress passes a concurrent resolution, stating in substance that it
favors the suspension of such deportation, the proceedings be canceled
upon the payment of the required fee and that the alien, a nonquota
immigrant, be not charged to any quota.
Crime involving moral turpitude -- Tampering with motive power of vessel -- 18 U.S.C. 502.
Violation of 18 U.S.C. 502 is an offense which involves moral turpitude. (See new 18 U.S.C. 2275.)
CHARGES:
Warrant: Act of 1924 -- Remained longer -- seaman.
Lodged: Act of 1917 -- Crime within 5 years, to wit: Conspiracy to
and attempt to tamper, and tampering and attempting to tamper with, the
motive power of a vessel (18 U.S.C. 502).
Discussion: The respondent herein appeals from an order entered by
the Assistant Commissioner January 15, 1951, denying his application for
voluntary departure, preexamination and advance exercise of the 7th
proviso to section 3 of the Immigration Act of 1917 and directing his
deportation from the United States pursuant to law on the charges stated
above. Respondent's exceptions do not contest the findings of fact or
conclusions of law as to deportability but are concerned solely with the
question of discretionary relief.
The respondent last entered the United States at San Juan, P.R., June
7, 1940, and was admitted as a seaman for 60 days. After his admission,
he decided to remain in his country permanently. He was ordered
deported to Italy May 14, 1941, but this Board on August 27, 1948,
withdrew the outstanding order and warrant of deportation and reopened
the case to permit the respondent to apply for discretionary relief.
The respondent was convicted in the United States District Court, San
Juan, P.R., for violation of 18 U.S.C. 502, to wit: Conspiracy to
tamper and attempt to tamper, and tampering and attempting to tamper,
with the motive power of a vessel while said vessel was within the
jurisdiction of the United States, with intent to injure and endanger
the safety of the vessel, said acts having been committed on or about
March 29, 1941. Violation of 18 U.S.C. 502 has been held to be a crime
involving moral turpitude. Matter of C , A-5956631 (B.I.A. 1943).
The respondent married a native-born citizen of the United States on
May 11, 1947. He is gainfully employed as a busboy earning $28 per week
plus his meals. His wife is employed as a stenographer and earns
approximately $75 a week. Affidavits have been presented attesting that
the respondent is a person of good moral character. Evidence has been
submitted showing that the respondent has no arrests or criminal record
in the United States except for the crime mentioned above. We find that
the respondent has been a person of good moral character for the
preceding 5 years.
The respondent's application for voluntary departure, preexamination,
and advance exercise of the 7th proviso to waive the criminal ground of
inadmissibility was denied by the Assistant Commissioner primarily
because at that time he would have been inadmissible upon application
for readmission under the provisions of section 1(2)(C) of the act of
October 16, 1918, as amended by the Internal Security Act of 1950 since
he has admitted former membership in organizations affiliated with the
Fascist Party of Italy.
The 82d Congress, however, since the adjudication of the case by the
Assistant Commissioner, has enacted certain exceptions to the
restrictive provisions of section 1(2)(C) of the act of October 16,
1918, as amended by section 22 of the Internal Security Act of 1950
(Public Law 14, 82d Cong.; H.R. 2339, approved March 28, 1951). Where
membership or affiliation with a proscribed organization was due solely
and absolutely necessary for the purpose of obtaining or keeping
employment, food rations, housing, or other essentials of living the
restrictive provisions of section 22 of the Internal Security Act
(supra), do not apply. The affirmative evidence of record establishes
that the respondent was forced to belong to the Fascist Federation of
Seamen in order to obtain and keep his employment as an Italian seaman.
Accordingly, insofar as membership in this organization is concerned,
the respondent, under Public Law 14 (supra), is not inadmissible now.
The respondent testified during the hearing that he also belonged to
the Guild Fascist Youth Organization but that he was opposed to Fascist
ideology.
The record, however, was not developed to show whether respondent's
membership in this organization comes within any of the exceptions
enumerated in Public Law 14 (supra), or whether his membership therein
ceased before he reached his 16th birthday. Under the circumstances, we
will authorize the respondent's preexamination and the omissions
referred to above can be developed during the hearing before the Board
of Special Inquiry. At the same time, we will authorize the
respondent's voluntary departure and provide for the advance exercise of
the 7th proviso to remove the criminal ground of inadmissibility.
Order: It is ordered that the order entered by the Assistant
Commissioner January 15, 1951, be and the same is hereby withdrawn.
It is further ordered that the appeal insofar as it relates to the
grant of voluntary departure and preexamination be and the same is
hereby sustained; preexamination is hereby authorized together with the
alien's voluntary departure in connection therewith.
The criminal ground of exclusion is hereby waived pursuant to the
discretion contained in the 7th proviso to section 3 of the Immigration
Act of 1917, as amended, notwithstanding the alien's inadmissibility as
one who was convicted of and/or admits the commission of a crime
involving moral turpitude, to wit: His conviction in the United States
District Court, San Juan, P.R., 1941, for violation of 18 U.S.C. 502,
subject to revocation in the discretion of the Attorney General, after
hearing, if the alien subsequently commits any offense.
Marriage -- Validity of religious marriage in Mexico -- Recognition of common-law marriage in State of Texas -- Legitimation of child in Texas, by marriage with recognition by the father.
(1) A religious marriage ceremony in Mexico did not result in a valid marriage regardless of parties' intention that it be such.
(2) A valid common-law marriage was perfected in Texas in 1941 by the parties in this case under sections 17, 18, 20, and 28, Texas Jurisprudence (pp. 714-720).
(3) Under Texas law, marriage with recognition by the father, are the requirements for legitimation.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1918 -- Executive Order 8766 -- No passport.
Act of 1924 -- No immigration visa.
Discussion: This case is before us on appeal from an order of the
Assistant Commissioner dated July 19, 1950, affirming a majority opinion
of a Board of Special Inquiry finding the subject of this record to be
an alien, and excluding him from admission to the United States on the
above-stated charges. The dissenting member of the Board of Special
Inquiry found the subject to be a citizen of the United States.
The subject applied for admission to the United States at
Brownsville, Tex., on April 7, 1950. He stated he wished to enter this
country and work. At that time, he testified he was 23 years of age,
single, a laborer, white, and that he was born at Durango, Mexico, on
February 27, 1927. He stated that his father was a native and citizen
of Mexico and that his mother was a citizen of the United States.
Regarding the issue of appellant's citizenship, appellant's father
testified that in 1922 or 1923 he entered the United States, and
thereafter fell in love with appellant's mother; that he and
appellant's mother left this country for Mexico; and that they lived
together as man and wife in Mexico without being married. After the
couple had lived in Mexico for 3 or 4 years, the Holy Fathers came to
the Rancho la Negra, where appellant's parents were residing, and
baptized children who had not been baptized and married couples who were
living together and who had not been married. The father stated that he
and the appellant's mother were married at this time as were other
couples. No marriage papers were given appellant's parents; nor was
any record made at the church of the marriage. The father stated that
the appellant was born in Mexico on August 22, 1927. Several other
children were born in Mexico of the union; and later two children were
born in the United States. Appellant's father testified that he
believed the marriage ceremony by the Holy Fathers united him and his
wife into a valid, binding marriage. However, the two were married by
civil ceremony in San Benito, Tex., on November 13, 1949. The marriage
took place to aid in adjusting the father's immigration status. The
family has lived in the United States since 1941. The testimony of the
appellant's mother was in substantial agreement with that of the father.
Appellant's mother has satisfactorily established that she is a
United States citizen. The appellant made no direct claim to United
States citizenship. The civil marriage in the United States between
appellant's parents took place after he had attained his majority.
The majority of the board of special inquiry is of the opinion that
the appellant is a native and citizen of Mexico, that he did not gain
United States citizenship through his mother because the mother and
father were legally married in their own beliefs in Mexico, that the
only reason the parents were married by civil ceremony in the United
States was because the father believed such marriage would help him in
legalizing residence under 19(c) of the Immigration Act of 1917, as
amended.
The chairman of the board of special inquiry, who dissented, was of
the opinion that the appellant is a United States citizen, having
acquired such as the illegitimate son of a United States citizen woman.
The chairman argues that common-law marriages are not recognized in
Mexico; /1/ that they were not when the appellant was born; and that
belief of a valid marriage did not in fact constitute a marriage.
The Assistant Commissioner has concluded that the appellant is an
alien. In his opinion it is stated that in determining the validity of
religious marriages in Mexico such marriages are held to be valid in
certain cases and invalid in others, the determination being based
solely on facts and evidence of record. In support of this position,
the following cases are cited: Matter of T , AA-4033 (December 14,
1945); Matter of F , 55837/836 (September 19, 1933); Matter of de V ,
56028/60 (February 9, 1940); Matter of V , A-3085307 (56032/907) (April
25, 1944); Matter of R de I , A-6518794; Matter of S , A-6248084 and
A-6248085 (September 2, 1947); Matter of P , 2270-C-3771176 (September
6, 1933); and Matter of W , 1502-2733 (August 18, 1948).
Most of those are not precedent decisions and their use in support of
the Service's position has little value. Matter of de V , 56028/60,
decided February 9, 1940, by the then Board of Review, and Matter of V ,
A-3085307 (56032/907), decided April 25, 1944, by the Board of
Immigration Appeals, concerning the validity of religious marriages in
Mexico, are pertinent to the instant proceedings and will be discussed
briefly. In the Matter of de V (supra), it was held that marriage of a
female alien only by religious ceremony in Mexico did not divest her of
United States citizenship acquired at birth. This appears to be at
variance with the decision in the Matter of V . That case related to a
woman who was married in Mexico on March 17, 1904, by a religious
ceremony to a native and citizen of Mexico. The husband was naturalized
in Colorado on September 28, 1920, and in his naturalization record
stated that he was not married and had no children, whereas actually he
was married and had two minor children. In April 1925 the respondent
joined her husband in Colorado, a State in which common-law marriage is
recognized, and resided there for about a year when she moved to New
Mexico. In that case, which involved deportation proceedings, the
respondent's wife was found to have acquired United States citizenship
under section 1994, Revised Statutes, by reason of her husband's
naturalization on September 28, 1920. Proceedings were canceled,
alienage not having been established.
We think the latter case can be distinguished from the former. In
the latter there was a religious ceremony in Mexico, which was followed
by cohabitation in a State which recognized common-law marriages. We
think it important to note that full consideration was given to all
circumstances in the case and it was concluded that on the record
alienage was not established.
It is our conclusion that the appellant is legitimate and that he is
an alien. However, such conclusion is not based on the reasons advanced
by the Service. There was no valid marriage in Mexico entered into
between the appellant's parents. That they intended their religious
marriage as such is clear from the record. They entered Texas in 1941
while appellant was a minor. Texas recognizes common-law marriages.
Under sections 17, 18, 20, and 28, Texas Jurisprudence it appears that
the parents perfected a valid, common-law marriage. Under Texas law,
marriage with recognition by the father are the requirements for
legitimation. Appellant's father has always recognized R as his son.
The appeal will be dismissed.
Order: It is ordered that the appeal be dismissed without prejudice
to reapplication for admission when in possession of proper documents.
(1) The Mexican law relative to the validity of marriages is stated
in the Mexican Constitution of February 5, 1857, as amended by the act
of September 25, 1873 (a similar provision being contained in par. 3,
art. 130, of the Mexican Constitution of 1917), which reads as follows:
"Marriage is a civil contract, Marriage and any other acts of a
person's civil status are in the exclusive competence of the officials
and authorities of the civil government in the terms provided by the
laws, and they shall have the force and validity that the same
attributes to them.'
Editor's note. -- If the common-law marriage here, which together
with recognition resulted in legitimating the child, occurred after
January 12, 1941, then the situation referred to in Interim Decision
#304 (4, I. & N. Dec. 440) (headnote pars. 5 and 6) would obtain and a
different conclusion as to citizenship would be the result.
Moral turpitude -- Violation of city ordinance as constituting a crime or misdemeanor -- Crimes involving moral turpitude, Washington, prostitution.
(1) Violation of an ordinance of the city of Seattle, Wash., relating to prostitution deemed to be a crime or misdemeanor involving moral turpitude within the meaning of the Immigration Act of February 5, 1917, as amended.
EXCLUDED:
Act of 1924 -- No immigration visa.
Executive Order 8766 -- No passport.
Act of 1917 -- Admits the commission and convicted of crime involving
moral turpitude, to wit: Practicing prostitution.
Discussion: The record relates to a native and citizen of Canada who
applied for admission into the United States at Vancouver, British
Columbia, and was held for examination before a board of special
inquiry. At the conclusion of the hearing on June 27, 1950, she was
found to be inadmissible on the grounds stated above and she has
appealed from such decision.
The record discloses that appellant was legally admitted to the
United States for permanent residence at Blaine, Wash., on December 14,
1948, under Public Law 271. On September 29, 1949, deportation
proceedings were instituted against her on the ground that she was
deportable under the act of February 5, 1917, in that she had been found
practicing prostitution after her entry. She was granted voluntary
departure and left the United States on October 4, 1949. Her present
application for admission into the United States is for permanent
residence.
Appellant was convicted on September 23, 1949, after a plea of
guilty, in the Municpal Court of Seattle, Wash., of the violation of
Seattle, Wash., city ordinance 73095, section 1 (practicing
prostitution). Section 1 of the ordinance named provides that: "It
shall be unlawful to commit or offer or agree to commit any act of
prostitution, assignation, or any other lewd or indecent act.' The
violation of the ordinance was punishable by imprisonment in the city
jail not to exceed 90 days or by a fine not exceeding $300 or by both
such fine and imprisonment. Appellant was sentenced to pay a fine of
$100.
It is well established that the crime of practicing prostitution
involves moral turpitude. It has been held that the offense of
soliciting prostitution in the State of Washington in violation of
section 2688, volume IV, Remington's Revised Statutes of Washington,
Annotated (1931) is an offense involving moral turpitude, (Matter of P ,
A-6365969 (B.I.A., 1947)). The pertinent provision of the statute
involved in that case was "Every * * * (3) person practicing or
soliciting prostitution * * * is a vagrant.' However, the record in this
case does not disclose that appellant was convicted of a violation of
the Washington penal code but was convicted of violation of an ordinance
of the city of Seattle, Wash. The question therefore presented in this
case is whether the offense committed by appellant for which she was
convicted is a felony or other crime or misdemeanor within the
contemplation of the Immigration Act of February 5, 1917.
In the Matter of D , A-6171077 (B.I.A., 1947), it was held that a
violation of an ordinance of the city of Rochester, N.Y., was not a
crime, because the charter of Rochester provided in part that "A
violation of an ordinance of the common council or said commissioner
shall not be a crime but the prosecution therefor shall be a criminal
procedure.' In that case the alien was charged with violation of the
city ordinance in that she was an inmate of a house of ill-fame, a place
for persons to visit for the purpose and practice of unlawful sexual
intercourse. In the Matter of C , A-5536201, 2, I. & N. Dec. 367
(B.I.A., 1945), a violation of a city ordinance of the city of Buffalo,
N.Y., which ordinance was described as "disorderly conduct' and related
to prostitution or unlawful sexual intercourse, was also held not to be
a felony or other crime or misdemeanor within the meaning of the act of
February 5, 1917.
In the Matter of F , A-5080177 (B.I.A., 1947), a violation of a
municipal ordinance of the city of Miami, Fla., was held to be a crime
within the meaning of the Immigration Act of 1917. The ordinance
involved provided that "It shall be unlawful to commit, within the
limits of the city of Miami, any act which is or shall be recognized by
the laws of the State of Florida as a misdemeanor * * * and the
punishment shall be "by the same penalty as is therefore provided by the
laws of the State of Florida.' In the Matter of R , A-5679593 (B.I. A.,
1947), a violation of an ordinance of the city of Massillon, Ohio, which
dealt with the subject of nuisances and houses of ill-fame was held to
be a crime within the meaning of the Immigration Act of 1917, the
particular offense committed by the alien in that case having been the
operation of a house of ill-fame for prostitution. An examination of
the constitutional and statutory provisions of the State of Ohio failed
to disclose any provisions in the city charter defining the violation of
a city ordinance as not being a crime; the provisions of the municipal
ordinance of Massillon when compared with the provisions of the State
statute disclosed that the prohibitions contained in the ordinances
clearly came within the scope of a State statute dealing with
substantially the same subject matter. It was concluded in that case
that an offense created by a municipal ordinance must be regarded as a
crime, if it constituted a crime under the general law of the State.
Research has failed to disclose any statutory law or any court
decisions defining the violation of an ordinance of a city in the State
of Washington as not being a crime. Nor does a perusal of the charter
of the city of Seattle (presented to the voters for ratification at the
election held on March 12, 1946, and adopted) disclose any provision
defining the violation of a city ordinances as not being a crime. Under
the enabling acts relating to cities of the first class, to which class
Seattle belongs, the city of Seattle has the power to "make regulations
necessary for the preservation of public morality, health, peace, and
good order within its limits and to provide for the arrest, trial, and
punishment of all persons charged with the violating of any of the
ordinances of said city but punishment shall in no case exceed the
punishment provided by the laws of this State for misdemeanors.' Section
8966, volume X, Remington's Revised Statutes of Washington, Annotated
(1931); Brennan v. Seattle (151 Wash. 665, 668 (1929)). Section 14,
article IV of the charter of the city of Seattle provides that "the city
council shall have power by ordinance and not otherwise * * * to make
all such local, police, sanitary, and other regulations as are not in
conflict with the laws of the State.' Therefore it appears that the
ordinance involved in the instant case is a proper exercise of the
police power invested in the city of Seattle. It is not in conflict
with the laws of the State of Washington, the offense of practicing
prostitution being a violation of the State law, as set forth in section
2688, volume IV, Remington's Revised Statutes of Washington, Annotated
(1931) mentioned above. Section 2253, Remington's Revised Statutes of
Washington provides that "a crime is an act or omission forbidden by law
and punishable upon conviction * * * imprisonment, fine, or other penal
discipline.'
It is therefore concluded that this case comes within the doctrine
enunciated in the Matter of R (supra), as distinguished from the cases
in the Matter of D and Matter of C (supra). Since the city ordinance
was a valid exercise of the police power of the city of Seattle and the
act committed by appellant was forbidden by law and punishable upon
conviction by imprisonment, fine, or both, it must be concluded that the
violation of the city ordinance involved is a felony or other crime or
misdemeanor within the contemplation of the Immigration Act of February
5, 1917. Consequently appellant was convicted of a felony or other
crime or misdemeanor involving moral turpitude and she was properly
found to be excludable on the criminal ground shown above. The record
does not establish that she is entitled to any discretionary relief.
The action of the Board of special inquiry should therefore be affirmed.
Order: It is ordered that the excluding decision of the board of
special inquiry be affirmed.
Editor's note. -- Similarly, a violation in 1949 of sec. 41.05 of
Ordinance No. 77000 of the Los Angeles, Calif., code relating to
prostitution -- Offering held to be a crime or misdemeanor involving
moral turpitude within the meaning of the Immigration Act of February 5,
1917, as amended. Matter of G , A-6990751, C.O., December 20, 1951.
Likewise, a violation in 1950 of ordinance 2686 (new series), sec. 1
of the city of San Diego, Calif., relating in part to the commission of
an indecent act as well as prostitution held to be a crime or other
misdemeanor within the meaning of the Immigration Act of February 5,
1917, as amended. However, under facts in case, which involved the
commission of an indecent act, the offense was found not to involve
moral turpitude. Matter of T C , A-6703077, C.O. February 26, 1952.
Citizenship -- Expatriation -- Section 3 of the act of March 2, 1907 -- Applicability of statutory bar to expatriation during time of war -- Section 2 of act of March 2, 1907.
A native born woman citizen of the United States, who married an
alien here in 1918, whose husband became naturalized thereafter in 1918,
did not become expatriated under section 3 of the act of March 2, 1907,
upon marriage because this country was then at war, nor did she lose
citizenship on July 2, 1921 (when state of war was declared terminated),
when such marriage subsisted, because her husband was no longer an
alien, but was a citizen by then.
Discussion: Pursuant to the provisions of 8 C.F.R 379.7(c), the
District Director, New York, N.Y., has forwarded for decision the case
of the above-named subject, who alleged in her application for a
certificate of citizenship that she acquired United States citizenship
through the naturalization of her husband as a United States citizen on
June 24, 1918.
The question presented is whether the subject derived citizenship
through the naturalization of her husband, as alleged.
Subject was born in the United States at Newark, N.J., on August 25,
1898. Documentary evidence of birth has been submitted. On June 3,
1918, she was married at New York, N.Y., to M M , then an alien and
citizen of Russia. He was naturalized as a citizen of the United States
on June 24, 1918, in the United States District Court, Camp Devens,
Mass. In 1949 the name of the subject, as well as that of her husband,
was changed from M to M by order of court. The subject's marriage and
the naturalization of her husband took place while the United States was
at war (World War I); that is, between April 6, 1917, and July 2, 1921.
At the time of subject's marriage and the naturalization of her
husband, the act of March 2, 1907, was in effect and provided in section
2 thereof that any American citizen shall be deemed to have expatriated
himself when he has been naturalized in any foreign state in conformity
with its laws or when he has taken an oath of allegiance to any foreign
state. A proviso to this section stated: "That no American citizen
shall be allowed to expatriate himself when this country is at war.' In
section 3 of said act it was provided that any American woman who
marries a foreigner shall take nationality of her husband.
In the case of Petition of Peterson (33 F.Supp. 615), it was held
that the statutory bar to expatriation during time of war, contained in
section 2 of the act of March 2, 1907, applied to a woman coming within
the purview of section 3 of said act. In that case it was decided that
an American woman who married a citizen of Great Britain during war
could not claim exemption from the obligation of citizenship during the
war but, when the war was ended and she continued to reside abroad with
her alien husband, the statutory bar to expatriation was automatically
removed, the privilege of citizenship was withdrawn and expatriation was
complete.
An opinion of the Attorney General, dated August 22, 1940, to the
Secretary of State, 39 Op.Atty.Gen. 474, dealt with the subject of loss
of citizenship under the provisions of the act of March 2, 1907, with
particular reference to the proviso in section 2, "That no American
citizen shall be allowed to expatriate himself when this country is at
war.' With reference to this proviso, the following was stated:
It has been generally understood that the last-quoted proviso
in section 2 prevented loss of citizenship while the United States
was at war. The proviso undoubtedly was intended for the
protection of the Government, as stated in Petition of Prack (60
F.(2d) 171), * * * and there may be occasions when the citizen is
barred from setting up the limitation in his own behalf with the
resultant determination of his rights as though the limitation did
not exist, but it does not appear that any case requiring such
action has reached the courts. The theory was applied in Petition
of Prack, but unnecessarily and without affecting the correctness
of the conclusion * * *.
The Attorney General's opinion further stated that, assuming that
these persons did not lose their citizenship during the war, the
question must be considered whether there was loss of citizenship upon
the termination of the state of war, it being pointed up that the
factual status acquired by such persons might, and in cases of
naturalizations and marriages ordinarily did, continue beyond the war,
even throughout the lifetime of the affected individual. The following
conclusion was drawn.
Both the better reasoning, as it seems to me, and the
preponderance of the judicial determination in the several courts
which have dealt with the question impel me to the conclusion that
American citizens who were naturalized abroad after entry into the
war by this country on April 6, 1917, and prior to the
congressional resolution of July 2, 1921, declaring the war at an
end, lost their citizenship as of the latter date, and that this
is also true of American women who married aliens or who were
naturalized abroad through the naturalization of their husbands
during the same period, provided the marital status had not
previously been terminated.
The subject acquired United States citizenship by reason of her birth
in this country, as provided for in the 14th amendment to the United
States Constitution. Because of the statutory provision against
expatriation during time of war, the subject never lost her United
States citizenship by reason of marriage. According to the authority
cited above, citizenship could have been lost at the termination of the
state of war, if the subject were then married to an alien. However,
this condition did not exist and there was no loss at any time by the
subject of the citizenship, which she acquired by reason of her birth in
this country. Consequently, the subject must be deemed to be a
native-born citizen of the United States.
Section 339 of the Nationality Act of 1940 states certain conditions
under which certificates of citizenship may be issued. No provision has
been made therein for the issuance of a certificate or citizenship to a
person who acquired citizenship by reason of birth in this country.
Since the subject acquired United States citizenship by reason of birth
in the United States, there is no provision of law whereby she may be
issued a certificate of citizenship.
It is ordered that the application for a certificate of citizenship
be denied.
Place of deportation -- Exclusion proceedings -- Section 18 of the Immigration Act of February 5, 1917, as amended -- Applicability of section 20 of that act, as amended by the Internal Security Act of 1950.
Section 20 of the Immigration Act of February 5, 1917, as amended by section 23 of the Internal Security Act of 1950 relates to expulsion proceedings, whereas section 18 of the Immigration Act of February 5, 1917, as amended relates to exclusion proceedings.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 -- No immigration visa.
Executive Order 8766 -- No passport.
Act of 1917 -- Convicted of crime involving moral turpitude -- Perjury.
Act of 1917 -- Admits commission of crime involving moral turpitude
-- Perjury.
Discussion: This case is before us on motion to reconsider our order
of July 27, 1949, wherein we dismissed the appellant's appeal from an
order affirming his exclusion on the above stated grounds at the port of
San Francisco, Calif. Counsel also urges a reopening of the proceedings
in light of section 23 of the Internal Security Act of 1950 which amends
section 20 of the Immigration Act of 1917. Pending consideration of the
question presented we directed a stay of the appellant's deportation.
Oral argument on the motion was granted and counsel was heard.
The respondent, a native and citizen of China, arrived at the port of
San Francisco, Calif., on June 14, 1948. He applied for admission as a
native-born citizen of the United States. Upon examination he admitted
alienage and following a hearing before a board of special inquiry on
April 21, 1949, he was excluded on the above-stated grounds. His return
to China, the country whence he came, is now imminent.
Counsel raises the point that the amendment to section 20 of the 1917
act (supra), which provides in part "No alien shall be deported under
any of the provisions of this act to any country in which the Attorney
General shall find that such alien would be subjected to physical
persecution' requires a finding by the Attorney General that the
respondent would not be subject to physical persecution before he can be
returned to China under the order of exclusion. Accordingly, he moves
for a reopening of the proceedings for the introduction of additional
evidence relative to the fate, it is alleged, awaits the appellant if he
is returned to Communist controlled China.
The issue presented is whether that portion of the amended statute
quoted above relates to a case which has arisen in exclusion proceedings
as opposed to deportation proceedings. We agree with the Acting
Assistant Commissioner of the Enforcement Division that section 18 of
the Immigration Act of 1917, as amended, requires the return of aliens
excluded from admission to the United States to the country whence they
came with certain exceptions not applicable here.
A reading of the two sections under discussion clearly indicates that
section 18 (supra) relates to "aliens brought to this country in
violation of law' whereas, section 20, as amended in 1950 (supra), by
its very terms relates to "deportation proceedings' * * * "of any alien
taken into custody under warrant of the Attorney General' * * *
"instituted * * * after the entry of the alien.' Since the appellant's
inadmissibility has been established in exclusion proceedings and there
is no showing of record that section 18 of the Immigration Act of 1917,
as amended, cannot be applied in such proceedings, we cannot ignore its
provisions as this would amount to judicial legislation which should be
avoided.
Order: It is ordered that the motion be and the same is hereby
denied.
Visa petition -- Alien beneficiary unmarried minor child of a race eligible to citizenship (Chinese) -- Petitioner, United States citizen father who served in the armed forces of World War II and has an honorable discharge certificate -- Eligibility of beneficiary for nonquota immigration visa issued under section 4(a) of the Immigration Act of 1924, as amended -- Applicability of Public Law 717, approved August 19, 1950.
Public Law 717, approved August 19, 1950, is regarded as being in
pari materia with the Immigration Act of 1924, as amended, and as
operating as an amendment thereof; an alien beneficiary unmarried minor
child of a race eligible to citizenship (Chinese) of a United States
citizen father who served in the armed forces of World War II and has an
honorable discharge is deemed eligible for a nonquota immigration visa
issued under section 4(a) of the Immigration Act of 1924, as amended,
such Chinese beneficiary not being otherwise so eligible in view of the
provisions of section 2 of the act approved December 17, 1943, as
amended August 9, 1946.
Discussion: The problem presented by the appeal here is whether
beneficiary is entitled to nonquota status under section 4(a),
Immigration Act of 1924, in the issuance of an immigration visa by
virtue of the provisions of Public Law 717, approved August 19, 1950.
The pertinent facts are these: The petitioner, N K D , is a citizen
of the United States and the beneficiary is his minor son, N W M . The
petitioner executed visa petition on December 23, 1950, pursuant to
section 9, Immigration Act of 1924, for the purpose of establishing that
the beneficiary is entitled to a nonquota status in the issuance of an
immigration visa, as the minor child of a United States citizen.
Petitioner's United States citizenship has been conceded by the
Immigration and Naturalization Service at the time of his admission at
Boston, Mass., October 19, 1940, and in the approval of visa petition
number 439033, filed in behalf of his wife, W Y M , approved October 25,
1950. Petitioner submitted birth certificate showing that his child,
the beneficiary, was born in Hong Kong on February 3, 1950. /1/ He also
submitted evidence of his honorable service in the United States Army
from December 18, 1942, to January 27, 1946.
Public Law 717, approved August 19, 1950, reads:
To permit the admission of alien spouses and minor children of
citizen members of the United States armed forces.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That
notwithstanding the provisions of section 13(c) of the Immigration
Act of 1924, /2/ as amended (8 U.S.C., 213(c)), alien spouses or
unmarried minor children of United States citizens serving in, or
having an honorable discharge certificate from the Armed Forces of
the United States during World War II, shall, if otherwise
admissible under the immigration laws, be eligible to enter the
United States with nonquota immigration visas issued under the
provisions of section 4(a) of the Immigration Act of 1924, as
amended (8 U.S.C. 204(a)): Provided, That in the case of such
alien spouses of United States citizens serving in, or having an
honorable discharge certificate from the Armed Forces of the
United States during World War II, the marriage shall have
occurred before 6 months after enactment of this act.
The Service concluded that the provisions of Public Law 717 do not
benefit the minor child. /3/ The Service's reasoning appears in the
following excerpt:
In a letter to all district directors, dated September 6, 1950,
file 56190/84, this Service stated:
"The act approved August 19, 1950, is regarded as being in pari
materia with the Immigration Act of 1924, and as operating as an
amendment thereof. If the aliens are racially eligible for
citizenship and are related as described above to United States
citizens who meet the above-noted qualifications, they are
eligible for admission as nonquota immigrants under the 1924 act
irrespective of the provisions of Public Law 717 (except husbands
by marriage after December 31, 1947). Thus as to such alien
spouses and unmarried minor children, Public Law 717 merely
waives, (1) the racial ineligibility bar to admission and (2) the
requirement that an alien husband be such by a marriage which
occurred prior to January 1, 1948.'
It is apparent that if the language of the circular letter dated
September 6, 1950 (file 56190/84), is correct, then no problem would be
presented by this case. On the one hand, the impression given by the
circular letter is that the beneficiary hereof would be entitled to a
nonquota status under section 4(a), Immigration Act of 1924, but that
impression is nullified by the following discussion in the Service's
memorandum:
Secton 2 of the act approved December 17, 1943, as amended
August 9, 1946, provides:
"With the exception of Chinese alien wives of American citizens
and those Chinese coming under the subsections (b), (d), (e), and
(f) of section 4, Immigration Act of 1924 (43 Stat. 155; 44 Stat.
812; 45 Stat. 1009; 46 Stat. 854; 47 Stat. 656; 8 U. S.C.
204), all Chinese persons entering the United States annually as
immigrants shall be allocated to the quota for the Chinese
computed under the provisions of section 11 of the said act. A
preference up to 75 per centum of the quota shall be given to
Chinese born and resident in China.'
Section 2 of the act approved December 17, 1943, as amended,
does not provide for the granting of nonquota status to Chinese
children of United States citizens. It does provide that they
shall be admitted as quota immigrants. Therefore, the beneficiary
is precluded from obtaining a nonquota immigration visa under
section 4(a) of the Immigration Act of 1924.
Section 6 of the Immigration Act of 1924 does not provide any
preference within the quota to children of United States citizens.
Beneficiary is, therefore, not entitled to any preference within
the quota by reason of his relationship to the petitioner. Under
the act approved December 17, 1943, as amended, the beneficiary is
entitled to a preference within the quota by reason of his birth
and residence in China. It is unnecessary to submit an
application to this Service for approval of such preference.
Specifically, the Service takes the position that the language of
Public Law 717 cannot benefit the child here, since the child is not one
ineligible to naturalization. Section 303(a), Nationality Act of 1940,
as amended by the act of December 17, 1943. Therefore, it is reasoned,
if Chinese persons are not within the provisions of section 13(c) /4/ ,
Immigration Act of 1924, Public Law 717, has no application to the
beneficiary.
The position taken is that the provisions of Public Law 717 are
restricted to those racially ineligible to become naturalized as
citizens of the United States, who, of course, meet the other
requirements; namely, "alien spouse or unmarried minor children of
United States citizens serving in, or having an honorable discharge
certificate from the Armed Forces of the United States during World War
II shall, if otherwise admissible under the immigration laws, be
eligible to enter the United States with nonquota immigration visas
issued under the provisions of section 4(a) of the Immigration Act of
1924, as amended.'
The conclusion reached in this case is welded together by the
application of the principle that Public Law 717 is in pari materia with
the Immigration Act of 1924, and as operating as an amendment thereof.
The principle enunciated is not always easy to determine. Its
application generally comes into play where there are two statutes in
existence relating to the same person or thing or the same classes of
persons or things, or the same purpose or object. The principle is of
no help if there is no conflict. It is merely an extension of the
principle that all parts of a statute should be construed together, and
its corollary that an amendment and the independent portion of the
original act should be construed together. /5/
These principles require extreme caution in their application, since,
in the final analysis what is sought is the probable intent on the part
of the legislature. To that end the things to be considered are the
words of the statute itself, the nature, context and the subject of the
statute, as well as the consequences of the various constructions.
Public Law 717 is not an innovation, in the sense that it is the first
deviation from a general law.
The phrase "ineligible to naturalization' in the act, does not appear
to be a proviso, since the office of a proviso is to limit or restrict
general language; and, generally, the expression of a proviso should be
confined to that clause or part of the statute which directly precedes
it in the statute, although this is not always so. /6/
Nor does the phrase appear to be an exception to a general purpose.
/7/
Thus the question arises, is there conflict or ambiguity in the act.
Congress has previously legislated on the problem of facilitating and
removing obstacles in the cases of alien spouses and children of
servicemen abroad.
On December 28, 1945, Congress enacted Public Law 271, /8/ the
purpose of which was to expedite the admission to the United States of
alien spouses, and alien minor children of citizen members of the United
States Armed Forces and on June 29, 1946, it enacted a law (which was
extended to December 1, 1948), to facilitate the admission to the United
States of the alien fiancees and fiances of members of the Armed Forces
of the United States.
The act of December 28, 1945, was amended on July 22, 1947, by
providing that the alien spouse of an American citizen by a marriage
occuring on or before 30 days of the enactment of this act, would not be
considered as inadmissible because of race, if otherwise admissible
under the act. When this amendment was made the purpose of the bill was
"to permit the racially inadmissible spouses of United States citizen
members of the Armed Forces, if otherwise admissible to enter the United
States under Public Law 271, the so-called Brides Act,' /9/ and further
under general information regarding the bill appears the following
statement: "It was felt that this discrimination should be eliminated
and the present bill was introduced to amend Public Law 271, which
incidentally, is a temporary law and will expire on December 28, 1948,
to give the same privilege to the spouse of servicemen who are
ineligible for admission because of their race as is extended to those
who are racially admissible.' /10/
The act of December 28, 1945, of course, expired 3 years later.
Thereafter, it was discovered that there were still a number of spouses,
and children principally in Japan, who could not enter the United States
because of racial restrictions in our laws. Public Law 717, approved
August 19, 1950, came into being. House Report 2768, which repeats in
substance Senate Report 1878, concerning Public Law 717, gives the
purpose behind the prior laws; namely, the act of December 28, 1945
(Public Law 271) and the act of July 22, 1947 (Public Law 213) which
covered both the racially admissible and inadmissible alien spouses and
children of citizen members of the United States Armed Forces. The
caption of the report merely states the purpose of the bill was to
permit the admission of alien spouses and minor children of citizen
members of the United States Armed Forces. No mention is made therein
as to racial inadmissibility. The act itself, of course, covered that
class, otherwise no good purpose would have been served by the bill.
The title of a statute plays an important part not only in the
legislative expression but also in the construction or interpretation of
laws. In many States the title is required by constitutional provision
and hence may be a part of the statute. Hence, the title of an act may
become of assistance where congressional intent is doubtful. /11/
In MacKenzie v. Hare, 239 U.S. 300, the court used this language:
There is no limitation of place; there is no limitation of
effect, the martial relation having been constituted and
continuing. * * * The act is therefore explicit and
circumstantial. It would transcend judicial power to insert
limitations or conditions upon disputable considerations of
reasons which impelled the law, or of conditions to which it might
be conjectured it was addressed and intended to accommodate.
Whatever was said in the debates on the bill or in the reports
concerning it, preceding its enactment, or during its enactment,
must give way to its language, or, rather, all the reasons that
induced its enactment and all of its purposes must be offered to
be satisfied and expressed by its words, and it makes no
difference that in discussion some may have been given more
prominence than others, seemed more urgent and insistent than
others, presented the mischief intended to be remedied more
conspicuously than others.
And in Church of the Holy Trinity v. U.S., 143 U.S. 457, involving
the question of who were alien laborers within the meaning of the alien
contract labor laws, the court, in part, used the following language:
The title of the act, "To Prohibit the Improtation of
Foreigners and Aliens under Contract to Perform Labor,' refers to
the work of the manual laborer, as distinguished from that of the
professional man, and indicates an exclusion from its penal
provisions of all contracts for the employment of ministers,
rectors, and pastors.
* * * Among other things which may be considered in determining
the intent of the legislature is the title of the act. We do not
mean that it may be used to add or take from the body of the
statute (Hadden v. Barney, 72 U.S. 3 Wall. 107 (8: 518) but it
may help to interpret its meaning.
In the case of U.S. v. Fisher, 6 U.S., 2 Cranch, 358, * * * Chief
Justice Marshall said:
* * * Where the intent is plain nothing is left to
construction. Where the mind labors to discover the design of the
legislature, it seized everything from which aid can be derived;
and in such cases the title claims a degree of notice, and will
have its due share of consideration]
If our prior position is reaffirmed we would have this result:
1. Only those racially inadmissible could benefit by Public Law 717.
2. Those not racially inadmissible would nevertheless be covered by
section 4(a), Immigration Act of 1924, covering the legislative grant of
nonquota status, including Chinese wives of spouses covered by said
Public Law 717. Chinese children would not because section 2, act of
December 17, 1943 /12/ (which repealed the Chinese Exclusion Laws), as
amended August 9, 1946, did not include them.
Now, Public Law 271, of course, was designed to aid families of
servicemen who were not racially inadmissible, and to correct the
discrimination said act was amended by the act of July 22, 1947, so as
to cover the racially inadmissible spouses and children of United States
citizen servicemen. These acts, of course, expired. Because the
problem still remained somewhat, Public Law 717 was approved August 19,
1950. To restrict its application as contended, would revive the
discrimination, only this time in the inverse order. It may be urged
that as to those racially admissible, they are covered by section 4(a),
Immigration Act of 1924. But this would not be true with respect to
Chinese children of United States citizen servicemen, and thus to that
extent the discrimination would remain. We think Congress intended no
such result. A statute must be construed for the most good. /13/ An
interesting point with respect to the nonquota grant is that both in
Public Law 271 (act of December 28, 1945), and Public Law 213 (act of
July 22, 1947, which amended the act of December 28, 1945, so as to
remove the racial restriction) Congress specially provided a grant of
nonquota status to them irrespective of the general grant provided in
the 1924 Immigration Act. See section 233, title 8, U.S.C.A. Another
point is that with respect to Public Law 271, "To expedite the admission
to the United States of alien spouses and minor children of citizen
members of the United States Armed Forces,' the report of the Senate
committee and the Report of the House committee (Nos. 850 and 1320, 79th
Cong., 1st session) on H.R. 4857, each state that the sole objective of
the bill was to do what is stated in the title.
Public Law 717 clearly covers all those who meet the basic
requirement, whether or not racially inadmissible. It is special
legislation not restricted by general provisions. Certainly, it would
be unreasonable to say that Congress should have passed two bills, one
for the racially inadmissible and another for the racially admissible.
When Public Law 271 was in existence Congress merely amended same to
apply to the racially inadmissible. Since both expired and the problem
which induced those acts again arose, Congress merely passed a bill to
avoid the discrimination which initially existed and which it removed by
amendment. To say Congress has again discriminated is to avoid the
clear meaning of the act. We cannot attribute such a meaning to
Congress in respect to Public Law 717, which, incidentally, is clearly
remedial in nature. When it becomes necessary to justify an exclusion
not clearly indicated by the act, by laborious and circuitous reasoning,
then resort to statutory construction to support such labor should be
avoided. Aside from statutory interpretation, we think the language of
Public Law 717 is clear. It seems that the logic employed to carve out
an exception, rather than the act, is ambiguous and strained.
Upon reconsideration, we feel that any previous holdings to the
contrary shold be overruled. Accordingly, the appeal herein will be
sustained.
Order: It is ordered that the appeal be sustained.
(1) The Service found that the beneficiary did not derive United
States citizenship at birth under sec. 201(g) or 201(h), Nationality Act
of 1940, since the father did not have ten years residence in the United
States prior to the birth of the child, as required. This issue is not
before us.
(2) This section reads:
"No alien ineligible to citizenship shall be admitted to the United
States unless such alien (1) is admissible as a nonquota immigrant under
the provisions of subdivisions (b), (d), or (e) of section 4, or (2) is
the wife, or the unmarried child under 18 years of age, of an immigrant
admissible under such subdivision (d), and is accompanying or following
to join him, or (3) is not an immigrant as defined in sec. 3.'
The phrase "ineligible to citizenship' referred to in sec. 13(c)
above, is defined in sec. 28(c) of the same act as follows:
"The term "ineligible to citizenship,' when used in reference to any
individual, includes an individual who is debarred from becoming a
citizen of the United States under sec. 303 or 306 of the Nationality
Act of 1940, as amended (54 Stat. 1140, 1141; U.S.C., title 8, secs.
703, 706), or sec. 3(a) of the Selective Training and Service Act of
1940, as amended (55 Stat. 845; U.S.C., title 50, App. Supp. III), sec.
303(a), or under any law amendatory of, supplementary to, or in
substitution for, any such sections.
(3) In the Matter of K L , VP-418706, January 19, 1951, involving the
same problem, we took the position that Public Law 717 applied only to
the wife and minor children of United States citizens who are serving or
served in the armed forces of World War II which wife and children are
racially eligible to citizenship. We further stated as follows: As
Chinese the children are not racially ineligible to citizenship.
However, under sec. 2, act of December 17, 1943 (57 Stat. 600), as
amended, only Chinese wives of citizens are entitled to nonquota status.
The children who wish to be admitted to the United States must make
application under the quota.
(4) See footnote 2.
(5) Sutherland Statutory Construction vol. II, p. 544, Section 575.
(6) U.S. v. Bernays, 158 Fed. 793; Clay Center State Bank v.
McKelvie, 19 F.(2d) 308.
(7) Sutherland, vol II.
(8) This act reads:
"To expedite the admission to the United States of alien spouses and
alien minor children of citizen members of the United States Armed
Forces.
"Act approved December 28, 1945 (59 Stat. 659; 8 U.S.C. 232-236).
14 See secs. 3 and 16, of the act of February 5, 1917, and secs. 4(
a) and 9 of the act of May 26, 1924.
"Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That notwithstanding any
of the several clauses of section 3 of the act of February 5, 1917,
excluding physically and mentally defective aliens, and notwithstanding
the documentary requirements of any of the immigration laws or
regulations, Executive order, or Presidential proclamations issued
thereunder, alien spouses, or alien children of United States citizens
serving in, or having an honorable discharge certificate from the armed
forces of the United States during the Second World War shall, if
otherwise admissible under the Immigration laws and if application for
admission is made within 3 years of the effective date of this act, be
admitted to the United States; Provided, That every alien of the
foregoing description shall be medically examined at the time of arrival
in accordance with the provisions of section 16 of the act of February
5, 1917, and if found suffering from and disability which would be the
basis for a ground of exclusion except for the provision of this act,
the Immigration and Naturalization Service shall forthwith notify the
appropriate public medical officer of the local community to which the
alien is destined: Provided further, That the provisions of this act
shall not affect the duties of the United States Public Health Service
so far as they relate to quarantinable diseases.
"SEC. 2. Regardless of section 9 of the Immigration Act of 1924, any
alien admitted under section 1 of this act shall be deemed to be a
nonquota immigrant as defined in section 4(a) of the Immigration Act of
1924.
"SEC. 3. Any alien admitted under section 1 of this act who at any
time returns to the United States after a temporary absence abroad shall
not be excluded because of the disability or disabilities that existed
at the time of that admission.
"SEC. 4. No fine or penalty shall be imposed under the act of
February 5, 1917, except those arising under section 14, because of the
transportation to the United States of any alien admitted under this
act.
"SEC. 5. For the purpose of this act, the Second World War shall be
deemed to have commenced on December 7, 1941, and to have ceased upon
the termination of hostilities as declared by the President or by a
joint resolution of Congress.
"SEC. 6. The alien spouse of an American citizen by a marriage
occurring before 30 days after the enactment of this act, shall not be
considered as inadmissible because of race, if otherwise admissible
under this act.'
(9) U.S. Code, Cong. Service, 1947, p. 2-383.
(10) Ibid, p. 2-384.
(11) Crawford, Statutory Construction, p. 124; U.S. v. Palmer, 3
Wheat. (U.S.) 610.
(12) Nor alien husbands married to United States citizens after 1948,
since they are specially granted a preference quota status under the
1924 Immigration Act.
(13) Collins v. New Hampshire, 171 U.S. 30.
The decision and order of the Board of Immigration Appeals dated May
14, 1951, are hereby approved.
Crime involving moral turpitude -- Falsification of a commercial document -- Philippine Islands (1915).
Stipulation -- Principles of law applicable -- Manner in which it may be set aside
(1) Were the subject's conviction in the Philippine Islands in 1915 for violation of articles 301 and 300 of the Penal Code of the Philippine Islands of 1911, it appears these statutes do not require a criminal intent of such nature as to warrant a finding that a conviction thereunder is for a crime involving moral turpitude.
(2) The general principles of law applicable to stipulations are well
established. A stipulation of fact is binding, with certain exceptions
when it may be set aside. The procedure to set aside a stipulation is
summary in nature. Under the circumstances in this case, it was not
found reversible error not to have done so, but the better practice
would have been for the hearing examiner to have formally notified the
alien and his representative that the stipulation was to be vacated.
Discussion: The record relates to a 59-year-old married male, a
native and citizen of the Philippine Islands.
The record shows that on April 13, 1950, a stipulation was entered
into between the respondent and the examining officer which stated in
part that the respondent had establishd a residence in the United States
prior to May 1, 1934, which he has never abandoned.
The respondent has testified that he first entered the United States
in August 1923 at Honolulu, T.H. In the course of the first examination
in the case, on April 13, 1950, he testified that he had resided
continuously in this country since that time with the exceptions of
brief periods when he sailed abroad in pursuit of his calling as a
seaman. He last entered the United States on September 16, 1945, upon a
return voyage as a seaman, intending to remain permanently in this
country. He was not in possession of an immigration visa at the time of
his entry. The record shows that the respondent was married to a
citizen of the United States on September 7, 1924. They have one
citizen child, born in 1925. In addition there is a grandchild whom the
respondent is supporting.
The alien testified further that on May 7, 1915, he was convicted in
the Philippine Islands for forgery of public documents receiving a total
sentence of 12 years, 1 day and 1,250 pesos fine; that the documents in
question were checks. He stated that at the time the offense occurred
he was working at a sugar plantation in Manila, Philippine Islands, as a
cashier; that he had the duties of a cashier, paying employees and
bills that were presented to him. The checks of the company were signed
in blank and he had the authority to fill in the amount that he needed
to pay. He testified that on two particular checks he filled them out
in the sum of 19,000 pesetas -- "and taking the money.' He further
testified "In my heart I did not do it but in the court it said I was
guilty. I don't remember to what person or persons they were to be
paid.' He admitted that he pleaded guilty to the charge. He stated that
he did not actually receive the 19,000 pesetas from these two cashed
checks. He testified that he served about 9 years, at the expiration of
which time he was granted a pardon by the Governor General of the
Philippine Islands.
In this latter connection there is contained in the record a copy of
a letter written by the Governor General of the Philippine Islands on
March 19, 1923, wherein it is stated that the unexecuted portions of the
sentence of the respondent was thereby remitted on condition that he
would leave the Philippine Islands never to return thereto; that should
the condition stated therein be violated by the prisoner, the sentence
imposed upon him should again be in full force and effect.
The record shows that the alien was also arrested in 1939 in the
United States on a charge of carrying a concealed weapon. He was
sentenced to 60 days imprisonment for this offense and served 45 days of
this term. With respect to this offense he testified that he carried
the gun for his protection while carrying home his salary from his
employment in an oil field.
The record shows that in 1947 the alien petitioned for
naturalization. In connection with this petition he failed to disclose
his prior arrests. He testified that he did not conceal the arrests
intentionally; that he did not remember them at the time. There is
further evidence of record that in 1945 he was employed by the Post
Office Department in San Francisco, Calif., and that at that time he
also failed to reveal his arrests. The alien has testified that in 1910
and 1911 he lived in the Philippine Islands with a woman out of wedlock;
that he followed her to Italy for a few months in 1912 and lived with
her in Italy; that he had two children as a result of his relations
with her, one of them born in the Philippine Islands and the other in
Italy. He stated that the above-mentioned "falsification of documents'
occurred just prior to his leaving the Philippine Islands to follow the
woman in question to Italy and that he was arrested for the offense in
Italy and brought back to the Philippine Islands for trial. He has not
been in Italy since 1912.
In a continuation of the hearing on April 20, 1950, the respondent
submitted proof of residence in the United States in 1936 and subsequent
thereto. He further testified in the course of this hearing, that,
following his entry into the United States in 1923 he remained in this
country until 1927 when he sailed to Colon, Panama, and that he never
returned to the United States until 1936; that from 1927 to 1936 he
sailed as a merchant seaman out of Colon, Panama, making no entries into
the United States as a merchant seaman during that time. He testified
that during the period of 1927 to 1936 or 1937 his wife lived in
Nicaragua and not in the United States, that their child was left in the
United States with an aunt during this period. He stated that he based
his claim of continued residence in the United States during this period
solely on the fact that he believed that the Panama Canal was American
territory and that it was for this reason that he stated that he had had
no absences since 1923 in filling out his petition for naturalization.
He testified that he has continued to reside in the United States since
1936 with the exception of further brief absences in pursuit of his
calling as a seaman.
He testified further with respect to the conviction in 1915 as to his
testimony "In my heart I did not do it, but in the court it said I was
guilty;' that "I did not do it myself -- I did not do it.' He admitted
that he pleaded guilty to the offense, but in answer to the question
whether he took the money in question, stated that he "did not spend
anything of the money;' that "I got no money -- that much' that he did
not use any part of the 19,000 pesos in question for his own benefit;
that he was advised to plead guilty by his attorney and that he did not
take any money.
The record shows that it has not been possible to obtain certified
copies of the information and decision in the criminal proceedings in
the Philippine Islands. However, there are made a part of the record
copies of two orders of the judge of the first instance of Manila,
sentencing the respondent to imprisonment for the crime of
"falsification of a commercial document' on two separate charges for 6
years and 1 day each, the term of imprisonment for the first charge to
begin June 16, 1915, and for the second charge to run from the
completion of the sentence of the first charge.
The penal code of the Philippine Islands of 1911, in effect at the
time of the respondent's conviction in 1915, provides: Chapter IV --
The Falsification of Documents, section I -- Falsification of Public,
Official, and Commercial Documents and Telegraphic Dispatches, article
301:
Any private individual, who shall commit any of the
falsifications enumerated in the next preceding article in any
public or official document, letter of exchange, or other
commercial document, shall suffer the penalties of Presidio Mayor
and be fined in a sum not less than 1,250 and not more than 12,500
pesetas.
Article 300 provides:
The penalty of Cadena Temporal and a fine in the sum of not
less than 1,250 and not more than 12,500 pesetas shall be imposed
upon any public officer, who, by taking advantage of his official
position, shall be guilty of falsifications:
1. By counterfeiting or imitating any handwriting, signature or
rubric.
2. By causing it to appear that persons have participated in
any act or proceeding when they did not in fact so participate.
3. By attributing to persons who have participated in an act or
proceeding statements other than those in fact made by them.
4. By making untruthful statements in a narration of facts.
5. By altering true dates.
6. By making any alteration or intercalation in a genuine
document which changes its meaning.
7. By issuing in authenticated form a document purporting to be
a copy of an original document when no such original exists, or by
including in such a copy a statement contrary to, or different
from that of the genuine original.
8. By intercalating any instrument in a protocol, registry or
official book.
The remaining portion of article 300 deals with the penalty for any
of the foregoing offenses being committed by an ecclesiastical minister.
The remaining portion of section I, similarly, appears to have no
relevancy on the facts appearing in the instant case. Section II of
chapter IV relates to the falsification of private documents. Article
304 thereunder provides that:
Any person who, to the damage of another, or with the intent to
cause such damage, shall in any private document commit any of the
acts of falsification enumerated in article 300 shall suffer the
penalty of Presidio Correccional in its minimum and medium degrees
and be fined in a sum not less than 625 and not more than 6,250
pesetas.
The only other provision in the penal code in effect at the time of
the respondent's conviction, which could by any means be deemed to have
any relevance to the conviction on the basis of the facts appearing of
record, is under section II of the chapter dealing with frauds. That
section bears the title -- "Swindling and other deceits.' Article 534
thereof provides:
Any person who shall defraud another in the substance,
quantity, or quality of anything which he shall deliver the latter
by virtue of an obligation to do so shall suffer:
1. The penalty of Arresto Mayor in its minimum and medium
degrees, if the fraud shall not exceed 250 pesetas.
2. A penalty ranging from Arresto Mayor in its medium degree to
Presidio Correccional in its minimum degree when the fraud is not
less than 250 and not more than 6,250 pesetas.
3. The penalty of Presidio Correccional in its minimum and
medium degrees, when the fraud exceeds 6,250 pesetas.
Article 535 provides: The penalties precribed by the next preceding
Article shall be imposed upon:
1. Any person who shall defraud another by the use of any
fictitious name, or by falsely pretending to possess any power,
influence, qualification, property, credit, agency, or business,
or by means of any similar deceit other than those hereinafter
enumerated.
* * * * * * *
5. Any person who, to the prejudice of another, shall convert
or misappropriate any money, goods, or other personal property
received by such person for safekeeping, or on commission, or for
administration, or under any other circumstances giving rise to
the obligation to make delivery of or to return the same, or shall
deny having received such money, goods, or other property.
6. Any person who shall commit a fraud by writing any document
above the signature in blank of another, to the prejudice of the
latter, or of any third person.
* * * * * * *
When the same offense is committed without intent to defraud,
the person guilty thereof shall be fined from 325 to 3,250
pesetas.
It will be noted that copies of the orders committing the respondent
to imprisonment indicate that the two charges arose from a conviction
for the crime of falsification of a commercial document. Copies of the
information and decision in the criminal proceedings are not available.
The foregoing orders of commitment are the only documents of record
purporting to reflect officially the exact crime of which the respondent
was convicted. The pertinent provision of the Philippine Penal Code
defining that offense is article 301, as correlated with article 300.
Article 304 relates to the "Falsification of Private Documents' and does
not appear to be relevant. Article 534 relates to various offenses
which would be included within the crime of embezzlement as understood
in this country. However, nowhere in that article is the term
"Falsification of Commercial Documents' used. It must be assumed from
an examination of the above-cited provisions of the penal code, and of a
study of the penal code in its entirety, that the respondent's
conviction could only have occurred under article 301 and article 300 of
the penal code.
An examination of article 301 indicates that it merely sets forth the
penalty and makes reference to the commission of any of the
falsifications enumerated in article 300. In itself, article 301 makes
no reference to a criminal intent. The question presented is whether,
as defined by article 300, the offense was one necessarily involving a
criminal intent, and moral turpitude, so as to warrant deportation for a
conviction of the violation thereof. A reading of the eight
subdivisions of article 300 makes it apparent that a criminal intent is
nowhere made an element of the offense. In this connection, in Weems v.
United States (217 U.S. 349, 363), involving a conviction of a public
official on a charge of falsifying a cashbook, the conviction occurring
under article 300, the court stated "A false entry is all that is
necessary to constitute the offense.' The court went on to point out
that whether an offender against the statute injures anyone by his act
or intends to injure anyone is not material. It is true that the
discussion in that case had relation to an offense by a public official,
and the falsification of a public document as distinguished from a
commercial document. However, it is significant in an analysis of the
statute in question, as indicating that the statute does not require a
criminal intent of such nature as to warrant a finding that a conviction
under either article 301 or 300 is a conviction for a crime involving
moral turpitude. In view of the foregoing, we are unable to sustain the
charges based on the offense committed in 1915 in the Philippine
Islands.
The remaining question concerns the stipulation entered into between
the respondent and this Service wherein it was agreed for the purpose of
the proceedings that the respondent had established a residence in the
United States prior to May 1, 1934, which he never abandoned. Despite
this stipulation, the examining officer, with the consent of the hearing
examiner, questioned the respondent at length with respect to absences
from the United States subsequent to May 1, 1934, and lodged a charge
under the Immigration Act of 1924 predicated on evidence thus obtained
of absences subsequent to May 1, 1934, and reentry as an immigrant
thereinafter.
The general principles of law applicable to stipulations are well
established. Thus, in the absence of fraud, mistake, or imposition,
stipulation admitting or agreeing on the existence of designated facts
for the purpose of the trial are binding and conclusive upon the parties
as to the facts so designated (Schmertz Wire Glass Company v.
Continuous Press Glass Company, 216 Fed. 828), as long as the
stipulation stands. They are binding upon the court as well as on the
parties (Haese v. Heitzeg, 159, Cal. 569, 114 P. 816). The rule that
the parties to a stipulation are bound thereby has been held to apply to
the Federal Government as well as to individuals (Hackfeld & Company v.
U.S., 197 U.S. 442). The rule has been otherwise put that a stipulation
as to a fact "permits the fact to be taken for granted by the judge, the
jury, and the other party, for the purpose of the litigation in hand,
and thus precludes controverting it either by evidence or by argument'
(Wigmore, Code of Evidence, 1935, vol. IX, sections 2584, 2590, and (3d
Ed. 1942.) sec. 3131). Stipulations in administrative proceedings have
the same general effect as in judicial proceedings (Federal Trade
Commission v. A. E. Staley Manufacturing Company, 324 U.S. 746, 758 ff:
Commissioner of Internal Revenue v. West Production Company, 121 F.(2d)
9)
However, a stipulation involving an interpretation of a statute
(Salomon v. United States, 7 Cust. A. 5), or which affects the interest
of individuals, which cannot be ascertained in advance of the
adjudication of the cause (In re: Dardis, 135 Wis. 457), is invalid.
Also, the general rule that stipulations admitting the existence of
facts for the purpose of the trial, are conclusive on the parties, does
not apply where it appears from the manner in which the case was tried
that the stipulation was ignored (60 C.J. 68). More generally stated,
the rule is that while it is the policy of the court to enforce
stipulations, unless good cause is shown for not doing so, nevertheless,
stipulations will not be enforced under all circumstances. The court in
its discretion may set aside a stipulation on numerous grounds, such for
instance, as fraud, undue influence, collusion, mistake, false statement
innocently made, inadvertence or improvidence in making the stipulation,
and on other grounds (Wigmore vol. IX (3d Ed.), sec. 2590). The rule
has been otherwise put that stipulations are under the control and
subject to the discretion of the court (Humphries v. Shapiro, 175 N.Y.S.
426), which has power to relieve the parties therefrom upon proper
application and assuring a sufficient cause, on such terms as will meet
the justice of a particular case. Whether or not a stipulation should
be set aside rests in the discretion of the court, and requires an
extraordinary exercise of its powers, which can be allowable and proper
only when it is made clear that it is necessary to prevent injustice
(Moffitt v. Jordan, 127 Calif. 628, 60 P. 175). A stipulation as to
the existence of certain facts may be set aside where it was induced by
false representation as to material facts, the falsity of which was
unknown to the person making them, although there was no fraud or
wrongful intent to defraud or deceive (Amsinck and Company v.
Springfield Grocer Company, 7 F.(2d) 855). However, where there was no
mistake of fact, but merely a lack of the full knowledge of the facts,
which was plainly due to failure to exercise due diligence to ascertain
them, this did not constitute a ground for relief against a stipulation
(Di Donato v. Rosenberg, 245, N.Y.S. 675, 230 App.Div. 538).
The matter of interpretation of stipulations has been before the
Federal courts on numerous occasions. The case of American Food
Products Company v. United States (73 C.Cls. 526), holds that where in
the trial of a case, evidence adduced throws grave doubt upon a
stipulation entered into by the parties and justice requires that the
stipulation be set aside, the court will so order. The case of
Grissinger v. United States (77 C.Cls. 106, certiorari denied, 290 U.S.
676), holds that an erroneous stipulation of fact by the parties to a
suit may be disregarded and the case considered and determined upon the
facts disclosed by the record. To the same effect, it has been held
that the Court of Claims is not bound by a stipulation of parties, in an
action brought by a corporation to recover an income and profits tax
paid by the company, to the effect that the plaintiff and its subsidiary
corporations filed a consolidated return for the tax year, where the
stipulation was contrary to the fact in evidence (Wilson and Company v.
United States, 15 F.Supp. 332).
With respect to the manner in which a stipulation may be set aside,
the proceeding to set aside a stipulation is summary in nature, usually
determined upon submission of affidavits and counteraffidavits of the
parties to the stipulation (Beaumont Pasture Company v. Preston, 65
Texas 448), or on motion to it (American Food Products Co. v. U.S., 73
C.Cls. 526). Where the mistake alleged as a ground in the stipulation
is apparent without any further proofs, no formal filing of affidavits
is necessary (Levy v. Sheehan, 28 P. 748, 3 Wash. 420). As indicated
above, the court may on its own initiative in the course of a
proceedings vacate a stipulation in certain circumstances, such as fraud
or when inadvertently and mistakenly agreed to and justice would be
impeded if the stipulation were adhered to (American Food Products v.
United States, supra).
It is noted that the instant proceeding was conducted under the
Administrative Procedure Act. The respondent was not represented by
counsel but does appear to have had a representative from the Philippine
consulate general. The Government was represented by an examining
officer. The hearing was held before a hearing examiner whose position
was analongous to that of the judge in a duly constituted court. As
noted above, stipulations in administrative proceedings have the same
general effect as before a court of law (Commissioner of Internal
Revenue v. West Production Company, supra). The foregoing discussion of
the applicable law indicated that while stipulations are generally
binding upon the parties, they can be set aside by the court under
certain circumstances. One such circumstance would be where the
stipulation was inadvertently and mistakenly agreed to and where justice
would be impeded if either party were held strictly to the stipulation
(American Food Products v. United States, supra).
In the course of the instant hearing evidence was introduced in the
form of the alien's testimony, which indicated that the alien was in the
United States in violation of the Immigration Act of 1924. This fact
does not appear to have been known to the examining officer at the time
that the above stipulation was entered into, nor is there anything of
record to indicate that it should reasonably have been known at that
time. It appearing from the evidence introduced that the fact stated in
the stipulation as to continuous residence since prior to May 1, 1934,
was in manifest error, and that a further violation of the immigration
laws of the United States was indicated, it rested within the sound
discretion of the hearing examiner to declare the stipulation vacated.
He appears to have taken no formal action to effect such a vacating of
the stipulation. However, his action in permitting the continuation of
the alien's examination with a view to introduction into the record of
further evidence bearing on the documentary charge, and thereafter
permitting the lodging of the additional charge, was clearly tantamount
to a vacating of the stipulation.
Admittedly, it would have been better practice for the hearing
examiner to have formally notified the alien and his representative to
this effect. However, we find no authority that such notification is
essential, or that the failure to deliver such a notification
constitutes reversible error. In this connection we note that neither
the alien nor his representative interposed any objection to the line of
questioning developing the further evidence to sustain a charge based on
entry without documents, and that at no time was the stipulation pleaded
as a bar to the introduction of the evidence, the lodging of the charge
or the finding of deportability based upon this charge, although it was
manifest that those actions were all contrary to the burden of the
stipulation. There would appear to have been a complete acquiescence on
the part of the alien and his representative to a waiver and vacating of
the stipulation. Under these circumstances we find that the
introduction of evidence contrary to the terms of the stipulation and
the lodging of a charge based upon the evidence so adduced, was not
reversible error.
The evidence of record fully sustains the charge that at the time of
his last entry, on September 16, 1945, the alien was an immigrant not in
possession of an immigration visa, and not exempted from the
presentation thereof.
Upon consideration of the entire record, the findings of fact and
conclusions of law of the hearing examiner as to deportability are
adopted with the following amendments:
C.L. (1) That under sections 19 and 20 of the act of February 5,
1917, the respondent is not subject to deportation on the ground that he
has been convicted of a felony or misdemeanor involving moral turpitude
prior to entry into the United States, to wit: Falsification of a
commercial document (two charges).
C.L. (2) That under sections 19 and 20 of the act of February 5,
1917, the respondent is not subject to deportation, in that, he admits
having committed a felony or other crime or misdemeanor involving moral
turpitude prior to entry into the United States, to wit: Falsification
of a commercial document (two charges).
With reference to the question of discretionary relief, it appears
that the alien has a United States citizen wife whom he married in 1924.
He has a citizen child and is responsible for the support of a
grandchild. He appears to have resided continuously in the United
States since 1936. He has no criminal record other than as set forth
above.
It is noted that in the petition for naturalization which he filed in
1947, and in the first hearing under the present proceedings, the alien
failed to disclose his absence from the United States from 1926 to 1936.
He also failed to reveal his arrest record in connection with his
application for naturalization and also, in 1945, in connection with his
employment by the Post Office Department failed to disclose his arrest
record. His explanations of these failures to disclose the true facts
are not altogether credible. In view of these factors, we are not
disposed to consider maximum discretionary relief.
However, as the husband of a United States citizen by marriage
occurring prior to January 1, 1948, he would appear to be eligible for
the issuance of a nonquota immigration visa. His close ?? ties in the
United States, long residence, and the absence of any serious criminal
record since 1915, justify a grant of the privilege of departing
voluntarily, coupled with preexamination. In order that the alien may
avail himself of this relief we will also grant an advance exercise of
the 7th proviso to section 3 of the Immigration Act of 1917 to permit
his return when in possession of appropriate documents, notwithstanding
possible inadmissibility as one who may admit the commission of crimes
involving moral turpitude; namely, any offense arising from the
misappropriation of funds, Philippine Island, 1915, and perjury in
connection with his petition for naturalization, his application for
employment by the Post Office Department in San Francisco in 1945 and in
these proceedings.
Order: It is ordered that an order of deportation be not entered at
this time but that the alien be required to depart from the United
States, without expense to the Government, to any country of his choice
within 60 days after notification of decision, conditioned upon
arrangements being made with the local immigration office for
verification of departure.
It is further ordered that preexamination be authorized.
It is further ordered that if the alien applies for admission into
the United States within 3 months after his authorized departure he be
admitted under the 7th proviso to section 3 of the Immigration Act of
1917, if otherwise admissible than as one who may be deemed to have been
convicted of or to have admitted the commission of crimes involving
moral turpitude; namely, any offense arising from misappropriation of
funds, Philippine Islands, 1915 and perjury, in connection with his
naturalization proceedings, 1947, his application for employment by the
Post Office Department, San Francisco, 1945, and in these proceedings,
subject to revocation in the discretion of the Attorney General after
hearing, if the alien subsequently commits any offense.
Crime involving moral turpitude -- Wilful false swearing to a material fact in a naturalization proceedings (8 U.S.C. 414) -- Admission of the commission thereof prior to entry -- Deportability, if at time of last entry subject had status of a "naturalized' citizen, but whose naturalization was canceled, ab initio, later for fraud -- Application of doctrine of "relation back' in the case of a returning legal resident (a) as to documentary charge, (b) as to other charges.
(1) The construction of the Immigration Act of 1924 to require an immigration visa at the time of last entry in the case of a returning legal resident, having the status of a "naturalized' citizen at the time of last entry but whose "naturalization' was later canceled for fraud, was rejected in Matter of C , A-5982828, Atty. Gen., January 6, 1950, 3, I. & N. Dec. 275.
(2) Insofar as the above documentary charge alone is concerned, there is not applied the doctrine of "relation back' to wipe out the naturalization ab initio so that the person might be deemed to have never become a citizen by a "naturalization' procured by fraud (in the case of a returning legal resident). But this is not the case as to other charges which are involved, like criminal charges under the Immigration Act of February 5, 1917, as amended (even though the alien was legally admitted for permanent residence in the first instance).
(3) Wilful false swearing to a material matter in a naturalization proceeding in violation of 8 U.S.C. 414 (of which the subject was convicted after entry) is an offense involving moral turpitude, and a plea of guilty during the course of prosecution is a confession of guilt sufficient to justify deportation, as one who admits the commission of such offense prior to entry and thus inadmissible as an alien at the time of last entry.
CHARGES:
Warrant: Act of 1924 -- No visa.
Act of 1917 -- Admits commission of crime prior to entry --
"perjury.'
Discussion: This matter is before us by reason of a motion filed by
counsel wherein he asks that the hearing be reopened and the matter
reconsidered by reason of errors of law in the prior determination.
The subject of this proceeding testified that he was born in
Brudnice, Poland (then Russia), on August 13, 1892, and that he was a
citizen of the country of his nativity. The record discloses that the
petitioner first arrived in the United States at Baltimore, Md., on
August 23, 1905, as a passenger on the S.S. Cassel subsequent to which
arrival he was lawfully admitted to the United States for permanent
residence. On December 23, 1932, this person was naturalized as a
citizen of the United States in the Supreme Court of the State of New
York, county of Queens. He remained in this country until June 6, 1936,
when he proceeded abroad for a visit and his last arrival occurred at
New York on September 11, 1936, as a passenger ex-S.S. Europa at which
time he was admitted as a citizen of the United States.
Following his last arrival to this country the certificate of
naturalization hereinabove referred to was canceled on July 28, 1938.
The petitioner was married on July 17, 1912. That marriage was
dissolved on March 14, 1932, by divorce.
Two children were born of that union who are now adults. On June 29,
1932, this individual was again married to one who obtained a mail order
dissolution of her marriage in Mexico. He is separated from the second
wife. However, the marital situation has no material bearing on the
determination of this case.
On July 25, 1940, the petitioner was ordered deported to the U.S.S.
R. for the reason that at the time of his last entry he was an immigrant
who required an unexpired immigration visa pursuant to the provisions of
section 13 of the Immigration Act approved May 26, 1924 (8 U.S.C., sec.
213(a)); and for the further reason that he admitted the commission of
perjury, a crime involving moral turpitude, prior to his last entry
(sec. 19, act of February 5, 1917) (8 U.S.C., sec. 155).
Counsel contends first that the documentary cause for deportation is
not supported in law because the theory of relation back is no longer a
valid one. This condition is predicated on the decision in the Matter
of C , file A-5982828, decided August 10, 1948, and approved by the
Attorney General on January 6, 1950 (3, I. & N. Dec. 275). In that case
it was said, among other things:
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. We do not think this legal fiction
must be universally applied in every situation regardless of the
particular circumstances involved. For example, we hardly think
that a man in respondent's position who exercised his rights of
citizenship prior to the cancellation of his certificate of
naturalization could be punished for so acting even though,
through the operation of the doctrine of relation back, he was an
alien at the time he exercised those rights and even though his
acts might be said to have been illegal. 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. "Respect for law does not
thrive on captious interpretations.' Delgadillo v. Carmichael, 92
L.Ed.Adv.Op. 69, 71 (332 U.S. 388 (1947)). To construe the 1924
Act to require the impossible strikes us as a captious
interpretation, an interpretation that we do not think Congress
could have intended.
As to the first cause for deportation, counsel would appear to be
correct on the basis of the precedent hereinabove cited. However, there
is involved in the present case an allegation of the admission of the
commission of a crime involving moral turpitude prior to entry, to wit,
perjury, in connection with certain false statements made by him during
the course of the naturalization proceeding.
If the admission of the commission of the crime of perjury, which
offense has been held to involve moral turpitude, is sustained then the
decision of this Board of April 25, 1950, in the Matter of A , A-2119655
would apply. In that case this Board said, among other things, that the
Matter of C , decided August 10, 1948 (supra), relates back merely to
the documentary charge but does not eliminate criminality. In the
Matter of A , A-2119655 this Board said, among other things:
The recent decision of the Supreme Court in U.S. ex rel.
Eichenlaub v. Shaughnessy and U.S. ex rel. Willumeit v.
Shaughnessy, 338 U.S. 521 (January 16, 1950), is applicable here.
These cases relate to naturalized United States citizens convicted
of conspiracy to violate the Espionage Act of 1917. Subsequently
citizenship was canceled on the ground of fraud in the
procurement; and after hearings, deportation was ordered under
the Act of May 10, 1920. The court there held that the provision
in the act, May 10, 1920, which subjects to deportation "aliens
who since August 1, 1914, have been or may hereafter be convicted
of a violation, or conspiracy to violate, any of the acts
specificed therein' does not require that the offenders must have
had the status of aliens at the time they were convicted but is
applicable to those denaturalized before or after their
convictions as well as those who have never been naturalized. The
court stated that the convictions for designated offenses were
important conditions precedent to being found undesirable
residents, the status as aliens being a further condition of
deportability. Upon the meeting of both conditions, and after
hearing, the requirements of the Act were satisfied.
The cancellation of the respondent's naturalization related
back to the date of its grant, and hence in contemplation of law
he was never a citizen of the United States. Even though when the
respondent last entered as a citizen, he was, in accordance with
subsequent adjudication, an alien. As an alien, he was within an
inadmissible class, to wit: An alien who has been convicted of
and admits the commission of a crime involving moral turpitude.
In view of these facts and U.S. ex rel. Eichenlaub v.
Shaughenessy (supra), and U.S. ex rel. Willumeit v. Shaughnessy
(supra), we find that the alien is subject to deportation on the
criminal charges.
In the case under consideration the petitioner did not plead guilty
to the indictment until April 4, 1938, considerably subsequent to his
last entry to this country. We must therefore rely upon his admission
of the commission of the offense of perjury and in that connection the
record does not contain a definition of the offense. This individual
was asked:
Q. When you testified under oath on April 4, 1930, you knew
that you were testifying falsely that you were committing perjury?
A. Yes.
The proceeding contains a copy of an indictment wherein it would
appear that the alien gave false testimony as to a material fact in a
naturalization proceeding in violation of title 8, section 414 of the
United States Code in that he knowingly procured naturalization in
violation of the provisions of the naturalization laws. In the Matter
of J , decided by this Board on March 1, 1945, the Solicitor General on
May 29, 1945, stated that the rules pertaining to the admission of the
commission of a felony or other crime or misdemeanor are to be observed
as follows:
(1) It must be clear that the conduct in question constitutes a
crime or misdemeanor under the law where it is alleged to have
occurred.
(2) The alien must be advised in a clear manner of the
essential elements of the alleged crime or misdemeanor.
(3) The alien must clearly admit conduct constituting the
essential elements of the crime or misdemeanor and that he
committed such offense. By the latter is meant that he must admit
the legal conclusion that he is guilty of the crime or
misdemeanor.
(4) It must appear that the crime or misdemeanor admitted
actually involves moral turpitude, although it is not required
that the alien himself concede the element of moral turpitude.
(5) The admissions must be free and voluntary.
8 U.S.C., sec. 414 which has since been repealed provided as
follows:
Procuring naturalization illegally; aiding unauthorized
proceedings; false testimony. -- Any person who knowingly
procures naturalization in violation of the provisions of this
chapter shall be fined not more than $5,000, or shall be
imprisoned not more than 5 years, or both, and upon conviction the
court in which such conviction is had shall thereupon adjudge and
declare the final order admitting such person to citizenship void.
Jurisdiction is hereby conferred on the courts having
jurisdiction of the trial of such offense to make such
adjudication. Any person who knowingly aids, advises, or
encourages any person not entitled thereto to apply for or to
secure naturalization, or to file the preliminary papers declaring
an intent to become a citizen of the United States, or who in any
naturalization proceeding knowingly procures or gives false
testimony as to any material fact, or who knowingly makes an
affidavit false as to any material fact required to be proved in
such proceeding, shall be fined not more than $5,000, or
imprisoned not more than 5 years, or both.
In the instant case the alien has made an unqualified admission of
the commission of a crime and the Attorney General has held that a
willful, false swearing to a material matter ordinarily is an offense
involving moral turpitude (1938, 39 Op.Atty.Gen. 215). See also Howes
v. Tozier, 2 F.(2d) 268 C.C.A. 1925, 3 F.(2d) 349.
A plea of alien of guilty during the course of prosecution has been
held to be a confession of guilt sufficient to justify deportation.
(See Blumen v. Haff 78 F.(2d) 833, (C.C.A. 9, 1935) certiorari denied,
1935, 296 U.S. 644, 80 L.Ed. 458.)
In view of the foregoing it is our conclusion that the alien is
subject to deportation because of the admission of the commission of a
crime involving moral turpitude. He has however resided in the United
States for upward of 7 years. Counsel has submitted a number of letters
as to the alien's present good character. However before final
determination of remedial relief the Board is of the opinion that a
thorough character investigation should be made. Accordingly, the
hearing will be ordered reopened.
Order: It is ordered that the order and warrant of deportation be
and the same are hereby withdrawn and that the hearing be reopened in
order that a thorough character investigation may be made and an
application received for such remedial relief as may be warranted.
Subversive, adherent of principles directed toward destruction of free competitive enterprise, etc. -- Act of June 25, 1948, as amended -- "Voluntary' nature thereof -- Evidence of ideological conviction.
While a governmental or public institution, in a totalitarian country (Russia in this case), must carry out the directives and serve the purposes of the Party and of the Government in power, any adherence to the political or economic system or philosophy of the Communist Party of Russia and of the Government of the Soviet Union on the part of a physician employed in a Russian medical dispensary run by that government and on the part of a graduate nurse employed in a Russian children's hospital run by that government was found to be involuntary under the circumstances evidenced in this case, and the aliens were not found to be inadmissible under the provisions of section 13 of the act of June 25, 1948 as amended.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of June 25, as amended -- Adhered to etc., the principles of any political or economic system directed to the destruction of free competitive enterprise, etc. (adult appellants).
Act of June 25, 1948, as amended -- Not eligible displaced persons
(adult female appellant and child appellant).
Discussion: The record relates to a 38-year-old married male, native
of Turkey and citizen of Russia, his 32-year-old wife and their
8-year-old son, natives and citizens of Russia who applied for admission
into the United States for permanent residence at Munich, Germany, on
October 9, 1950. They were held for examination before a board of
special inquiry so that their admissibility into the United States under
the Displaced Persons Act of 1948, as amended, might be determined. At
the conclusion of the hearing on January 3, 1951, they were held to be
inadmissible on the grounds stated above and they have appealed from
such decision.
The adult male appellant studied medicine in Russia from 1932 to
1937, then went to Iran and worked there as a physician until 1939. He
returned to Russia in 1939 and was employed as a physician by an
expedition in Turkistan. From 1940 to August 1941, he was employed in a
medical dispensary in Klin, Russia, which dispensary was part of the
Public Health Service of Russia. In August 1941 he was interned by the
Russians because of the war between Russia and Iran, but was liberated
by the Germans in August 1942. Thereafter he was employed as a
physician, doing work for temporary municipalities in Russia. He claims
that during the period of employment in Russia he was not required to
join a trade union because of his former Iranian citizenship. He has
further testified that he was never pro-Communist and that he considered
himself to be an enemy of Russia. The female appellant testified that
she attended a school for nursing in Moscow, and was employed as a
graduate nurse from June 1940 to June 1941 in a children's hospital in
Moscow. She further stated that she had never been a member of the
Communist Party and that she had never belonged to any organization
affiliated with the Communist Party.
The adult male appellant has testified that his employment as a
physician in the medical dispensary was equivalent to employment by the
Russian Government. We also regard the female appellant's employment as
a nurse in the children's hospital in Moscow as employment by the
Russian Government. Both of them testified that they were not
pro-Communist and that they were never members of the Communist Party or
any of its affiliates. The issue is whether adult appellants are
inadmissible under the provisions of section 13 of the Displaced Persons
Act of 1948, as amended, in that by virtue of their employment by the
Russian Government they adhered to, advocated, or followed the
principles of a political or economic system or philosophy directed to
the destruction of free competitive enterprise and a revolutionary
overthrow of representative governments.
We recognize the fact that a governmental or public institution in a
totalitarian country must carry out the directives, and serve the
purposes, of the party and of the government in power. The adult
appellants have testified that they did not have ideological conviction
or belief in the doctrines of the party or of the government in power.
According to the record, they were never intentionally active in the
promotion of such doctrines, by word or act. After appropriate security
clearances, there is no evidence or reliable information to the
contrary. In the light of the foregoing, we find that any adherence to,
advocacy or following of, the political or economic system or philosophy
of the Communist Party of Russia and of the Government of the Soviet
Union, on the part of adult appellants, was not voluntary, and therefore
is not a basis for exclusion.
In addition, the adult female appellant and the child appellant have
been found inadmissible under the act of June 25, 1948, as amended,
because of the inadmissibility of the principal applicant. In view of
our finding that the principal applicant is admissible, that ground for
exclusion no longer exists.
Order: It is ordered that the appeals be sustained and the
applicants be found admissible to the United States upon securing valid
replacement visas.
Subversive, adherent of principles directed toward destruction of free competitive enterprise, etc. -- Act of June 25, 1948, as amended -- "Voluntary' nature thereof -- Evidence of ideological conviction.
While a government or public institution, such as an institution of learning in a totalitarian country (Russia in this case), must carry out the directives and serve the purposes of the party and of the Government in power, any adherence to the political or economic system or philosophy of the Communist Party of Russia and of the Government of the Soviet Union on the part of a teacher and supervisor of three teachers in a Russian school run by the Government (September 1940 to June 1941) was found to be involuntary under the circumstances evidenced in this case, and the alien was not found to be inadmissable under the provisions of section 13 of the act of June 25, 1948, as amended.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of June 25, 1948, as amended -- Adhered to etc. the principles of
any political or economic system or philosophy directed toward the
destruction of free competitive enterprise etc.
Discussion: The record relates to a 29-year-old single, male, native
and citizen of Russia, who applied for admission into the United States
for permanent residence, at Munich, Germany, on November 24, 1950. He
was held for examination before a Board of Special Inquiry which at the
conclusion of the hearing on December 29, 1950, held him to be
inadmissable on the grounds stated above. He has appealed from such
decision.
The record discloses that appellant attended school in Russia from
1928 to 1940, at which time he finished a teacher's course. From
September 1940 to June 1941 he was a teacher in a primary school in
Dombrovice, Russia, which territory had been part of Poland but was
taken over by the Russian Government in 1939. The school was operated
by the district government of public education and appellant was the
supervisor of three other teachers at this school. Appellant reported
to the supervisor of the district department of public education and
consulted with him about once every 3 months.
Appellant testified that a course in history was not taught in the
school he conducted or supervised. He claimed that no members of the
pioneer or Komsomol groups were in attendance at the school, and that
neither he nor the other three teachers belonged to a guild or
organization of teachers. Appellant testified that he taught the
Ukrainian and Russian language, botany, and physical culture at this
school.
His father had been a kulak, as a result of which he was persecuted
in that the assets of his father, including the home, were confiscated
and his father given a 6-month sentence at forced labor. He belonged to
no trade union because he was the son of a kulak. When he first
obtained employment he did not disclose his ancestry but subsequently,
it was known to the director of the teachers' courses that he was the
son of a kulak. He was never approached to join the Communist Party or
its affiliates, never attended any meetings conducted by members of the
Communist Party, was persecuted by the Communists, and is
anti-Communist.
The issue of whether appellant is inadmissable under the provisions
of section 13 of the Displaced Persons Act of 1948, as amended, in that
by virtue of his employment as a primary school supervisor and teacher
by the Russian Government he adhered to, advocated, or followed the
principles of a political or economic system or philosophy directed
toward the destruction of free competitive enterprise and a
revolutionary overthrow of representative governments.
We recognize the fact that a governmental or public institution, such
as an institution of learning, in a totalitarian country, must carry out
the directives, and serve the purposes, of the party and of the
government in power.
The applicant has testified that he did not have ideological
conviction or belief in the doctrines of the party and of the government
in power. According to the record, he was never intentionally active in
the promotion of such doctrines, by word or act. After appropriate
security clearances, there is no evidence of reliable information to the
contrary. In the light of the foregoing, we find that any adherence to,
advocacy or following of, the political or economic system or philosophy
of the Communist Party of Russia and of the Government of the Soviet
Union, on the part of appellant, was not voluntary, and therefore is not
a basis for exclusion.
Order: It is ordered that the appeal be sustained and the applicant
be found admissible to the United States upon securing a valid
replacement visa.
Subversive, proscribed organization -- Member of an organization affiliated with the Communist Party of Russia -- Act of 1918, as amended -- Member of trade union of laborers in Russia, while working there as a mechanic.
While a trade union of laborers in Russia is found to be an organization affiliated with the Communist Party of Russia, a member of such trade union while working as a mechanic in Russia is not inadmissible under the act of 1918, as amended, because membership in such trade union was found to be involuntary.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1918, as amended -- Membership in an organization affiliated with the Communist Party of Russia (male appellant).
Act of 1917 -- Convicted of crime involving moral turpitude: Violation of section 259, German Criminal Code -- Receiving stolen goods (female appellant).
Act of June 25, 1948, as amended -- Not an eligible displaced person
(female appellant).
Discussion: This record relates to a 35-year-old male (principal
applicant) and his 26-year-old wife, natives and citizens of Russia, who
applied for admission into the United States at Schweinfurt, Germany, on
December 2, 1950. On December 21, 1950, they were examined by a Board
of Special Inquiry for determination of their admissibility under the
Displaced Persons Act of 1948, as amended. They were excluded on the
above-mentioned grounds. This matter is now before us on appeal.
The female alien was convicted at Nuremberg, Germany, on July 14,
1947, for violation of section 259, German Criminal Code on a charge of
receiving stolen goods. Under this German law a person who receives
stolen property without knowledge that it is stolen, but under
circumstances which should lead him to make inquiry, is nevertheless
guilty of the crime. Where property is acquired without knowledge that
it is stolen or without intent to deprive the rightful owner of his
possession, the offense does not involve moral turpitude. (Matter of K
, 2, I. & N. Dec. 90 (B.I.A. 1944)).
The female alien admits that she was convicted of receiving stolen
goods but does not admit any facts which indicate that she acquired the
property with wrongful intent. We therefore conclude that the evidence
is not sufficient to sustain the charge that the crime for which she was
convicted involves moral turpitude.
According to their testimony, the applicants lived in their native
country until 1943, when the male alien was deported to Germany by
German authority. The female applicant accompanied him. The male alien
testified that the property of his family was confiscated in 1930, and
his father and brother deported. The male applicant stated that he was
never a Communist, or Communist Party member. The female alien stated
that she was never a Communist and never belonged to any organizations.
The male applicant was employed in Russia as a mechanic from 1930 to
1947. He testified that while so employed, he was required to be and
was, a member of a trade union of laborers. Dues for this organization
were deducted from the salaries of its members.
The male applicant admitted that this organization was dominated by
the Communist Party of Russia. He asserted, however, that he did not
attend union meetings other than those occurring on important holidays,
when attendance was compulsory.
The male alien was found inadmissible to the United States under
section 1(2)(C)(v) of the act of October 16, 1918, as amended by section
22 of the Internal Security Act of 1950, on the ground that he was a
member of an organization which is an affiliate of the Communist Party
of Russia.
The male applicant admits that he belonged to a trade union of
laborers in Russia. Because it was controlled by the Communist Party of
Russia, we hold that this trade union falls within the purview of the
act of October 16, 1918, as amended, as an organization affiliated with
the Communist Party of Russia.
An amendment to the Internal Security Act of 1950, approved March 28,
1951 (Public Law 14, 82d Cong., H.R. 2339) authorized and directed the
Attorney General to provide by regulations that the terms "members of'
and "affiliated with,' where used in the act of October 16, 1918, as
amended, shall include only membership which is or was voluntary. Part
174.1(i) of title 8, Code of Federal Regulations was promulgated in
conformity therewith.
The practice in totalitarian countries of forcing workers to join
organizations such as trade unions is recognized by us. The record in
this case contains uncontradicted testimony by the alien that his
membership was not of his own volition, and that he did not, in whole or
in part, join or remain a member because of ideological conviction or
belief in the doctrines of Communism. The record shows that he has
never intentionally been active in the promotion of such doctrines by
active membership, as evidenced by word or act. After appropriate
security clearances, there is no evidence or reliable information
refuting any part of the foregoing. Accordingly, we find that in the
instant case the record establishes that the former membership of the
male applicant in a trade union was not voluntary, and therefore is not
a basis for exclusion.
The female applicant has been found inadmissible under the act of
June 25, 1948, as amended, because of the inadmissibility of her
husband. That ground for exclusion disappears in the face of our
finding that the male applicant is admissible.
Order: It is ordered that the appeal be sustained and the applicants
be found admissible to the United States upon securing valid replacement
visas.
Subversive, proscribed organization -- Member of an affiliate of the Communist Party of Russia -- Act of 1918, as amended -- Service in the armed forces of Russia -- (See Interim Decision #255, 4, I. & N. Dec. 336).
Service, whether voluntary or not, in the armed forces of Russia, should not be regarded, of itself, as membership in or affiliation with a proscribed party or organization, so as to constitute a basis for exclusion under the act of 1918, as amended.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1918, as amended -- Member of an affiliate of Communist Party of Russia (male appellant).
Act of June 25, 1948, as amended -- Not eligible displaced person
(female appellant).
Discussion: The record relates to a 45-year-old married male and his
23-year-old wife, natives and citizens of Russia, who applied for
admission into the United States at Munich, Germany, on December 1,
1950, and were held for examination before a board of special inquiry,
so that their admissibility under the Displaced Persons Act of 1948, as
amended, might be determined. At the conclusion of the hearing on
January 2, 1951, they were held to be inadmissible on the grounds stated
above and they have appealed from such decision.
The record discloses that the male appellant was drafted into the
Russian Army in June 1941 as a result of total mobilization and that he
served therein until August 1941 when he was taken a prisoner of war by
the Germans. He was a soldier in the infantry.
The male appellant has furthermore testified that his father, who had
been a priest, was imprisoned in 1919 as an enemy of the State, that the
husband of the male appellant's sister was sent to Siberia and that the
male appellant could not study in Russia because he was excluded from
the school system. He claims that he never joined a trade union in
Russia and was unable to obtain permanent work because he was deemed to
be an enemy of the people. He furthermore stated that he never belonged
to any organization affiliated with the Communist Party. The female
applicant testified that she never belonged to any organization
advocating communism, or to any affiliate of the Communist Party.
The issue in this case is whether the male appellant is, because of
his service in the Russian Army, inadmissible under the act of October
16, 1918, as amended, as a former member of an organization affiliated
with the Communist Party of Russia.
It is our view that service, whether voluntary or not, in the armed
forces of Russia, should not be regarded, of itself, as membership in or
affiliation with a proscribed party or organization. The male
appellant's military service in Russia is therefore not, of itself, a
basis for exclusion.
The female appellant has been found inadmissible because of the
finding of inadmissibility of the principal applicant. In view of our
finding that he is admissible, that ground for exclusion of the female
appellant no longer exists.
Order: It is ordered that the appeals be sustained and the
applicants be found admissible to the United States upon securing valid
replacement visas.
Citizenship -- Acquisition at birth by child born abroad between May 24, 1934, and January 13, 1941 -- R.S. 1993, as amended by the act of May 24, 1934 -- Retention conditions -- Section 201(g) and (h) of the Nationality Act of 1940 -- (See Int. Dec. No. 242).
A child acquired United States citizenship at birth abroad on February 18, 1935, to a native-born United States citizen parent, under R.S. 1993, as amended by the act of May 24, 1934 (the other parent being an alien); and such citizenship status did not cease because he has not taken up residence in the United States by the time he reached the age of 16 years, as required by section 201(g) and (h) of the Nationality Act of 1940 (the child arriving in the United States, with the intention of residing here permanently, just prior to his 16th birthday, at Shemya, Aleutian Islands, Alaska).
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 -- No Immigration visa.
Executive Order No. 8766 -- No passport.
Discussion: This record relates to a native of China, single, who
arrived at the port of New York on February 19, 1951, ex Trans-Canadian
plane CF-TFG. He applied for admission as a United States citizen. He
was held for a Board of Special Inquiry which found that he had ceased
to be a citizen by reason of his failure to comply with the requirements
of section 201(g) and (h) of the Nationality Act of 1940. He was
thereupon excluded as an alien not in possession of an unexpired
immigration visa, and as one who did not present an unexpired passport
or official document in the nature thereof. He has appealed from the
excluding decision.
The appellant was born on February 18, 1935. His mother is a native
and citizen of China. The evidence satisfactorily establishes that his
father is a native-born citizen of the United States. Section 201 of
the Nationality Act of 1940 provides, in part:
(g) A person born outside the United States and its outlying
possessions of parents one of whom is a citizen of the United
States, who, prior to the birth of such person, had had 10 years'
residence in the United States or one of its outlying possessions,
at least 5 of which were after attaining the age of 16 years, the
other being an alien: Provided, that in order to retain such
citizenship, the child must reside in the United States or its
outlying possessions for a period or periods totaling 5 years
between the ages of 13 and 21 years: Provided further, That, if
the child has not taken up a residence in the United States or its
outlying possessions by the time he reaches the age of 16 years,
or if he resides abroad for such a time that it becomes impossible
for him to complete the 5 years' residence in the United States or
its outlying possessions before reaching the age of 21 years, his
American citizenship shall thereupon cease.
* * * * * * *
(h) The foregoing provisions of subsection (g) concerning
retention of citizenship shall apply to a child born abroad
subsequent to May 24, 1934.
In arriving at the conclusion that the appellant was an alien, the
Board pointed out that he had arrived in New York when he was 16 years
and 2 days old.
The appellant traveled to the United States by air. During the
course of the hearing he testified that he left Hong Kong on February
15, 1951; that be first landed at Okinawa; then at Tokyo; then at
someplace whose name he did not know; then at Vancouver where he was
examined by United States immigration officers and where he remained for
1 day and 2 nights; and finally at New York. His counsular travel
affidavit bears the stamp of this Service showing that primary
inspection in his case was deferred at Vancouver, British Columbia,
Canada, on February 16, 1951, and that the plane on which he traveled
was CPA Flight 306/15 from Hong Kong to Vancouver, British Columbia.
When counsel appeared before the Central Office he presented a letter
dated March 20, 1951, signed by J. D. Roach, general agent of the
Canadian Pacific Railway; Minneapolis, St. Paul & Sault Ste. Marie
Railroad; and the Canadian Pacific Airlines, Limited, the pertinent
portion of which reads as follows:
The Canadian Pacific Air Lines at Vancouver advise that Flight
306 on which Q N J was a passenger ex Hong Kong February 15
arrived Shemya 5:36 a. m. February 16 and left Shemya 7:57 a. m.
the same date, Shemya Local Time. Flight did not stop at
Anchorage and arrived Vancouver 8:50 p. m. February 16.
Counsel contends that since Shemya belongs to the United States and
as the applicant arrived there prior to his 16th birthday, he did not
relinquish under section 201(g) of the Nationality Act of 1940, the
United States citizenship which he acquired at birth under section 1993
of the Revised Statutes, as amended by the act of May 24, 1934.
Section 101(d) of the Nationality Act of 1940 provides "The term
"United States' when used in a geographical sense means the continental
United States, Alaska, Hawaii, Puerto Rico, and the Virgin Islands of
the United States.' Shemya is located in the Aleutian Islands. The
Aleutian Islands are included in the territory ceded to the United
States by Russia by the treaty of March 30, 1867. 48 U.S.C. 21 (act of
August 24, 1912) provides that "The territory ceded to the United States
by Russia by the treaty of March 30, 1867, and known as Alaska, shall be
and constitute the Territory of Alaska under the laws of the United
States, the Government of which shall be organized and administered as
provided by said laws.' Shemya is, therefore, part of the United States
within the meaning of that section.
Section 104 of the Nationality Act of 1940 provides that "For the
purposes of sections 201, 307(b), 403, 404, 405, 406, and 407 of this
act, the place of general abode shall be deemed the place of residence.'
The appellant has testified that he was coming to this country to
reside permanently. As soon as he arrived in the United States with
that intention, it immediately became his place of general abode. Thus,
if he had landed at New York prior to his 16th birthday, there would be
no question that his place of residence had then become the United
States and that he had retained his citizenship. Merely because he
entered at Shemya and then had to leave the United States for a short
period en route to his final destination would not change that fact. We
find therefore, that upon his arrival at Shemya on February 16, 1951,
which was two days prior to his 16th birthday. he took up his place of
residence in the United States. He is, therefore, a citizen of this
country and his appeal must, therefore, be sustained.
Order: It is ordered that the appeal be sustained and the appellant
admitted to the United States as a citizen.
Citizenship -- Acquisition by child born abroad of alien mother and United States citizen natural father (1877) -- Effect of legitimation -- Section 320 of California Civil Code.
A child, born abroad in 1877 to an alien mother and a United States
citizen natural father, was legitimated subsequently under the
provisions of sec. 320 of the California Civil Code; the retroactive
effect of such legitimation resulted in the child's acquisition of
citizenship as of the time of birth, under the act of February 10, 1855
(10 Stat. 604). (See R.S. 1993 prior to its amendment by act of May 24,
1934.)
Discussion: The applicant claims to have acquired United States
citizenship at birth in Germany on September 13, 1877, under the
provisions of the act of February 10, 1855 (10 Stat. 604), as a child of
a United States citizen father.
The question presented is whether the applicant has established that
she is the lawful child of the person through whom United States
citizenship is claimed.
The record shows that the applicant was born at Munich, Germany, on
September 13, 1877. Only the name of her mother appears on her birth
record. The applicant has been unable to establish that her parents
were ever married ceremonially or otherwise. The applicant came to the
United States in September 1894 and she has since resided in this
country. She was married to a native of England on January 1, 1900, at
New York, N.Y. He is now deceased. No record of his having been
naturalized in the United States has been found. The applicant claims
that Mr. T W , an American artist was her father. She testified that
her earliest recollection of him was when she was about 5 or 6 years of
age, then living in the Latin Quarter of Paris, France, with him and her
mother. She recalled attending a kindergarten in Paris, and the
quarrels of her parents, shortly after which her father left, and she
accompanied her mother and a brother from Paris to Germany, where
friends of her mother's family took her into their home. She stated
that this occurred in October 1883, and that her mother returned to
Paris. While the applicant was under the impression that the people
with whom she lived in Germany heard from her father, she "never got to
see the letters,' and she did not see her father from 1883 to 1913. The
applicant had told her husband about her father, and in mingling with
other artists the applicant's husband heard that her father was a member
of the "Bohemian Club.' The applicant obtained her father's address from
that organization and corresponded with him. He was then residing in
Santa Barbara, Calif., and the applicant was living in San Francisco,
Calif., with her husband and their two children. Evidence of record
establishes that after hearing from the applicant in 1913, her father
sent her a telegram on September 24, 1913, advising that he would "come
Monday 29th have written.' The applicant testified that her father then
visited at her home in San Francisco for about 3 days. She stated that
he was pleased with her paintings (water colors) and provided her with
expensive artists' equipment, and encouraged her in her art work. He
invited her to his home and offered to assist her in the care of her two
children. Due to her husband's feelings she did not then visit her
father. After writing to her father concerning her husband's attitude,
he wired her on October 5, 1913, to come to him first (before returning
to a former position in Oregon) and that he would assist her. On the
following day, the applicant's father sent her another telegram stating
that he would "meet you at boat Friday morning. Have written.' In the
meantime the applicant had written to her father advising that she
thought it best not to go to Santa Barbara, because of her husband's
attitude, and her father provided her with money for traveling expenses
to Portland, Oreg. In his letters to the applicant under dates of
October 3, and 6, 1913, the said Mr. W referred to the applicant as "my
dear little girl' and "dear daughter,' respectively. Further evidence
in the record of his acknowledgment of the applicant as his daughter is
found in the fact that the author of his biography has referred to the
applicant as his daughter, and on January 18, 1920, Mr. W 's widow wrote
to the applicant, in part, as follows:
I didn't know your address & and have even forgotten your name
until your letter came. Yes, Mr. W had told me about you before
we were married & he used to speak of you with great affection. *
* *
In 1913, after 20 years absence, I went back East to see my
mother & sisters & while there Mr. W wrote me that he had had the
greatest surprise of his life in getting a letter from you. He
said you and the children were coming to see him. * * *
Again, in a letter to the applicant under the date of September 3,
1920, Mrs. W wrote that:
I have much to tell you about how your father always felt
toward you and of the efforts he made to come in touch with you
but I cannot do it now.
I still have the photographs of you and your brother taken in
Paris. Whenever your father looked at yours tears would come to
his eyes.
In another letter of April 26, 1922, the said Mrs. W advised the
applicant, in part, that:
If you knew anything of your father you would realize that
although he earned a good deal of money he wouldn't have had much
left if it hadn't been for my economy * * *.
The applicant testified that at the time she contacted her father in
1913 his wife was in the East and that "he wrote to her immediately
about me.' In that connection she further testified that:
Q. What was his wife's reaction to the news?
A. Oh, she was very pleased. She had heard all about it
before.
Mrs. W died about 1925. The applicant's father died in 1919 in
California. The applicant was 18 years of age when she last saw her
mother, and she now believes that her mother is dead. With respect to
the applicant's brother, she testified that "He lived with my mother's
sister in Germany and after I left Germany I never heard direct from
him. Through my correspondence with my grandmother I heard indirectly.
Later when I met him in United States (after I met my father) he told me
that he had been apprenticed in some work in Germany which he hated and
so he ran away to America. He saw my father's name in an art
publication in United States and contacted him; he lived with my father
for several years before I met my father. They were not living together
at that time.' She further stated that the last time she heard from her
brother was in 1922 or 1923, at which time he was residing in Chicago,
and that she had not been able to locate him since that time.
The evidence of record satisfactorily establishes that the said Mr.
T W was born in Indiana in 1844, and that he is the natural father of
the applicant. If the applicant could prove the marriage of her parents
she would clearly have established acquisition of United States
nationality at birth. In the absence of such proof and assuming the
applicant to have been illegitimate at birth she would have acquired
United States nationality at birth if subsequently legitimated.
The applicant's legitimation was not effected under the laws of
France. The facts of this case require a determination as to whether or
not the applicant was legitimated under the provisions of section 320 of
the California Civil Code. That statute provides as follows:
Adoption of Illegitimate Child: The father of an illegitimate
child, by publicly acknowledging it as his own, receiving it as
such, with the consent of his wife, if he is married, into his
family, and otherwise treating it as if it were a legitimate
child, thereby adopts it as such; and such child is thereupon
deemed for all purposes legitimate from the time of its birth. *
* * (The statute was enacted in 1872.)
There is no evidence of record that Mrs. W objected to the
recognition and acknowledgement of the applicant by Mr. W as his child,
receiving her as such, and otherwise treating her as if she were a
legitimate child. Since the applicant was married and lived with her
husband and two children, the matter of receiving her into the family
did not consist of actually taking her into his home.
The record shows that each of the essentials stated in the statute
have been complied with, both while the parties were domiciled in France
and subsequent to the domicile of applicant's father in California, that
is:
(1) It is established that the said T W is the natural father
of the applicant; that
(2) He publicly acknowledged himself to be the applicant's
father, both in France and after subsequently acquiring domicile
in California; that
(3) He received the applicant into his "family' as his child,
and lived with her and her mother in France, and supported the
applicant there as his child; he acknowledged the applicant as
his child to third persons, in both France and subsequently in
California, receiving her in the State of California in 1913 as
his child, without objection on the part of his wife; and he then
aided and assisted the applicant as would be expected of the
parent of a legitimate child; that
(4) He otherwise treated the applicant as a parent would be
expected to treat a legitimate child, in both France and while he
and the applicant were domiciled in California.
It is immaterial to legitimation under the said statute that the
applicant's natural parents were never married. The statute does not
expressly define what shall constitute a public acknowledgment
thereunder. The words of the statute must, therefore, be taken in their
ordinary sense. This only imports a holding out of the facts without
concealment to the knowledge of third persons. The applicant's
treatment by her father coupled with his declarations to third persons,
in France and after he and the applicant established a domicile in
California, that she is his child, constitutes evidence sufficient to
sustain a finding that he publicly acknowledged her as his own. (Estate
of Gird, 157 Calif. 534 (1910)). It has been judicially determined that
the provisions of this statute are to be liberally construed, although
in derogation of the common law. Under the provisions of the statute,
it is immaterial that the applicant was not born in California or in the
United States, that her natural parents were residing outside of the
United States at the time of her birth, and that acts of legitimation
may have occurred outside of the United States. (Estate of Lund, 26
C.(2d) 472 (1945); Wolf v. Gall, 32 Calif.App. 286; Blythe v. Ayres,
96 Calif. 532 (1892), reheard 102 Calif. 254 (1894)). There is no
proscription against the state adopting legislation which makes
legitimate within the operation of its laws children who are
illegitimate in other jurisdictions, or that such statutes be limited in
their applicability to children who were born in the state or whose
parent or parents were then domiciled in the state, or that such laws be
dependent for operation on acts occurring within the state (Estate of
Lund (supra)). The applicant's father was domiciled in California for
many years after the applicant's birth, including the year 1913 when she
contacted her father in that state, where both were then domiciled.
Since the acts of recognition by the father in France are sufficient by
themselves to satisfy the "recognition' required by the California
statute, and since the father's conduct toward the applicant in
California in 1913 likewise is sufficient to satisfy that requirement of
the law, certainly both together amply establish such recognition and
together with the other factors herein set forth establish that the
applicant was legitimated under section 320 of the California Civil
Code.
The court in the case of Estate of Gird (supra), noted that the word
"family' is not a technical word and that it is of flexible meaning.
The court stated that the word was to be construed in accordance with
the context of the statute and, also, from the subject matter to which
it relates, and that every case must depend upon its particular
circumstances. The court held that the "family' contemplated by this
statute may consist only of the woman with whom the father is living
with out of marriage and their illegitimate child. Her father's taking
the applicant into his family circle in the United States did not
consist of her entering his home or residing there, as she was then
married and at first living with her husband and children and later
returning to Oregon to resume employment there. The case of Louie Wah
You v. Nagle, 27 F.(2d) 573 (1928), establishes that legitimation under
section 320 of the Civil Code of California suffices to confer United
States nationality under the nationality laws of this country.
Under the provisions of the statute under consideration, as construed
by the courts of California, it is immaterial whether the legitimation
occurred during the applicant's minority or thereafter. (Estate of Lund
(supra)). The age limitation for legitimations under the Nationality
Act of 1940, is not applicable to the instant case. (Matter of L ,
0500-23945, 0501-9733, C.O. 1948 (Int. Dec. 144, 3, I & N. Dec. 225)
Since the effect of the applicant's legitimation is retroactive and
confers the full status and rights of a legitimate child as of the date
of her birth, the prior order in this case entered on November 16, 1949,
denying the application should be withdrawn, and the application
granted.
Order: It is directed that the order entered in this case on
November 16, 1949, denying the application of F P W P for a certificate
of citizenship, be and it is hereby withdrawn.
It is further ordered, That the application of F P W P for a
certificate of citizenship be granted. Citizenship was acquired
September 13, 1877.
"Neutral alien,' claiming exemption from service in United States armed forces -- Ineligibility to United States citizenship -- Section 3(a) of the Selective Training and Service Act of 1940, as amended -- Whether alien is "residing' in the United States within meaning of Section 3(a) (supra), and pertinent regulations, so as to be liable for such service. (See 4, I. & N. Dec. 5.)
A "neutral alien', who last entered the United States as a seaman on January 1, 1943, and who requested relief from military service here by filing Form D.S.S. 301 on February 6, 1943, was not "residing' in the United States on February 6, 1943 nor had he incurred "such liability' for military service here, within the meaning of Sec. 3(a) of the Selective Training and Service Act of 1940, as amended (and pertinent regulations), because the three months' period of grace (following his entry after May 16, 1942 i.e. on January 1, 1943) had not expired on February 6, 1943, when he filed the above Form D.S.S. 301. (The Supreme Court decision in McGrath v. Kristensen, 340 U.S. 162, is discussed.)
CHARGE:
Warrant: Act of 1924 -- Remained longer -- Seaman.
Discussion: A motion filed on February 10, 1950, under section
90.11(b), title 8, C.F.R., urged a reopening of the proceedings for the
purpose of modifying our order of November 4, 1949, so as to grant the
respondent the discretionary relief provided in section 19(c)(2) of the
Immigration Act of 1917, as amended, or, in the alternative, deferring
execution of the order pending decision in the case of Kristensen v.
McGrath, 179 F.(2d) 796 (C.A.D.C. December 19, 1949), a case then before
the Supreme Court of the United States. This motion was considered by
the Board on May 19, 1950. We deferred action in the case pending final
decision in the Kristensen case (supra). Counsel was granted oral
argument on the motion on February 1, 1951. The case is now before us
for consideration of counsel's motion of February 10, 1950, a decision
in the Kristensen case having been handed down by the United States
Supreme Court on December 11, 1950 (340 U.S. 162, 95 L. Ed. 165, 71
S.Ct. 224).
The respondent is a native and citizen of Finland, now approximately
43 years of age, male, married, of the white race, who has been found
subject to deportation on the charge stated above. He has filed an
application for suspension of deportation, alleging economic detriment
to his native-born citizen wife and dependent citizen child. The record
establishes that the respondent last entered the United States as a
seaman on January 1, 1943. It also establishes that he executed Form
DSS 301 on February 6, 1943, requesting relief from military service as
an alien of a neutral country. It is here noted that Finland was a
neutral country as of February 6, 1943, and so remained until she became
a cobelligerent on April 5, 1945. The Assistant Commissioner denied the
respondent's application for suspension of deportation on March 17,
1949, on the ground that he is ineligible for citizenship, having filed
an application for relief from military service under section 3(a) of
the Selective Training and Service Act of 1940, as amended. He was
granted the privilege of voluntary departure.
Discussion as to Respondent's Motion: Our previous refusals to grant
discretionary relief under section 19(c)(2) of the Immigration Act of
1917, as amended, were predicated upon a finding that the respondent
executed Form DSS 301 on February 6, 1943, in which he requested relief
from military service as an alien of a neutral country, to wit:
Finland, thus making him ineligible for citizenship on a ground other
than race, within sections 13(c) and 28(c) of the Immigration Act of
1924, as amended. (Matter of J , A-4558054 BIA 1946, A.G. 1947) (2, I.
& N. Dec. 545)). Accordingly, the only issue now before us is whether
the Supreme Court's ruling in the Kristensen case (supra), sets aside
our finding referred to above.
The Kristensen case concerns an alien, a citizen of Denmark, who
entered the United States as a temporary visitor in August of 1939. He
was prevented from returning to his native land within the 60 days
allowed him at the time of his entry because of the outbreak of World
War II. He secured 2 extensions of stay, each for 6 months. A warrant
of deportation issued against him on May 15, 1941, but was stayed
because hostilities made deportation impossible. As an alien subject to
deportation, he filed DSS Form 301 on or about March 30, 1942, which
resulted in his exemption from military service under the Selective
Training and Service Act of 1940, as amended in 1941 (50 U.S.C.A.,
appendix sec. 301 et seq.). He married an American citizen in 1944 and
in 1946 applied for suspension of deportation under section 19(c)(2) of
the Immigration Act of 1917, as amended. This Board denied the
application solely because the exemption from military service barred
his naturalization. Matter of K , A-3781880 (June 27, 1947).
It is apparent from the foregoing that the facts of the case at bar
parallel those of the Kristensen case. The question before the Supreme
Court, insofar as eligibility for naturalization is concerned, was
whether Kristensen was a "male person residing in the United States'
within the meaning of section 3(a) of the Selective Training and Service
Act of 1940, /1/ at the time of his application for relief from military
service on March 30, 1942. Since the substantive law did not define who
was a "male person residing in the United States' liable for training
and service after December 20, 1941, it was necessary for the Supreme
Court to interpret the regulations /2/ promulgated pursuant to sections
310(a) and (b) of the Selective Training and Service Act of 1940, as
amended.
The Supreme Court found that under the regulations set forth in
footnote 2, Kristensen was not residing in the United States at the time
of his application for relief (March 30, 1942), and therefore could not
have had such liability for service. Since there was no liability for
service, the disqualification for citizenship under the penalty clause
of section 3(a) could not arise because the applicant had not made the
application referred to in the statute as such application. As there
was no liability for service when he filed Form DSS 301, his act in
applying for relief from a nonexistent duty did not create a bar against
naturalization.
The only question remaining for us to determine is whether an
amendment to section 611.13, title 32 C.F.R. (effective prior to the
time the respondent herein filed Form DSS 301 on February 6, 1943),
materially changed the definition of "residence' as that term is
interpreted by the Supreme Court in the Kristensen case. This
amendment, filed September 14, 1942 (7 F.R., pt. 9, p. 7222) deletes
paragraph (b), but the substance of this paragraph is added to paragraph
(a) by the addition of subparagraphs 7, 8, and 9 /3/ and a proviso that
the nondeclarant alien have "in his personal possession an official
document issued pursuant to authorization of or described by the
Director of Selective Service which identifies him as a person not
required to present himself for and submit to registration.'
32 C.F.R. 611.3 and 611.21, when read in conjunction with 32 C.F.R.
611.13, as amended (supra), specifically excepts a nondeclarant alien
who enters the United States lawfully from registering or filing an
application for determination of residence (Form 302) until 3 months
after the date of his entry if he entered subsequent to May 16, 1942.
Since the respondent lawfully entered on January 1, 1943, and was a
nondeclarant alien, there was no obligation on his part under the
Selective Service regulations to register or file for a determination of
residence until April 1, 1943.
Accordingly, we find on the basis of the regulations in effect at the
time of the respondent's entry on January 1, 1943, that when the
respondent filed his application for relief from military service on
February 6, 1943, he was not residing in the United States nor had he
incurred such liability for military service within the meaning of
section 3(d) of the Selective Training and Service Act of 1940, as
amended, because the 3 months' period of grace had not expired. By the
terms of the statute, his action in applying for relief from a
nonexistent duty did not create a bar against naturalization as that bar
does not come into existence until an alien resident liable for training
and service asks to be relieved, (McGrath v. Kristensen (supra)). That
portion of respondent's motion to reconsider his application for
discretionary relief under section 19(c)(2) of the Immigration Act of
1917 is hereby granted.
Discussion as to Deportability: The respondent, a native and citizen
of Finland, last entered the United States at the port of Mobile, Ala.,
on January 1, 1943, as a member of the crew of the S.S. San Gaspar. He
was admitted as a seaman for a period not to exceed 30 days. He
testified that at the time of his arrival he intended to reship as a
seaman. He has remained continuously in the United States until the
present time. He has never been admitted to the United States for
permanent residence. The charge stated in the warrant of arrest is
sustained.
Discussion as to Eligibility for Suspension of Deportation: The
respondent has filed formal application for the suspension of his
deportation under the provisions of section 19(c)(2) of the Immigration
Act of 1917, as amended. He has resided continuously in the United
States since his arrival on January 1, 1943. The respondent married a
native-born citizen of the United States on August 14, 1943. He is the
father of a minor dependent American citizen child, the issue of his
marriage. His citizen wife and minor citizen child are entirely
dependent upon him for support. Since his arrival, the respondent has
been steadily employed by the same employer. At the time of his
application he was earning $60 per week. He and hiw wife have cash in
the amount of $4,000, furniture and clothing valued at $1,000, one bond
in the sum of $50, and he owns his home valued at $5,000. His
deportation would result in serious economic detriment to his American
citizen wife and American citizen minor child.
The respondent has never been arrested for a crime. He has submitted
numerous affidavits attesting to his good moral character, his loyalty
to the United States, his industry, honesty, devotion to his citizen
wife and child, and stating that he did not know the contents of the
Selective Service Form 301 at the time he signed it in February 1943.
The respondent is not subject to deportation under any of the categories
mentioned in section 19(d) of the Immigration Act of 1917. We find on
the record before us that the respondent has been of good moral
character for the preceding 5 years.
Suspension of Deportation -- Findings of Fact: Upon the basis of all
the evidence presented, it is found:
(1) That the alien is not ineligible for naturalization in the
United States.
(2) That the alien has been of good moral character for the
preceding 5 years.
(3) That the alien has resided continuously in the United
States since January 1, 1943, and his deportation would result in
serious economic detriment to his wife and minor child, nativeborn
citizens of the United States.
(4) That after full inquiry no facts have been developed which
would indicate that the alien is deportable under any of the
provisions of law specified in section 19(d) of the Immigration
Act of 1917, as amended.
Suspension of Deportation -- Conclusion of Law: Upon the basis of
the foregoing findings of fact, it is concluded:
(1) That the alien is eligible for suspension of deportation
under the provisions of section 19(c)(2) of the Immigration Act of
1917, as amended.
Order: It is ordered that deportation of the alien be suspended
under the provisions of section 19(c)(2) of the Immigration Act of 1917,
as amended.
It is further ordered that the order entered by the Assistant
Commissioner on March 17, 1949, be and the same is hereby withdrawn.
It is further ordered that if during the session of the Congress at
which this case is reported, or prior to the close of the session of the
Congress next following the session at which this case is reported, the
Congress passes a concurrent resolution, stating in substance that it
favors the suspension of such deportation, the proceedings be canceled
upon the payment of the required fee and that the alien be charged to
the quota for Finland.
(1) Sec. 3(a) of the Selective Training and Service Act of 1940, 54
Stat. 885, ch. 720, as amended (December 20, 1941) 55 Stat. 844, 845,
ch. 602, 50 U.S.C.A.Appx. Section 303(a), FCA title 50, Appx. Section
303(a), provides in part:
"Except as otherwise provided in this act, 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 of the United States: Provided, 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 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.'
(2) 32 C.F.R. 611.13. The regulations applicable here, effective
February 7, 1942 (7 F.R. 855), are as follows:
"When a nondeclarant alien is not residing in the United
States. (a) A male alien who is not in or hereafter enters the
United States who has not declared his intention to become a
citizen of the United States is not "a male person residing in the
United States' within the meaning of sec. 2 or 3 of the Selective
Training and Service Act of 1940, as amended:
"(1) (Not applicable.)
"(2) (Not applicable.)
"(3) (Not applicable.)
"(4) (Not applicable.)
"(5) (Not applicable.)
"(6) If he has entered or hereafter enters the United States in
a manner prescribed by its laws and does not remain in the United
States after May 16, 1942, or for more than 3 months following the
date of his entry, whichever is the later.
"(b) When a male alien who has not declared his intention to
become a citizen of the United States has entered or hereafter
enters the United States in a manner prescribed by its laws and
remains in the United States after May 16, 1942, or for more than
3 months following the date of his entry, whichever is the later,
he is "a male person residing in the United States' within the
meaning of secs. 2 and 3 of the Selective Training and Service Act
of 1940, as amended, unless he has filed an Alien's Application
for Determination of Residence (Form 302) in the manner provided
in Section 611.21 and such application is either (1) pending or
(2) has resulted in a determination that he is not "a male person
residing in the United States' within the meaning of secs. 2 or 3
of the Selective Training and Service Act of 1940, as amended, in
either of which events he shall not be considered as "a male
person residing in the United States' within the meaning of secs.
2 or 3 of the Selective Training and Service Act of 1940, as
amended, during the period when such application is pending or
during the period covered by the Alien's Certificate of
Nonresidence (Form 303) issued to him as a result of the
determination that he is not "a male person residing in the United
States' within the meaning of secs. 2 or 3 of the Selective
Training and Service Act of 1940, as amended (54 Stat. 885; 50
U.S.C., Sup. 301 318, inclusive; E.O. No. 8545, 5 F.R. 3779).'
(3) 32 C.F.R. 611.13. Subparagraphs (7), (8), and (9) provide as
follows:
"(7) He has, within the time prescribed and in the manner provided in
Section 611.21, filed with the local board with which he is registered,
or if he is not registered, with the local board having jurisdiction
over the area in which he is located, an Alien's Application for
Determination of Residence (Form 302) together with an Alien's Personal
History and Statement (Form 304) and such application is either pending
or has resulted in the issuance by the local board of an Alien's
Certificate of Nonresidence (Form 303) which has not expired; or
"(8) He is an individual designated by the Director of Selective
Service as not required to present himself for and submit to
registration; or
"(9) He is within a group of individuals described by the Director of
Selective Service as not required to present themselves for and submit
to registration.' (Amendments effective September 14, 1942, 7 F. R. pt.
9, p. 7222.)
Marriage (foreign) -- Effect of annulment by United States District Court for District of Columbia (1948) -- Whether immigration status at time of entry (1947) affected, if marriage not annulled ab initio.
A marriage abroad in 1946 rendered void only from the date of decree of annulment in 1948, by the United States District Court for the District of Columbia, did not affect the nonquota immigrant status of the alien wife at the time of her entry here in 1947, as the wife of a United States citizen member of the armed forces of the United States during World War II.
CHARGE:
Warrant: Act of 1924 -- Quota immigrant not in possession of
unexpired quota immigration visa because entry as a nonquota immigrant
under provisions of the Act of December 28, 1945, was obtained through
fraud.
Discussion: The record relates to a native and citizen of France,
who last entered the United States at the port of New York, N.Y., on
February 9, 1947, as a passenger on the S. S. Admiral Hugh Rodman. The
respondent was admitted for permanent residence, quota exempt, under
Public Law 271 approved December 28, 1945. She was married to a
native-born United States citizen, a member of the Armed Forces of the
United States during World War II, at Wiesbaden, Germany, on December
21, 1946. Therefore, at the time of her entry she was admitted as the
wife of such United States citizen member of the United States Armed
Forces, under the provisions of the above act, without being charged to
any quota.
On October 21, 1948, the respondent was granted a decree, voiding the
above marriage, by the United States District Court for the District of
Columbia which reads in part:
Adjudged and decreed that the marriage contract heretofore
entered into between the plaintiff, S A O R and the defendant, S M
R be and the same is hereby declared void on the ground of the
matrimonial incapacity of the said S M R at the time of said
marriage and such incapacity is continued, * * *,'. /1/
A decree annulling a marriage in the District of Columbia is final
and conclusive and not subject to collateral impeachment, Moran v.
Moran, 160 F.(2d) 925. The jurisdiction of the marriage res depends on
the residence or domicile of at least one party, and where it has
jurisdiction of the parties, as in the present case, it is immaterial
where the marriage was solemnized, Hitchins v. Hitchins, D.C., 47 F.
Supp. 73. In the present case the jurisdiction to hear and determine
the suit for avoidance of the marriage is regulated by statute.
The warrant charge can be sustained only if it is determined that the
marriage was void ab initio. Under section 30-103 (14:3) of the Code of
the District of Columbia, any marriage "either of the parties to which
shall be incapable, from physical causes, of entering into the marriage
state' shall be void from the time when its nullity shall be declared by
decree. In the instant case, the marriage was annulled by reason of the
husband's physical inability referred to by the court decree as
"matrimonial incapacity' which is the language set forth in section
16-403 of the District of Columbia Code set out in pertinent part in
footnote 1. By the words of the code above referred to, that is "shall
be void from the time when their nullity shall be declared by decree,'
the annullment in this case is not an excision of the marriage or
annulment ab initio. /2/
Accordingly, the charge in the warrant of arrest will not be
sustained. Since there appears to be no other ground of deportability
indicated from this record, the proceedings will be terminated.
Order: It is ordered that the proceedings under the warrant of
arrest issued November 19, 1949, and served January 20, 1950, will be
terminated.
(1) The applicable part of the statute whereunder this decree was
issued is as follows: Section 16-403, the District of Columbia Code:
"Provided further, That marriage contracts may be declared void in
the following cases:
"First. Where such marriage was contracted while either of the
parties thereto had a former wife or husband living, unless the former
marriage had been lawfully dissolved.
"Second. Where such marriage was contracted during the lunacy of
either party (unless there has been voluntary cohabitation after the
lunacy) or was procured by fraud or coercion.
"Third. Where either party was matrimonially incapacitated at the
time of marriage and has continued so.
"Fourth. Where either of the parties had not arrived at the age of
legal consent to the contract of marriage (unless there has been
voluntary cohabitation after coming to legal age), but in such cases
only at the suit of the party not capable of consenting (March 3, 1901,
31 Stat. 1345, ch. 854, Section 966; August 7, 1935, 49 Stat. 539, ch.
453, Section 1).'
The District of Columbia Code section 30-103 relates to marriages in
the District which are illegal and void from the time of their nullity
by decree and reads as follows:
"Section 30-103 (14:3). Marriages void from date of decree -- Age of
Consent. -- The following marriages in said District shall be illegal,
and shall be void from the time when their nullity shall be declared by
decree, namely:
"First. The marriage of an idiot or of a person adjudged to be a
lunatic.
"Second. Any marriage the consent to which of either party has been
procured by force or fraud.
"Third. Any marriage either of the parties to which shall be
incapable, from physical causes, of entering into the married state.
"Fourth. When either of the parties is under the age of consent,
which is hereby declared to be eighteen years of age for males and
sixteen years of age for females (March 3, 1901, 31 Stat. 1391, ch.
854, Section 1285; June 30, 1902, 32 Stat. 543, ch. 1329; August 12,
1937, 50 Stat. 626, ch. 596, Section 1).'
NOTE:
The District of Columbia Code section 30-101 under chapter 1,
Prohibitions and Marriages void ab initio, reads as follows:
"The following marriages are prohibited in the District of Columbia
and shall be absolutely void ab initio, without being so decreed, and
their nullity may be shown in any collateral proceedings, namely:
"First. The marriage of a man with his grandmother, grandfather's
wife, wife's grandmother, father's sister, mother's sister, mother,
stepmother, wife's mother, daughter, wife's daughter, son's wife,
sister, son's daughter, daughter's daughter, son's son's wife,
daughter's son's wife, wife's son's daughter, wife's daughter's
daughter, brother's daughter, sister's daughter.
"Second. The marriage of a woman with her grandfather, grandmother's
husband, husband's grandfather, father's brother, mother's brother,
father, step-father, husband's father, son, husband's son, daughter's
husband, brother's son's son, daughter's son, son's daughter's husband,
daughter's daughter's husband, husband's son's son, husband's daughter's
son, brother's son, sister's son.
"Third. The marriage of any persons either of whom has been
previously married and whose previous marriage has not been terminated
by death or a decree of divorce (March 3, 1901, 31 Stat. 1391, ch. 854,
Section 1283).' Yet, these "prohibited' marriages "void' without being
so decreed, may be annulled.
The District of Columbia Code, section 30-102, Marriage may be
decreed to be void, reads as follows:
"Any of such marriages may also be declared to have been null and
void by judicial decree (March 3, 1901, 31 Stat. 1391, ch. 854, Section
1284).'
(2) A like result was reached as to the consequences of an annullment
in New York State in Matter of B , A-3170648, B.I.A. 1947, 3, I. & N.
Dec. 102, where the charge in the warrant of arrest referred to "visa
procured by fraud,' act of 1924, and "marriage annulled ab initio,' act
of 1937; and Matter of M , A-3697183, B.I.A. 1947 3, I. & N. Dec. 25,
where the charge in the warrant of arrest referred to "not nonquota as
specified in visa,' act of 1924; see Op. of Sol. of Labor, November 24,
1930, 8/240.
Subversive, proscribed organization, member or affiliate of -- Expulsion ground -- Act of 1918, as amended -- "Voluntary' membership or affiliation -- Public Law 14, March 28, 1951 -- Term "voluntary' construed -- Evidence.
In order for membership in any organization to be considered voluntary, it is essential that the member be cognizant of the kind of organization he has joined. The facts in this case support the stipulation in this case to the effect that at the time of joining in 1933 during a strike (if he actually joined for the 7-week period involved, there being no receipt of a membership card, dues book, or pertinent literature, etc.) the respondent had no knowledge that the Workers Party (United States) was communistic or was affiliated with the Communist Party (of the United States of America), and that as soon as he discovered that it was such an organization he ceased his relationship with such Workers Party. The alien is no longer deportable under the Internal Security Act of 1950 or the 1918 act, as amended, on the basis of the evidence in this case (act of March 28, 1951), Public Law 14 (S. 728, H.R. 2239), and instructions governing its application).
CHARGES:
Warrant: Act of 1918 -- After entry was a member of the following class set forth in section 1 of said act: An alien who is a member of an organization, association, society, and group that advises, advocates, and teaches the overthrow, by force and violence, of the Government of the United States.
Act of 1918 -- After entry was a member of the following class set
forth in section 1 of said act: An alien who is a member of an
organization, association, society, and group that writes, circulates,
distributes, prints, publishes, and displays any written and printed
matter advising, advocating and teaching the overthrow, by force and
violence, of the Government of the United States.
Discussion: The respondent is a native and was a citizen of Sweden,
who entered the United States without inspection on March 22, 1924. He
has lived in the United States at all times since his entry, is married
to a United States citizen, and is the father of two citizen children.
In 1940 respondent desired to acquire United States citizenship.
During an investigation he stated that he had been a member of the
Communist Party over a period of several weeks in 1933. That statement
gave rise to the present proceedings.
The record contains a stipulation between respondent, his attorney,
and the examining officer, representing the Immigration and
Naturalization Service. This stipulation reads in part as follows:
(9) That the respondent joined an organization known as the
Workers Party on or about March 1933 and was a member thereof for
approximately seven weeks until about May 1933.
(10) That at the time of the joining of the said Workers Party
the respondent had no knowledge that said organization was
Communistic or was affiliated with or identified with the
Communist Party.
(11) That upon discovery of such facts as led respondent to
believe that said organization was affiliated with the Communist
Party, respondent immediately ceased his relationship with said
Workers Party.
(12) That respondent never attended any meeting of the
organization known as the Workers Party nor ever took part in any
of its activities.
(13) That the Workers Party herein referred to as having been
joined by the respondent, is admitted to have been the Communist
Party.
(14) That the Communist Party, during the period from about
March 1933 to about May 1933, advised, advocated, and taught the
overthrow by force and violence of the Government of the United
States.
(15) That the Communist Party, during the period from about
March 1933 to about May 1933, was an organization, association,
society, and group that wrote, circulated, distributed, printed,
published, and displayed written and printed matter advising,
advocating, and teaching the overthrow by force and violence of
the Government of the United States.
Counsel informed this Board during oral argument that the reason he
signed the above stipulation was because he was informed by
representatives of the Immigration and Naturalization Service that if he
failed to stipulate it would be necessary for the Government to
introduce evidence designed to prove that the Workers Party and the
Communist Party were one, and that the Communist Party in 1933 was an
organization which advocated the overthrow of the Government by force
and violance. Counsel claims that in order to shorten the hearing, and
because the Government informed him that it could prove these things,
and because he was informed that his client would not be deported,
counsel and respondent cooperated with the Service by signing the
stipulation.
The hearing examiner in his recommended decision said:
To break up respondent's home and deport him because of an
impulsive action that apparently consisted of no more than paying
out the sum of 60 cents, and possibly signing his name to a
membership card (although even this latter step is not shown in
the record), 17 years ago, would appear to serve no useful purpose
particularly at this late date, and respondent's family would be
the chief sufferers in the event such penalty were imposed upon
him.
Nevertheless, despite the many favorable factors to his credit,
the fact remains that respondent is subject to deportation on
grounds specified in section 19(d) of the Immigration Act of 1917,
as amended, and the undersigned is precluded by regulation from
making any recommendation respecting possible relief in this case.
Following the hearing and this recommendation the Congress of the
United States enacted the Internal Security Act of 1950, effective
September 23, 1950, which eliminated the authority we had prior to that
time to grant 7th proviso relief in this type of case. On March 28,
1951, Public Law 14 (S. 728) amending the act of 1918, as amended, was
approved by the President. Section 1 of the new act provides: "That
the Attorney General is hereby authorized and directed to provide by
regulations that the terms "members of' and "affiliated with' where used
in the act of October 16, 1918, as amended, shall include only
membership or affiliation which is or was voluntary.'
Instructions governing the application of the amended act were
prepared jointly by the Immigration and Naturalization Service, the
Department of State and the Displaced Persons Commission. These
instructions were issued on March 28, 1951. In part they provide as
follows:
4. The term "voluntary' when used in relation to membership in,
or affiliation with, a proscribed or organization shall be
construed to mean membership or affiliation which is or was
knowlingly created by the alien's act of joining or affiliating,
upon his own volition, with such proscribed party or organization.
In order for membership in any organization to be considered
voluntary, it is essential that the member be cognizant of the kind of
organization he has joined. The stipulation in the present case
provides that at the time of joining the party respondent had no
knowledge that the Workers Party was communistic or was affiliated with
the Communist Party, and that as soon as he discovered that it was such
an organization he ceased his relationship with the Workers Party. The
facts in this case support the stipulation.
There is no evidence in the record, aside from respondent's own
statements, that he was in fact a member of the Communist Party. His
membership came about in this way: In 1933 there was a pay cut of 28 to
25 cents per hour in the furniture factory where respondent was working,
resulting in a spontaneous strike. Respondent and others testified that
there were several out-of-town organizers who attempted to enter the
strike situation and organize unions. The respondent testified that he
met a person named S P who told him that his (P 's) organization would
help the strikers with their picketing and provide funds and food.
Respondent testified that he paid S P 50 cents dues and later another 10
cents. He does not know who S P was, where he came from, or where he
went. After the strike was over the organizers departed. He believes S
P to be dead. There were three meetings during the strike. The
Assistant Commissioner's opinion states that these meetings were
meetings of the Workers Party. Respondent and N B , who appeared as a
witness for respondent, both testified that these meetings were not
meetings of the Communist or Workers Party. They were organization
meetings, meetings which were attempts to organize a union and to
channel the strike activities into constructive outlets. An independent
union did come out of the strike, and is still in existence in that
plant. So far as respondent and his witness know, there is no active
Communist or Workers Party in Jamestown, N.Y. Respondent has never
received any membership card, dues book, or Communist literature. There
is nothing in the record to show that S P was actually an agent for the
Workers or Communist Party, or that the party ever received any of the
60 cents paid by respondent in the form of dues. We doubt that
respondent has been at any time a member of or affiliated with a
proscribed organization.
Respondent is no longer deportable under the Internal Security Act or
the 1918 act as amended.
Order: It is ordered that the warrant and order of deportation be
withdrawn and the proceedings terminated.
Warrant of deportation -- Contention such warrant became "functus officio' because not executed within a reasonable time.
A warrant of arrest was issued on May 28, 1934, deportation was ordered on October 9, 1934, and a warrant of deportation was entered on November 26, 1934; passport facilities were not available and on April 3, 1936, it was directed that further action be deferred. The warrant of deportation in this case is not functus officio.
CHARGE:
Warrant: Act of 1918 -- Member of proscribed organization.
Act of 1918 -- Advocates overthrow by force and violence of the
Government of the United States.
Discussion: This matter is before us by reason of a motion filed by
counsel requesting that the warrant of deportation be vacated and the
deportation proceeding dismissed.
The subject of this proceeding testified that he was born in
Rostovon-Don, on January 18, 1897, and that he is a citizen of the
country of his nativity (now Union of Soviet Socialist Republics). The
petitioner stated he first arrived in the United States at New York
during the month of December 1913 on the S. S. Cameronia or Calendonia.
He last arrived at Tacoma, Wash. on September 14, 1919, as a member of
the crew of the S.S. Lake Sanford. Following his arrival in 1919 he was
excluded by a Board of Special Inquiry as a person likely to become a
public charge. An order of deportation was entered on April 27, 1920,
and a warrant of deportation was issued on May 28, 1920. On August 12,
1920, the warrant of arrest was canceled by the Assistant Secretary of
Labor. The record reveals that a warrant of arrest was issued on
November 12, 1919, on the ground that the alien advocated the unlawful
destruction of property; that he taught the assassination of public
officials; and that he was a person likely to become a public charge.
Another warrant of arrest was issued on May 28, 1934, on the ground
that the alien was a member of or affiliated with an organization,
association, society, or group, that believes in, advises, advocates, or
teaches the overthrow by force or violence of the Government of the
United States; and that he believes in, advises, advocates, or teaches
the overthrow by force or violence of the Government of the United
States.
On the hearing under the warrant of arrest the alien testified that
he became a member of the Communist Party about 1931 or 1932 and that he
was a member of the said organization at the time of the hearing. He
further testified that he believed in the principles and policies of the
organization. He further stated that he was arrested in 1918 or 1919
for distributing literature pertaining to the International Workers
Order.
On October 9, 1934, an order of deportation to the Union of Soviet
Socialist Republics was entered. The charges in the warrant of arrest
having been sustained, warrant of deportation directing the alien's
return to the Union of Soviet Socialist Republics was entered on
November 26, 1934. Passport facilities were not available and on April
3, 1939, it was directed that further action be deferred.
The principal contention of counsel in connection with the present
motion is that because of the lapse of time since entry of the order of
deportation that the said order has become functus officio and of no
force, validity or effect.
It is pointed out that the alien applied for naturalization in New
York State in 1936. It appears that he served in the United States Army
in 1942 and on August 22, 1944, he again applied for naturalization.
We have carefully reviewed the points and authorities cited by
counsel and at best while counsel contends that the warrant of
deportation was not executed within a reasonable time and therefore
became functus officio, the cases cited seem to indicate principally
that the alien cannot be held in custody for an unlawful period of time.
The Internal Security Act of 1950 (Public Law 851, ch. 1024) section
23(a) amending section 20 of the act of February 5, 1917, provides:
* * * Pending final determination of the deportability of any
alien taken into custody under warrant of the Attorney General
such alien may, in the discretion of the Attorney General (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; or (3) be released on conditional parole. * * *
In the matter of In re Hanoff, 39 F.Supp. 169, the facts are somewhat
similar. The court's attention was directed to the fact that the
petitioner had been available for deportation for a period in excess of
ten years. It was urged that the old warrant had become functus officio
because it was not executed within a reasonable time. The alien was
taken into custody but theretofore he had not been restrained of his
liberty. There was nothing in the case to show that the delay in
deporting the petitioner worked a disadvantage to him. When he was
taken into custody there was a reason to believe that deportation could
be effected. In this case the court said:
Under the circumstances I think that petitioner is not entitled
to an immediate discharge. A broad discretion is allowed the
Attorney General to find ways or means to execute the original
deportation warrant. "The utmost the courts can or will do is to
discharge the (petitioner) from further imprisonment if the
government fails to execute the order of deportation within a
reasonable time.'
A later case is that of the U.S. ex rel. Doukas v. Wiley et al., 160
F.(2d) 92 (C.A. 7, February 7, 1947). In that case the court said:
What constitutes a reasonable time for detention for
deportation depends upon the facts. Moraitis v. Delany, D.C. 46
F.Supp. 425; Consola v. Karnuth, D.C. 63 F.Supp. 727; and Seif
v. Nagle, 9 Cir., 14 F.(2d) 416. In our case appellant was
released on bond and from 1922 to 1931, at his request execution
of the warrant was delayed. Thereafter he filed a petition for
writ of habeas corpus and when his case was affirmed (56 F.(2d)
518) he breached his bond. From 1932 to 1939 it was impossible to
effect his deportation because he failed to advise the Immigration
Service of his whereabouts. In 1939, after he had been
apprehended, he was again released on bond, but because of the
war, deportation was not practical. In this state of the record
we are of the opinion that the warrant is not without force; on
the contrary, it is valid.
After careful consideration of the present motion, it is our
conclusion that the warrant of deportation in this case is not functus
officio and the motion must therefore be denied.
Order: It is ordered that the motion be and the same is hereby
denied.
Subversive, membership in a subsidiary or affiliate of the Communist Party -- Exclusion ground, service in the Soviet Army -- Act of October 16, 1918, as amended by section 22 of the Internal Security Act of 1950 -- Public Law 14 (March 28, 1951).
Service in the armed forces of any country (Russia in this case) whether voluntary or not, is not to be regarded, of itself, as membership or affiliation with, any proscribed party or organization, and does not, of itself, constitute a ground for exclusion. (Public Law 14, act of March 28, 1951 (H.R. 2339, S. 728) and instructions governing its application).
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of October 16, 1918, as amended -- Service in the armed forces of
a totalitarian government.
Discussion: This is an appeal from an order entered by the Acting
Assistant Commissioner on March 15, 1951, affirming the appellant's
exclusion on the above-stated ground at the port of New York by a board
of special inquiry. Counsel in her exceptions to the order contends
that the appellant's service in the armed forces of a totalitarian
government was compulsory, leaving him no alternative with regard to
membership in a branch of a totalitarian party as contemplated under the
Internal Security Act of 1950.
The appellant, a native and citizen of Russia, male, 26 years of age,
unmarried, last arrived in the United States ex-U.S.N.S. General Harry
Taylor at the port of New York on December 28, 1950. He sought to enter
for permanent residence and presented a nonpreference-quota immigration
visa issued under Public Law 774 as a displaced person. He testified
that he was drafted into the Army of the U.S.S.R. and saw service
therein from 1941 until his capture by the Germans during February of
1943. Under a ruling of the Attorney General that service in the Soviet
army, both present and former, shall be regarded as membership in a
subsidiary or affiliate of the Communist Party, the appellant's
exclusion by the board of special inquiry was mandatory under section
1(2)(C) of the act of October 16, 1918, as amended by section 22 of the
Internal Security Act of 1950 (files 56307/191, 56305/252).
The act of October 16, 1918, as amended by the Internal Security Act
of 1950, now excepts from its provisions an alien whose membership in or
affiliation with a branch of a totalitarian party of a foreign state was
compulsory (H.R. 2339, 82d Cong., approved March 28, 1951).
Instructions which have been promulgated to govern the application of
H.R. 2339 (supra), state in part:
Service, whether voluntary or not, in the armed forces of any
country shall not be regarded, of itself, as membership or
affiliation with, any proscribed party or organization, and shall
not, of itself, constitute a ground for exclusion.
Accordingly, we find the appellant admissible as a nonquota immigrant
under section 6(a)(3) of the Immigration Act of 1924, as amended, and
under section 2(c) of Public Law 774, as amended, as a displaced person.
Order: It is directed that the appeal be and the same is hereby
sustained, the appellant to be admitted in accordance with the foregoing
opinion if otherwise admissible.
Editor's note. -- Similar conclusion by B.I.A. in unreported Matter
of A , A-7283185, April 13, 1951, which involved Service in the Soviet
Army from October 1918 until his capture at Stalingrad during July or
August 1942 by an alien applying for admission as a displaced person.
Subversive, proscribed organization, member of organization affiliated with -- Act of 1918, as amended -- Exclusion ground -- "Voluntary' membership or affiliation -- Public Law 14 (March 28, 1951) -- Term "voluntary' examined -- Evidence.
The uncontradicted testimony of the male applicant that he was required to join the Profesoruse of the Workers of Higher Skills, a trade union in Russia, under the circumstances indicated, is deemed sufficient, in the absence of evidence to the contrary, to make a finding that his membership in such trade union was involuntary and his past membership therein is not a basis for exclusion in view of the provisions of the act of March 28, 1951 (Public Law 14). (See Int. Dec. #253, 4, I. & N. Dec. 341.)
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Male applicant: Act of 1918, as amended -- Member of an organization which was affiliated with the Communist Party of Russia.
Female applicant: Act of 1948, as amended -- Not an eligible
displaced person.
Discussion: This is an appeal from the decision of the Assistant
Commissioner, Adjudications Division, finding the applicants
inadmissible to the United States on the grounds above stated.
The applicants, husband and wife, are seeking to enter the United
States as Displaced Persons. The wife has been found inadmissible only
because her husband is inadmissible.
The applicants are Russians by birth, and lived in their native
country until 1935 when, because of their antagonism to communism, they
fled to Poland. There they lived until 1945 when they were deported to
Germany. Both are now living in a displaced persons camp in Germany.
The male applicant is a university graduate (1914) and specialized in
forestry and botany, and in particular peat bog science. He testified
that after graduating from the university in 1914, he continued his
scientific work, principally in the peat bog field at the university
from which he graduated as well as other institutions. While so
employed, and beginning about 1923 or 1924, he was required to join a
trade union, or Profesoruse, known as the Profesoruse of the Workers of
Higher Skills. Dues for this organization were deducted from the salary
of the members.
It is because of his membership in this organization that the male
applicant has been found inadmissible to the United States by the
Immigration and Naturalization Service under section 1(2)(C)(v) of the
act of October 16, 1918, as amended by section 22 of the Internal
Security Act of 1950, as a member of an organization which is an
affiliate of the Communist Party of Russia.
This case is directly affected by an amendment to the Internal
Security Act, approved March 28, 1951. Under this amendment the terms
"members of' and "affiliated with,' as used in the act of October 16,
1918, as amended, shall include only membership or affiliation which is
or was voluntary. According to the uncontradicted testimony of the male
applicant, he was required to join the Profesoruse of the Workers of
Higher Skills. There is no evidence to the contrary. We feel his
testimony in this particular should be accepted without corroboration,
since the practice in totalitarian countries of requiring workers to
join organizations of this character is well known. We, therefore,
accept the testimony of the male applicant that his membership in the
Profesoruse of the Workers of Higher Skills was involuntary and, hence,
under the act of March 28, 1951, his past membership in this
organization is not a basis for exclusion.
The wife has been found inadmissible solely because her husband was
considered inadmissible.
Order: It is ordered that the appeal be sustained, and the
applicants be found admissible to the United States upon securing valid
replacement visas.
Editor's note. -- On April 27, 1951, the B.I.A. entered a decision in
the Matter of N , A-7927146, unreported, citing the above cases and
finding the alien not inadmissible as a member of an organization
affiliated with the Communist Party of Russia, to wit: "The Trade Union
of Workers of Education' in Russia. The alien was a teacher of
mathematics and physics in the U.S.S.R. and admitted membership from
1925 to 1941 in the above trade union. Membership in this trade union
was found to be compulsory for all teachers and the entire personnel of
the school. Dues were paid by compulsory deductions from salaries. The
alien discontinued teaching in September 1941 because of induction into
the Soviet Army (wherein he served as a private until captured by the
Germans in October 1941).
Citizenship revoked by court -- Section 704 of the Nationality Act of 1940, as amended -- Deportability of alien on basis of a proceeding instituted before naturalization.
A warrant of arrest was issued in 1941 against an alien seaman for having remained longer than permitted after his entry as seaman in 1940, and he was ordered deported in 1941. He was naturalized in 1945 while in the Armed Forces of the United States, but his citizenship was revoked in 1948 under section 704 (supra). Proceedings under the above warrant were reopened in 1949. The alien cannot be deported on a proceeding instituted before he was naturalized, for whatever his deportability situation was before he became a citizen, after he is granted citizenship the prior grounds of deportation no longer exist; and the fact that he again has become deportable does not revive the old warrant.
CHARGE:
Warrant: Act of 1924 -- Remained longer.
Discussion: The respondent is a native of Italy, who presently
claims to be stateless and who last entered the United States at San
Diego, Calif., on May 20, 1940, as a seaman. He has expressed a
preference to be deported to Mexico.
The record discloses that the warrant of arrest was issued on March
31, 1941; that the original deportation hearing was conducted on May
20, 1941, and the warrant of deportation issued on September 5, 1941.
On July 8, 1949, the Board of Immigration Appeals entered an order
directing the withdrawal of the order and warrant of deportation and the
reopening of the case to permit the record to be brought up to date.
Pursuant thereto hearings were held on October 1 and November 4, 1949.
Counsel for respondent now contends that since the deportation hearings
were not held in conformity with the provisions of the Administrative
Procedure Act, due process of law was not accorded respondent and a
hearing de novo should be ordered. However, it has been recently held
that where the warrant of arrest was served before the enactment of the
Administrative Procedure Act of 1946, the mere fact that the proceedings
were reopened and conducted after the enactment of such act does not
entitle the alien to a hearing de novo. Harisiades v. Shaughnessey, 90
F.Supp. 431 (S.D.N.Y. April 4, 1950); Matter of P A-6093609 (June 27,
1950), Interim Decision 192, 3, I. & N. Dec. 818. Consequently, the
record establishes that due process was accorded respondent and a
hearing de novo is not required.
The record further discloses that respondent last entered the United
States at San Diego, Calif., on May 20, 1940, as a member of the crew of
the Italian ship S.S. Leme. Respondent has testified that after arrival
in San Diego the vessel proceeded to San Francisco. Calif. and
Portland, Oreg. He further stated that he was permitted to leave the
ship at any time, if he so desired. In March 1941 the vessel was seized
by the United States Government and on March 31, 1941, the warrant of
arrest was issued. Counsel for the respondent now contends that
respondent's entry into the United States was involuntary and therefore
no entry within the contemplation of the immigration laws was made by
respondent. In support of this contention, counsel cites the case of
U.S. ex rel. Bradley v. Watkins, 163 F.(2d) 328 (C.C.A. 2, July 23,
1947), and related cases which held that an alien seized by the United
States elsewhere and brought to this country against his will for
internment for security reasons as an alien enemy cannot be deported as
an immigrant, at least not before he has been afforded an opportunity to
depart voluntarily. Counsel also cites the case of Carmichael v.
Delaney, 170 F.(2d) 239 (C.A. 9, October 18, 1948), wherein it was held
that a resident of the United States who enlisted in the United States
Maritime Service during World War II and participated with American Task
Forces upon the high seas did not make a new "entry' into the United
States within the immigration laws when returning to the United States.
However, the facts in the cited cases are not similar to those in
respondent's case. The respondent of his own will entered into his
employment as a seaman aboard the Italian ship and voluntarily entered
the United States on May 20, 1940, as a seaman aboard such ship. From
such date until the date of the seizure of the vessel in March 1941, he
could have left the ship while it was in the United States ports.
Because the vessel on which the respondent arrived in the United States
continued to remain in this country does not necessarily mean that
respondent was compelled to stay in this country. There was no element
of force or coercion in the entry of respondent in the United States on
May 20, 1940, and his remaining in the United States until March 31,
1941. It was therefore, properly held that an entry into the United
States was made within the meaning of the immigration laws. See Matter
of M S , A-5121836 (formerly 56074/276).
After the issuance of the warrant of deportation on September 5,
1941, respondent was taken into the custody of this Service. He
remained in detention at Fort Missoula under an order of internment as
an enemy alien, was paroled on December 11, 1943, and enemy alien
proceedings vacated on April 21, 1944. On November 13, 1944, he was
inducted into the United States Army and while a member of such armed
forces, was naturalized as a United States citizen on January 17, 1945,
by the District Court of Geary County at Junction City, Kans., pursuant
to the provisions of section 701 of the Nationality Act of 1940 (8 U.S.
C.A. 1101, as amended). However, on June 20, 1945, he was charged in a
court martial proceeding of willfully maiming himself in the left foot
on May 17, 1945, by shooting himself with a rifle and thereby unfitting
himself for the full performance of military service. He was found
guilty on July 3, 1945, sentenced to 5 years hard labor which sentence
was terminated by his dishonorable discharge on April 10, 1948. On
October 19, 1948, his United States citizenship was revoked by order of
the United States District Court at San Francisco, Calif., pursuant to
the provisions of section 704 of the Nationality Act of 1940, as
amended.
The naturalization of respondent and the subsequent cancellation of
his citizenship raises a question as to whether he is deportable on the
charge stated in the present warrant of arrest. If, because of the
cancellation, he is deemed never to have been a citizen of the United
States, he must be regarded as always having been an alien and the
charge stated in the outstanding warrant of arrest is sustainable. It
is, therefore, necessary to examine the provisions of the statute under
which the naturalization and subsequent cancellation took place.
Respondent was naturalized as a United States citizen on January 17,
1945, pursuant to the provisions of Section 701, title III of the
Nationality Act of 1940, as amended, which was in effect at that time.
His citizenship was revoked on October 19, 1948, pursuant to the
provisions of section 704 (supra), which in pertinent detail read as
follows:
The provisions of this title shall not apply to (1) any person
who during the present war is dishonorably discharged from the
military or naval forces * * * provided that citizenship granted
pursuant to this title may be revoked as to any person
subsequently dishonorably discharged from the military or naval
forces in accordance with section 338 of this act and such ground
for revocation shall be in addition to any other provided by law.
Prior to the enactment of section 704 (supra), the only provision
relating to cancellation of citizenship contained in the Nationality Act
of 1940 was that of section 338, the provisions of which referred to
cancellation because of fraud or illegality in obtaining naturalization.
It has been held that where citizenship was revoked because of fraud or
illegality, citizenship was lost ab initio and the order revoking
citizenship was tantamount to a finding that the person involved was
never a citizen of the United States. (Johannessen v. U. S., 225 U.S.
227 (1912); U.S. v. Iuria, 231 U.S. 9 (1913); Rosenberg v. U.S., 60
F.(2d) 475 (C.C.A. 3, 1932); Battaglino v. Marshall, 172 F.(2d) 979
(C.A. 2, 1949). In cases of this type, the fraud or illegality occurs
at the time of naturalization; however, where a member of the armed
forces was naturalized pursuant to the provisions of section 701
(supra), there was no defect in the proceedings at the time of the
naturalization. Cancellation of citizenship for fraud or illegality
takes place because of a defect in the original proceedings whereas
cancellation pursuant to section 704 (supra), may occur because of a
subsequent condition; namely, dishonorable discharge. The problem
presented, therefore, is whether cancellation of respondent's
citizenship under section 704 (supra), deprived him of citizenship ab
initio.
It is apparent that by enacting section 701 of the Nationality Act of
1940, as amended, Congress sought to award benefits to those aliens who
served honorably in the armed forces of the United States. These
benefits represented a reward in recognition of honorable service to
this country. It is clear that Congress desired only to grant the
benefits to those who served honorably. The reports of the
congressional committees which considered this legislation declared that
the benefits of the statute would be available to persons who were
"honorably serving in the armed forces of the United States' (H. Repts.
1765, February 9, 1942, and 1896, March 19, 1942, 77th Cong., 2d sess.).
The naturalization of respondent as a United States citizen was made
subject to a condition subsequent; namely, that his citizenship might
be revoked if he was dishonorably discharged from the military forces of
the United States. He failed to obtain an honorable discharge and his
citizenship was revoked. Consequently, he obtained no benefits under
this act. He is, therefore, in the position of one who was never a
United States citizen.
The decree of revocation having extinguished ab initio any benefits
that may have occurred to respondent as a result of his naturalization,
respondent is restored to his original status of alienage. He is,
therefore, deportable under the Immigration Act of 1924.
Upon consideration of the entire record, the recommendation of the
presiding officer as to deportability is hereby adopted.
Counsel for respondent requests that the entry of the final order in
this case be deferred inasmuch as a petition had been filed by
respondent with the Office of the Judge Advocate General for a new trial
in respect to the court martial of respondent. Information, however,
has been received from such office to the effect that after
consideration of such petition, it is concluded that there was no
justification for granting him relief and on April 7, 1950, action was
taken by the Judge Advocate General of the Army denying the relief
requested.
Respondent has applied for the privilege of suspension of deportation
or in lieu thereof, for voluntary departure. He is a 29-year-old single
male, who has been in the United States since May 20, 1940, and who was
in the United States on July 1, 1948. From September 5, 1941, to
December 11, 1943, he was in the custody of this Service, first under
deportation proceedings and then as an enemy alien. He was on parole as
an enemy alien from September 11, 1943, to April 21, 1944. From about
June 20, 1945, to April 10, 1948, he was in confinement as a result of
his conviction in the court-martial proceedings. Since his release from
confinement he has been steadily employed and has earned about $4,500
from the period of about April 1948 to November 30, 1949. He has $1,000
in a savings account and four United States war bonds in the sum of $25
each. He has testified that he has never been arrested. Report from
the Federal Bureau of Investigation reflects that he has no prior
criminal record on file with that Bureau. He was questioned about an
arrest for sabotage, which charge was dismissed, and he has denied
participating in any such activities. Respondent has submitted
affidavits attesting to his character and residence in the United States
and letters from former employees. Respondent's present employer
appeared at this office and testified in respondent's behalf. His
residence in the United States for a period of 7 years and on July 1,
1948, has been established. Report of investigation by this Service
reflects that he has not been other than a person of good moral
character subsequent to his discharge from the Army.
The only relative in the United States that respondent has is an
uncle with whom respondent does not correspond. He has a mother in
Italy whom he supports, and who is entirely dependent upon him for
support. On July 3, 1945, he was found guilty in court-martial
proceedings of willfully maiming himself in the left foot on May 17,
1945, and thereby unfitting himself for full performance of military
service. He was given a dishonorable discharge and sentenced to 5 years
at hard labor, serving about 3 years of such sentence. He has alleged
in his application for a certificate of identification executed June 2,
1943, that he had been a member within the past 5 years of the Fascist
Youth Organization in Italy. This organization was an integral part of
the Fascist movement in Italy. In view of his lack of ties in the
United States, his conduct while a member of the armed forces and his
membership in a totalitarian party, discretionary relief is not
warranted in his case.
Respondent may also be deportable under the act of 1918, as amended
by the Internal Security Act of 1950, because of his membership in a
totalitarian party. Were such charge sustained, his case would come
within the provisions of section 19(d) of the Immigration Act of 1917
precluding him from obtaining any discretionary relief. In view of the
contemplated action in this case, no useful purpose would be served in
reopening the proceedings to inquire into the applicability of the
charge referred to.
In the light of the foregoing, it is concluded that the application
of respondent for suspension of deportation or in lieu thereof for
voluntary departure should be denied.
Order: It is ordered that the application of the alien for
suspension of deportation or voluntary departure in lieu thereof be
denied.
It is further ordered that the alien be deported from the United
States pursuant to law on the charge stated in the warrant of arrest.
Discussion: Respondent is a native and citizen of Italy, who last
entered the United States at San Diego, Calif., on May 20, 1940, as a
seaman. Counsel pleads the procedural provisions of the Administrative
Procedure Act, claiming that the proceedings in this matter have not
been held in accordance with that statute. On September 27, 1950,
Congress enacted Public Law 843, 81st Congress., second session., 64
Stat. 1048, which provides that proceedings relating to exclusion or
expulsion of aliens are to be held without regard to the Administrative
Procedure Act. Therefore, if new hearings were held they would not
necessarily be in accordance with the Administrative Procedure Act.
Other arguments of counsel relating to precedure, constitutional
questions, and the applicability of the Administrative Procedure Act to
these hearing, have been adequately answered by the court in United
States ex rel. Harisiades v. Shaughnessy, 187 F.(2d) 137 (C.A. 2, 1951).
On September 5, 1941, respondent, with the rest of the crew of the
Italian vessel on which he arrived, was interned as an enemy alien at
Fort Missoula, Mont. He was paroled on December 11, 1943. Enemy alien
proceedings were vacated on April 21, 1944. On November 13, 1944, he
was inducted into the United States Army, and on January 17, 1945, he
was naturalized a United States citizen. However, on June 20, 1945, he
was charged in a court-martial proceeding of willfully maiming himself
in the left foot on May 17, 1945, by shooting himself with a rifle and
thereby unfitting himself for the full performance of military service.
He was found guilty on July 3, 1945, and sentenced to 5 years hard
labor. This sentence was terminated by his dishonorable discharge on
April 10, 1948. On October 19, 1948, his United States citizenship was
revoked by order of the United States District Court at San Francisco,
Calif., pursuant to the provisions of section 704 of the Nationality Act
of 1940, as amended.
The Commissioner found that because of the cancellation of his
citizenship, respondent must be regarded as having been at all times an
alien, and therefore concluded that he is deportable under the
Immigration Act of 1924. The Commissioner found that the naturalization
of respondent under section 701 of the Nationality Act of 1940, as
amended, was subject to "a condition subsequent,' because his
citizenship might be revoked if he were dishonorably discharged from the
military forces of the United States. We disagree with the conclusion
of the Commissioner that respondent was granted citizenship subject to
"a condition subsequent.' Citizenship of the United States is not so
granted by United States courts. Section 701 of the Nationality Act of
1940, as amended, provides, in part:
Notwithstanding the provisions of section 303 and 326 of this
act, any person not a citizen, regardless of age, who has served
or hereafter serves honorably in the military or naval forces of
the United States during the present war * * * may be naturalized
upon compliance with all the requirements of the naturalization
laws. * * *
Section 704 (supra), provides, in part:
* * * citizenship granted pursuant to this title may be revoked
as to any person subsequently dishonorably discharged from the
military or naval forces in accordance with section 338 of this
act; and such ground for revocation shall be in addition to any
other provided by law.
Subsequent conditions can arise which create a ground for withdrawing
the citizenship previously granted. This is our interpretation of the
meaning of the statute. Whatever the situation was before the alien
became a citizen with regard to his deportability, after he is granted
citizenship the prior grounds for deportation no longer exist. The fact
that he again has become deportable does not revive the old warrant. We
do not believe that respondent can be deported on a proceeding
instituted before he was naturalized.
It is our conclusion that the present proceeding must be canceled
without prejudice to the institution of any new proceeding the
Immigration and Naturalization Service may feel is warranted.
Order: It is ordered that the present proceeding be canceled without
prejudice to the institution of a new proceeding by the Immigration and
Naturalization Service.
Citizenship -- Expatriation, by residence abroad after naturalization here -- Treaty between United States and Lithuania (1938) -- Section 404 and 409 of the Nationality Act of 1940, as amended.
(1) Loss of citizenship was held not to have occurred under the provisions of the treaty between the United States and Lithuania, in the case of a native Lithuanian who was naturalized here, then went to Lithuania in 1914, where he remained until about September 1944 (when he was forced into labor in Germany, where he remained until embarkation for the United States in December 1948), returning to the United States in December 1948; the subject was held to have overcome the presumption of loss of United States nationality under the provisions of said treaty by his testimony (to the effect he intended at all times to return to the United States) and by his actual return.
(2) The above subject returned to the United States in December 1948 with a United States passport, the application for which was submitted in January 1948, in Germany; he (as well as his wife whom he married in 1920 in Lithuania who accompanied him to Germany in 1944) lost United States citizenship on October 15, 1946, under the provisions of section 404(b) of the Nationality Act of 1940 and section 409 of that act, as amended, it being noted (a) that he had lived in his native country at least from January 13, 1941 (the effective date of the Nationality Act of 1940), to September 1944, a period of over 3 years (and so it was unnecessary to consider the effect of residence before January 13, 1941, in computing the 3-year period), and (b) that he had failed to return or to have been "en route' to the United States, on or before October 14, 1946. (For "en route' interpretation, see 2, I. & N. Decs., 816 and 889). The fact that he was in Germany (for less than 5 years) immediately before returning to the United States does not affect this conclusion.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 -- No visas.
Discussion: This record relates to two appellants, natives of
Lithuania, husband and wife, ages 65 and 49 years, respectively, who
arrived at the port of New York on December 26, 1948, as passengers on
the S.S. Ernie Pyle accompanied by their two children, ages 18 and 10
years, respectively. These appellants were found inadmissible by a
board of special inquiry on the ground stated above and have appealed.
The two minor children were found to be American citizens and admitted
as United States citizens. The appellants have been paroled into the
United States pending decision on appeal.
The appellants have presented United States passports issued on
November 2, 1948, to expire March 2, 1949, at the office of the
consulate of the United States at Bremen, Germany. They are not in
possession of immigration visas or other immigration documents.
The female appellant was born in Lithuania and has never lived in the
United States. She married the male appellant in Lithuania on July 12,
1920.
The male appellant was born in Lithuania on July 20, 1885, and
entered the United States about 1907. He was naturalized an American
citizen in Brockton, Mass., on May 6, 1913. He acquired American
citizenship through such naturalization. His wife, the female
appellant, became an American citizen on or about July 12, 1920, by
marriage to the male appellant at which time he was an American citizen
(act of March 2, 1907; 34 Stat. 1229).
The question to be resolved in this case is whether the appellants
are American citizens.
As stated above the male appellant was admitted to American
citizenship on May 6, 1913. The year following, 1914, he left the
United States and went to Lithuania, where he lived continuously to
September or October 1944, when he left Lithuania and went to Germany
alleging that he was forced to go there as a slave laborer and remained
in Germany until about December 14, 1948, when he departed to come to
the United States arriving December 26, 1948. His wife, the female
appellant, also lived in Lithuania from birth up to September or October
1944, when she left Lithuania and came to Germany with her husband, the
male appellant, and remained in the country last named up to about
December 14, 1948, when she embarked in Germany for the United States
arriving on December 26, 1948, with her husband.
The question arises relative to whether the male appellant
expatriated pursuant to the treaty between the United States of America
and Lithuania which was ratified at Washington on July 20, 1938 (53
Stat., p. 1569). In this connection it is noted that under the
provisions of that Treaty a national of either country who has been or
shall become naturalized in the territory of the other country, and who
shall renew his residence in his country of origin without the intent to
return to the country in which he was naturalized, shall be held to have
renounced his naturalization. It is further noted that the intent not
to return may be held to exist when a person naturalized in one country
shall have resided more than two years in the other country (but this
presumption may be overcome by evidence to the contrary).
The male appellant has testified that he returned to Lithuania in
1914 to see his parents and possibly get married. After his arrival
there his children were born, his mother died, he had to sell a large
farm, the Communists came, and the two wars made it difficult for him to
leave that country. He stated positively that at the time he returned
to Lithuania in 1914 and at all other times subsequently thereto, he
intended to return to the United States.
Although the male appellant did return to his native country
Lithuania in 1914 and remained there to 1944, he has overcome the
presumption of loss of United States nationality which arises under the
provisions of the above-mentioned treaty by his testimony to the effect
that he at all times intended to return to the United States, and did
not intend to remain in Lithuania permanently at any time; and the fact
that he has actually returned to the United States. Consequently, it is
found that he has not lost United States nationality under the
provisions of the treaty between the United States and Lithuania
ratified on July 20, 1938 (53 Stat., p. 1569).
The next question considered is whether the appellants have
expatriated pursuant to section 404(b) of the Nationality Act of 1940
effective January 13, 1941, as found by the board of special inquiry.
Both appellants acquired American nationality by naturalization. They
admit that they were living in Lithuania from at least January 13, 1941,
to on or about September 1944, a period of more than 3 years. Section
404(b) of the Nationality Act of 1940 reads:
A person who has become a national by naturalization shall lose
his nationality by (54 Stat. 1170; 8 U.S.C. 804):
* * * Residing continuously for 3 years in the territory of a
foreign state of which he was formerly a national or in which the
place of his birth is situated, except as provided in section 406
hereof (53 Stat. 1170; 8 U.S.C. 804).
For the purposes of section 404 of the Nationality Act of 1940,
section 104 of such act provides that: "The place of general abode
shall be deemed the place of residence' (8 U.S.C. 504). These
appellants admit that they lived in Lithuania for a period of at least 3
years. An examination of the eight subdivisions of section 406 of the
Nationality Act of 1940 reveals that these appellants do not come within
the exceptions enumerated therein.
The next question considered is whether these appellants have lost
United States nationality, in view of the facts and findings above, by
failing to return to the United States on or before October 14, 1946, as
provided in section 409 of the Nationality Act of 1940 (as amended)
which reads:
Nationality shall not be lost under the provisions of section
404 or 407 of this act until the expiration of 6 years following
the date of the approval of this act: Provided, however, That a
naturalized person who shall have become subject to the
presumption that he has ceased to be an American citizen as
provided for in the second paragraph of section 2 of the act of
March 2, 1907 (34 Stat. 1228), and who shall not have overcome it
under the rules in effect immediately preceding the date of the
approval of this act, shall continue to be subject to such
presumption for the period of 6 years following the date of the
approval of this act unless it is overcome during such period.
As stated above these appellants, who were American citizens by
naturalization, resided in their native country for a period of at least
3 years following January 13, 1941. However, they left their native
country Lithuania before the expiration of 6 years following January 13,
1941, and moved to Germany where they resided from 1944 to a date in
1948. They returned to the United States arriving December 26, 1948.
Section 409 of the Nationality Act of 1940 (as amended), quoted
above, clearly states that nationality shall not be lost under the
provisions of section 404 of such act until the expiration of 6 years
following the date of the approval. It is obvious therefore that the
appellants had not lost American nationality at the time they left the
country of their nativity in 1944 and removed to Germany. If United
States nationality has been lost by these appellants such loss occurred
on October 15, 1946, by reason of their residence in Lithuania for a
period in excess of 3 years immediately preceding 1944 upon their
failure to return to the United States unless they satisfactorily
establish that prior to October 15, 1946, they completed arrangements to
come to the United States or set in motion appropriate machinery to
effect their return prior to that date, but were precluded from reaching
the United States before that date because of delay due to conditions
incident to travel which were beyond their control.
A decision involving comparable facts to the instant case is not at
hand. However, reference is made to an opinion of the general counsel
under date of December 18, 1946 (File 500/2), concerning sections 404
and 409 of the Nationality Act of 1940 (as amended). In that opinion a
situation similar to the situation in the instant case was considered as
follows:
There is an alternative interpretation which is not included in
the memoranda accompanying the Attorney General's decision, at
least not clearly so, but which occurred to me in the original
consideration of this question. I did not choose to adopt it
because I was constrained to conclude that the law and the facts
precluded its adoption. The alternative interpretation is: That
any person having had, prior to October 15, 1946, the requisite
residence prescribed by any provision of section 404 of the
Nationality Act of 1940 who had departed from the foreign state of
such residence prior to that date has not lost his nationality
under the provisions of section 404 and will not hereafter lose
such nationality unless he shall again abide in a foreign state
for the requisite period prescribed in that section. For the
reasons given, I have been unable to adopt this interpretation,
and I am unable to perceive that it is implicit in the
interpretations of either the officers of the Department of State
or of the Department of Justice.
This question was also considered by Theron L. Caudle, Assistant
Attorney General, Criminal Division, when in a memorandum dated November
26, 1946, addressed to the Assistant Solicitor General he stated:
The assistant to the legal adviser of the State Department
makes the observation that sections 404 and 409 as amended by the
act of October 11, 1945, contain no express provision to the
effect that naturalized citizens who had resided in a foreign
country during the periods prescribed in section 404 could
preserve their citizenship by returning to the United States to
reside, although, he points out, this appears to have been assumed
by the officials of the Department of Justice as well as the
chairman of the committee on Immigration and Naturalization of the
House, and would seem to be the obvious intent of the law.
However, after considering the legislative history of the statutes
it seems clear that under the language of the statutes United
States citizenship has been preserved when the naturalized citizen
has terminated foreign residence prior to October 14, 1946, with
the undisputed intent of immediately reestablishing residence in
the United States when such change of abode becomes physically
possible despite the fact that he had not succeeded in reaching
the United States prior to the date named.
In his conclusion Mr. Caudle states:
Based on the foregoing we believe that proof prior to October
14, 1946, of abandonment of the place of abode in the territory of
a foreign state, with the intent of returning immediately to the
United States to reside permanently, should be the test to
determine whether United States citizenship has been preserved by
the persons who had resided in foreign territory for the periods
set forth in section 404, rather than the actual touching of the
shores of the United States prior to the date named.
The views of Assistant Attorney General Caudle were approved by the
Attorney General on December 9, 1946.
It thus follows that the fact that the appellants no longer resided
in Lithuania subsequent to 1944 does not affect their expatriation under
section 404(b) of the Nationality Act of 1940 under the facts here
presented, having acquired more than 3 years residence in that country
prior to their departure therefrom.
Although these appellants in 1944 had left the country in which they
had been living for a period of more than 3 years and went to Germany,
they were not at that time en route to the United States, the facts
disclosing that the reason they then left Lithuania was because the
German Army forced them into Germany. While the testimony shows that an
application was made for a United States passport in October 1946, the
Department of State informed this Service that an application was
submitted on January 21, 1948, upon which a passport was issued on
November 2, 1948.
This record fails to establish that the appellants were prevented
from leaving Lithuania prior to 1944 to return to the United States, nor
does the record establish that they had completed all arrangements to
return to this country at any time on or prior to October 14, 1946, or
that they were en route to this country on October 14, 1946. The case
is therefore distinguishable from the facts in Matter of V , A-6501663
(Attorney General, May 14, 1947, 2, I. & N. Dec. 816); and Matter of C
, A-6576113 (C.O., June 6, 1947, 2, I. & N. Dec. 889). In the decisions
last named it was held that it was not necessary that a naturalized
citizen must have left the country in which he had been residing on or
prior to October 14, 1946, but that it was sufficient if he had
completed all arrangements to return to the United States on or before
that date, but his return was delayed because of transportation
difficulties or other delays incident to travel, over which he had no
control.
It is concluded that these appellants who resided in the country of
their nativity for a period of 3 years following the effective date of
the Nationality Act of 1940 (January 13, 1941), and who did not return
to the United States on or before October 14, 1946, have lost American
nationality pursuant to section 404(b) of the Nationality Act of 1940.
The appellants must qualify as aliens. They are not in possession of
unexpired immigration visas.
The findings of fact and conclusions of law proposed by the board of
special inquiry and read into the record on December 28, 1948, are
hereby adopted except that new finding of fact (11) is added as follows:
F.F. (11) That the evidence of record fails to establish that O
O or J O on or prior to October 14, 1946, completed arrangements
to come to the United States or had set in motion appropriate
machinery to effect their return to the United States prior to
that date but were precluded from reaching the United States
before that date because of delay due to conditions incident to
travel which were beyond their control.
The excluding decision will be affirmed. The parole of the aliens
into the United States will be terminated.
Order: It is ordered that the excluding decision be affirmed.
It is further ordered that the parole of the aliens into the United
States by the Field Office be terminated.
Upon consideration of the entire record: It is ordered that the
appeal from the decision of the Commissioner be and the same is hereby
dismissed.
Subversive, proscribed organization, member or affiliate of -- Communist Party of United States of America -- Expulsion ground -- Act of 1918, as amended -- "Voluntary' membership or affiliation -- Public Law 14 (H.R. 2339, 82d Cong., approved March 28, 1951) -- "Duress' defense -- Evidence -- Section 4(b) of the Internal Security Act of 1950.
An alien, who admitted he was a member of the Communist Party of the United States of America for about a year (1936-37), who had a membership book, and who held the position of financial secretary of the unit of that party to which he belonged (his only duty as such being to collect monthly dues), cannot be said to have been a person who did not know or have reason to believe that at the time he affiliated with that party that it was a Communist organization (sec. 4(b) of the Internal Security Act of 1950) under the circumstances of this case; nor that his was merely an unknowing or nominal membership; and notwithstanding the pleas, that the circumstances under which he joined amounted to duress (so that he was not to be considered a "member of' or "affiliated with' the Communist Party as provided in Public Law 14 (supra), and the contention that such membership was not voluntary and was for the purposes of obtaining employment and shelter, he was found deportable under the act of 1918, as amended, as a member of the Communist Party in this country. (See 4, I. & N. Decs. 341 and 504.)
CHARGES:
Warrant: Act of 1918, as amended -- After entry was a member of an organization which advocated overthrow of the Government of the United States by force and violence.
Act of 1918, as amended -- After entry was a member of an organization which distributed printed matter advocating overthrow of Government of the United States by force and violence.
Act of 1924 -- No immigration visa.
Lodged: Act of 1918, as amended -- After entry was a member of the
Communist Party of the United States.
Discussion: Upon consideration of the entire record, including the
exceptions taken, the recommended order of the officer conducting the
hearing is hereby adopted.
Counsel has filed brief wherein he sets forth that respondent, being
unemployed and dispossessed from his apartment, obtained employment as a
porter, and few days thereafter was compelled by his employer to join
the Communist Party; that respondent was faced with the alternative of
discharge from his employment; and that respondent's membership in the
Communist Party of the United States was therefore the result of duress.
It has been held in the State of New York, where the facts in the
instant case occurred, that "duress' is not established merely by proof
that consent was procured on account of the pressure of financial
circumstances. Criterion Holding Company v. Cerussi, 140 Misc. 855
(1931); 250 N.Y.S. 735. There is no proof that respondent could not
have been discharged at any time, with or without cause. The threat to
exercise or enforce a legal right does not constitute duress. Daly v.
Sperry Gyroscope Company, Inc., 195 Misc. 169 (1949); 89 N.Y.S.2d 566.
We therefore find that the respondent has failed to establish duress.
It is further argued that the Communist Party of the United States
was a recognized political party during the period of respondent's
membership therein. However, the language of the act of October 16,
1918, as amended, is clear. That act renders deportable any alien who
was, at any time after entry, a member of the Communist Partv of the
United States.
Counsel raises the question of the constitutionality of the act of
October 16, 1918, as amended. It is well settled that it is not within
the province of this Service to pass upon the constitutionality of a
statute enacted by the Congress. That is strictly a judicial function.
(Panitz v. District of Columbia, 112 F.(2d) 39, 42 (C.A.D.C., 1940),
Todd v. Securities and Exchange Commission, 137 F.(2d) 475, 478 (C.C.A.
6, 1943)). Courts have held that the fact that an immigration law may
be retrospective in its application to an alien does not make it
unconstitutional. (Mahler v. Eby, 264 U.S. 32, 39 (1924); 68 L.Ed.
549, 554; 44 S.Ct. 283, 266, U.S. ex rel. Lubbera v. Reimer, 22 F.
Supp. 573 (D.C., S.D.N.Y., 1938). See also Lauria v. U.S., 271 Fed.
261 (C.C.A. 2, 1921); cert. den., 257 U.S. 635; 66 L.Ed. 408; 42 S.
Ct. 48 (1921)).
The record shows that respondent last entered the United States on
July 22, 1925, as a seaman. That entry has been verified. He admitted
that at the time of that entry he intended to remain permanently in the
United States, and that he was not then in possession of a valid
immigration visa. He is therefore deportable under the Immigration Act
of 1924.
Counsel requests that consideration be given to respondent's
application for suspension of deportation. However, by virtue of his
deportability under the act of October 16, 1918, as amended, respondent
is barred from such relief by the provisions of section 19(d) of the
Immigration Act of February 5, 1917.
Order: It is ordered that the application for suspension of
deportation be denied.
It is further ordered that the alien be deported from the United
States pursuant to law, on the following charges:
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 and not exempted from the presentation thereof by
said act or regulations made thereunder;
The act of October 16, 1918, as amended, in that he is found to
have been, after entry, a member of the following class set forth
in section 1 of said act: an alien who was a member of the
Communist Party of the United States.
Discussion: These proceedings arose out of respondent's efforts
which began in 1940 to adjust his status in this country and to acquire
American citizenship. Respondent entered the United States on July 22,
1925, as a seaman. He had probably remained in the United States at all
times since that date. He is 48 years old, a native and citizen of
Germany. The Assistant Commissioner ordered that he be deported from
the United States as an immigrant not in possession of a valid
immigration visa, and on the lodged charge, that after entry he was a
member of the Communist Party of the United States.
There is no doubt that respondent is deportable on documentary
grounds. The questions are whether or not he is deportable on the
lodged charge and whether he can and should be granted discretionary
relief. Respondent admits his membership in the Communist Party from
1936 to the early part of 1937, approximately a year, during which he
was a member of a unit of the Communist Party of the United States of
America and held the position of financial secretary in that unit. He
requests the exercise of discretionary relief in his behalf, in spite of
the membership in the proscribed organization. His request for
discretionary relief is based upon the facts that he has lived in the
United States for 26 years and that his deportation unquestionably would
result in serious economic detriment to his American citizen wife. In
1937 respondent married a divorced women with three small children. He
cared for her and for her children until the boys were grown and became
independent. She does not work, and is entirely dependent upon him.
The boys all served in the Armed Forces of this country. One is
permanently an invalid from that service and lives with respondent. The
hearing officer found that respondent's deportation unquestionably would
result in serious economic detriment to his wife. We concur in that
finding.
Counsel objects to the application of the Internal Security Act to
respondent as an unconstitutional ex post facto application. The
constitutionality of this statute, as it affects immigration
proceedings, has been adequately established in the courts (U.S. ex rel.
Harisiades v. Shaughnessy, 187 F.(2d) 137 (C.A. 2, 1951)).
Most important, respondent and counsel plead that the circumstances
under which respondent joined the Communist Party in 1936 amount to
duress, and, therefore, he is not to be considered as having been a
"member of' or "affiliated with' the Communist Party, as provided in
Public Law 14, 82d Congress (H.R. 2339), approved March 28, 1951. This
statute, an amendment to the Internal Security Act of 1950, provides as
follows:
That the Attorney General is hereby authorized and directed to
provide by regulations that the term "member of' and "affiliated
with' where used in the act of October 16, 1918, as amended, shall
include only membership or affiliation which is or was voluntary,
and shall 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.
It is the contention of counsel that respondent's membership in the
party was not voluntary and was for the purposes of obtaining employment
and shelter, another essential of living. The facts with regard to his
membership are as follows. In 1936, respondent was an apartment house
superintendant. His union called him out on strike, and the union lost
the strike. Respondent was evicted from his apartment, and his
household possessions were placed on the sidewalk where they remained
for 3 days. He then secured a position as porter in a cooperative
apartment house. This job gave him an apartment for his wife and three
children and paid him $25 a week. After a week of employment, he was
advised that in order to retain this job he must join the Communist
Party. He has testified that all members of the staff in that
cooperative apartment house, about 15 in number, were members of the
Communist Party. He states that at that time it was not against the law
to be a member of the Communist Party, and he did not hesitate to join
in order to retain his position. After a year, he quarreled with the
other members of his unit of the party on matters of policy. As he
said, "I disagreed with their viewpoints.' He resigned from the party,
and he lost his job and his apartment. This confirms his belief that it
was necessary to belong to the Communist Party to work in that apartment
house. After that he purchased a parking lot on the installment plan,
which he has operated ever since. He testified that he nets about
$2,000 to $2,300 a year operating the parking lot, that this is not
enough to allow him to hire a manager. His wife cannot drive; she has
never been able to secure a license, and therefore will be unable to
operate the lot alone, in case he is deported.
It is our opinion that this is a hardship case, that respondent is a
worthy person entitled to discretionary relief, if it were in the power
of this Board to give it to him. Since the passage of the Internal
Security Act of 1950, we no longer have the power to exercise the 7th
proviso of the 1917 act in favor of an alien in the position in which
respondent now finds himself. /1/ There can be no doubt from the
language of the statute that Congress intended to withdraw and has
withdrawn from the Attorney General and this Board the power to grant
7th proviso relief in any case of this kind, no matter how deserving the
alien may be.
We do not believe that respondent comes within section 4(b) of the
Internal Security Act of 1950, as a person who did not know or have
reason to believe that at the time he affiliated with the party that it
was a Communist organization. /2/ He testified that he had a membership
book, that he was financial secretary of the group, his only duty,
however, being to collect monthly dues. In describing the incident
which terminated his relations with the party he said, "I had the big
argument to which they called me that I am a Trotskyite and they
discharged me.' It cannot be said that his was merely an unknowing or
nominal membership.
Since respondent has admitted past membership in the Communist Party,
under the statutes as they now exist, we have no authority to grant any
form of discretionary relief in this case.
Order: It is ordered that the request for preexamination or
suspension of deportation be denied.
It is further ordered that the appeal be and the same is hereby
dismissed.
(1) Internal Security Act of 1950, Public Law 831, 81st Cong.,
amending sec. 6(a) of the 1918 Act. The provisions of the seventh
proviso to section 3 of the Immigration Act of February 5, 1917, as
amended (39 Stat. 875; 8 U.S.C. 136), relating to the admission of
aliens to the United States, shall have no application to cases falling
within the purview of section 1 of this Act.
(2) Section 4(b) act of 1918, as amended. The Attorney General
shall, in like manner as provided in subsection (a) of this section,
take into custody and deport from the United States any alien who at any
time, whether before or after the effective date of this act, has
engaged, or has had a purpose to engage, in any of the activities
described in paragraph (1) or in any of the subparagraphs of paragraph
(3) of section 1, unless the Attorney General is satisfied, in the case
of any alien who engaged in any activity within category (C) of
paragraph (3) of section 1 that such alien did not know or have reason
to believe at the time such alien became a member of or affiliated with
the organization referred to in category (C) of paragraph (3) of section
1 (and did not thereafter and prior to the date upon which such
organization was registered or required to be registered under section 7
of the Subversive Activities Control Act of 1950 acquire such knowledge
or belief) that such organization was a Communist organization.
Discussion: This case is before us on a motion for reconsideration
of the respondent's counsel dated November 21, 1952.
The facts in this case are set forth in our decision of October 8,
1951, dismissing the respondent's appeal from the order directing his
deportation. Briefly, the respondent entered the United States in 1925
as a seaman and we found him deportable on the ground that at the time
of entry he was an immigrant who was not in possession of a valid
immigration visa and on the ground that after entry he had been a member
of the Communist Party of the United States for a period of
approximately 1 year; that is, during 1936 or 1937. As to the
circumstances under which the respondent became a member of that party,
he testified that in 1936 he was evicted from his apartment; that his
household possessions remained on the sidewalk for 3 days; that he then
secured a position as a porter in a cooperative apartment house; that
all members of the staff of this apartment house were members of the
Communist Party; and that he joined the Communist Party because he was
informed that it would be necessary for him to do so in order to retain
that employment.
Following our decision of October 8, 1951, a suit was filed in the
United States District Court for the Southern District of New York for
the purpose of testing the legality of the order directing the
respondent's deportation. On September 23, 1952, the court directed
that the writ be sustained unless this Board clarified the basis of its
decision that it lacked power to afford the respondent discretionary
relief. U.S. ex rel. Strauber v. Shaughnessy, 107 F.Supp. 399.
Subsequently, the application for writ of habeas corpus was withdrawn by
stipulation. The question, which the court indicated in its opinion
should be clarified, was whether the respondent's membership in the
Communist Party of the United States was or was not voluntary within the
meaning of the act of March 28, 1951 (8 U.S.C. 137-9). This point is
also raised in the motion for reconsideration, counsel contending that
the respondent was not a "member' of the Communist Party because he
joined that party solely for the purposes of obtaining employment or
other essentials of living.
We recently considered a case in which the facts were entirely
analogous to those in the respondent's case. Matter of D , 4, I. & N.
Dec. 675, decided June 24, 1952. In that case, we reviewed the
legislative history of the act of March 28, 1951, and concluded that the
alien was a voluntary member of the Communist Party notwithstanding the
provisions of the act mentioned.
The reasoning in Matter of D (supra), is equally applicable here. In
the respondent's case, it may have been necessary for him to join the
Communist Party to obtain a certain benefit; namely, to retain the
particular employment in which he was then engaged. However, his
opportunities for other employment and availability of the essentials of
living were as accessible to him as a nonmember of the Communist Party
as they were to the overwhelming majority of the population of this
country. He would have been under no general disadvantage by reason of
nonmembership in the Communist Party. Accordingly, we conclude that
whatever compulsion, if any, may have induced the respondent to join the
Communist Party, was not of such a nature as to render his membership
involuntary under 8 U.S.C. 137-9. It follows, therefore, that the
respondent is not eligible for suspension of deportation under section
19(c) of the Immigration Act of 1917, as amended. Counsel also contends
that the respondent will be eligible for suspension of deportation under
section 244(a) of the Immigration and Nationality Act of 1952. We
express no opinion on that point at this time, However, we will reopen
the proceedings in order that the respondent may make whatever
application he desires for discretionary relief. In view of the action
which is being taken, we deem it unnecessary to grant counsel's request
for oral argument.
Order: It is ordered that the order of deportation dated March 26,
1951, be withdrawn.
It is further ordered that the hearing be reopened for further
proceedings in accordance with the foregoing.
It is further ordered that counsel's request for oral argument on the
motion for reconsideration be denied.
Crime involving moral turpitude -- Foreign -- Germany -- Riot accompanied by assault of an official -- Assault of official in the lawful exercise of his office.
(1) The crime of participation in riot in violation of section 115 of the German Criminal Code, accompanied by an assault of an official in the lawful exercise of his office in violation of section 113 of such code, does not involve moral turpitude, because knowledge that the person assaulted was a police officer is not necessarily an element of the offense.
EXCLUDED:
Act of 1917 -- Convicted of crime involving moral turpitude, to wit: Rioting (principal applicant).
Act of 1924 -- Not preference quota immigrants as specified in visas
(accompanying applicants).
Discussion: The applicants comprise a family group consisting of the
principal applicant, aged 26, a native of the Ukraine, his wife, aged
20, a native of Germany; and their child, aged 16 months, a native of
Germany; all citizens of the Union of Soviet Socialist Republics. They
seek admission as displaced persons under the provisions of the
Displaced Persons Act of 1948, as amended. A Board of Special Inquiry
found the applicants inadmissible on the grounds shown in the caption
and they have appealed.
The principal applicant's inadmissibility is predicated upon his
conviction by a Summary Military Court at Augsburg, Germany, on March
28, 1947, of the crime of rioting, for which he received a sentence of
60 days. The pertinent portion of the Extract of Court Record reads as
follows:
1st -- Violation of Military Government Ord. I, article II,
section 43, and the German Penal Code 360.8 (refusing to give
information to a competent official).
In that A Q , Ukrainian, did at Augsburg, on 18 March 1947
refuse to give information to a competent official concerning his
identity, to wit: The accused refused to give information to a
German policeman concerning his identity and to show his
identification papers.
2d -- Violation of Military Government Ord. I, article II,
section 43, and German Penal Code 115, section 2 (taking part in a
public riotous gathering and assaulting a German policeman in the
lawful exercise of his office).
In that A O , Ukrainian, did at Augsburg, on 18 March 1947 take
part in a public riotous gathering and use force and threats
against a German policeman in the lawful exercise of his office,
to wit: On 18 March 1947.
As will be noted, only the second charge was used as the basis for
the finding of inadmissibility. Section 115 of the Statutory Criminal
Law of Germany provides:
Whoever takes part in a public riotous gathering at which one
of the offenses mentioned in sections 113 and 114 is committed by
the gathering shall be punished for riot by imprisonment for not
less than 6 months.
The ringleaders as well as those rioters who have committed one
of the offenses specified in sections 113 and 114 shall be
punished by confinement in a penitentiary not to exceed ten years;
police surveillance may also be ordered. If there are
extenuating circumstances, imprisonment for not less than 6 months
may be imposed.
In deciding the issue presently before us for consideration it is
important to note that the male appellant was not charged with and has
not been convicted of assaulting an official engaged in the lawful
exercise of his office, a separate and distinct offense under section
113 of the German law. This appellant stands convicted only of taking
part in a public riotous gathering at which he assaulted a German
policeman while that official was engaged in the lawful exercise of his
office, an offense under section 115 of the German law. It is equally
important to note that this appellant was not convicted of an offense of
simple riot alone or of unlawful assembly since such offense falls not
within section 115 but within section 116 of the German law. There is
no offense under section 115 unless and until an offense mentioned in
section 113 or 114 is committed during the riot. The description of the
offense in the Extract of Court Record establishes that only section 113
is applicable here with regard to the offense under section 115. The
pertinent part of that section states:
Whoever, with force or threats of force, resists an official
(Beamte) whose duty is to execute the laws, orders, and decrees of
administrative authorities, or the judgmments and orders of the
courts while such official is engaged in the lawful exercise of
his office, or whoever assaults such official while he is engaged
in the lawful exercise of his office, shall be punished by
imprisonment from 14 days to 2 years.
Assordingly, while we are not called upon at this time to determine
whether on the facts here presented an offense under section 113 would
involve moral turpitude, it is believed that should such offense involve
moral turpitude, it will be a factor to be considered in determining
whether the offense of which this appellant was convicted is one
involving moral turpitude.
The Solicitor of Labor in a memorandum dated April 29, 1926,
classifying crimes generally, was of the opinion that the offense of
"rioting' might involve moral turpitude. At the same time, without
comparison except as to the offense of an "affray,' as to which offense
the distinction was noted that an "affray' differed from a "riot' in not
being premeditated, the Solicitor was of the opinion that the kindred
offenses of "affray,' "public disorder (disorderly conduct),' "breach of
the peace,' and "unlawful assembly' were not crimes involving moral
turpitude.
The offense of "riot' has commonly been defined as a tumultuous
disturbance of the peace by three or more persons assembled and acting
with a common intent either in executing a lawful private enterprise in
a violent and turbulent manner to the terror of the people, or in
executing an unlawful enterprise in a violent turbulent manner. U.S.
v. Fenwick, 25 Fed. Cas. No. 15086, 4 Cranch, C.C. 675; U.S. v.
Stewart, 27 Fed. Cas. No. 16401-a Hayw. & H. 280. The gist of the
offense is its tending to provoke a breach of the peace. "Riot'
involves the execution of an agreement, express or implied between three
or more persons to commit an assault, or battery, or a breach of the
peace, through (1) unlawful assembly; (2) intent mutually to assist
against unlawful authority and (3) act of violence. The intention which
is generally an element of the offense of "riot' is the intent to join
in, or encourage, the acts which constitute the riot; namely, the
assembly, violence, turbulence, and the act violently and turbulently
performed. The violent and turbulent enterprises of bodies of men have
uniformly been considered as dangerous to the rights of other citizens.
Since the Solicitor was of the view that the offense of "rioting'
might involve moral turpitude, it is difficult to conclude that a
statute which punishes a rioter where in the course of the riot an
official engaged in the performance of his duties is assaulted, is not
one involving moral turpitude. This appears to be especially so where
the statute in question does not punish the mere riot itself. The
conclusion that such statute is one involving moral turpitude would find
support if it is concluded that the subsidiary act of assaulting the
official, which is itself punishable under another section of the law,
is an offense involving moral turpitude. Consideration will now be
given to that aspect of the case.
It will be observed that section 113 of the German law concerns two
distinct acts which it denounces as criminal: (1) Resisting an
official; and (2) assaulting an official in the lawful exercise of his
office.
The offense of "resisting an official' under section 113 of the
German Criminal Code was under consideration by the Board of Immigration
Appeals in Matter of S , A-7476137 (September 12, 1950). In considering
whether resisting arrest involves moral turpitude, the Board of
Immigration Appeals determined that the proper test was to consider
whether resisting arrest accomplished by the least imaginable force,
involved moral turpitude. In concluding that the offense of "resisting'
under the statute in question did not involve moral turpitude, the Board
stated:
It is to be noted that section 113 of the German Criminal Code
requires no specific intent. The adult male had committed a petty
offense and the resistance offered the arresting officer by the
male appellant apparently was only a token resistance, such as an
unwillingness or a reluctance to accompany the police officer to
the police station. There is nothing in the record to show that
the arresting officer was assaulted or that he suffered any bodily
injury when he arrested the adult male appellant on December 3,
1948. He maintained his arrest. It is true that the charge sheet
filed by the arresting officer on December 8, 1948, contains the
words "by force and violence' but it is silent as to the nature or
character of the force and violence, if any. It may have been
that the resistance offered by the male appellant was passive
rather than active. That there were extenuating circumstances
surrounding the adult male appellant's arrest and conviction under
section 113 of the German Criminal Code is borne out by the fact
that he was tried in the magistrate's court and the light sentence
imposed by the senior magistrate for both offenses is further
evidence that the appellant's crime of resisting an officer in
violation of the aforementioned section of the German Criminal
Code was not considered serious. Italics supplied.
Where a statute such as the one we are now considering is broad
enough to include acts which do not involve moral turpitude, we
must hold that a violation thereof does not involve moral
turpitude although acts which may involve moral turpitude are also
covered by the statute. U.S. ex rel. Mylius v. Uhl, 210 Fed. 860.
As we have pointed out, the statute covers acts of a very minor
nature, and the force offered to an arresting officer could be
caused by the momentary reaction to the arrest rather than a
deliberate, calculated resistance to law and order. We conclude,
therefore, that the crime which the adult male appellant committed
on December 3, 1948 (violation of sec. 113, German Criminal Code)
and for which he was convicted on December 9, 1948, is not a crime
involving moral turpitude. Accordingly, the criminal ground upon
which the adult male appellant was found inadmissible is not
sustained.
The crime under consideration in the instant case concerns that
portion of the statute which comprehends the offense of assaulting an
official in the lawful exercise of his office. This offense has not
heretofore been the subject of an adjudication with regard to the
immigration laws. It is the view of this Service that the decision of
the Board of Immigration Appeals in Matter of S (supra), is not
dispositive of the issue presently before us except to the extent that
that decision warrants the inference that an assault upon an arresting
officer as disinguished from a resistance to an arrest would involve
moral turpitude in view of the sentence underscored above.
With respect to the offense of an assault committed upon a police
officer there is one court decision and several administrative
decisions. In the case of Ciambelli ex rel. Maranci v. Johnson, 12 F.(
2d) 465 (D.C. Mass. 1926), the district court held that, where a police
officer was assaulted during an affray in which several persons
participated, under the facts presented in the case before the court,
the offense was not one involving moral turpitude. In that case,
however, the Court stated:
If, on the other hand, one deliberately assaulted an officer
with a dangerous weapon and with felonious intent or for the
purpose of interfering with the officer in the performance of his
duty, the attendant circumstances showing an inclination toward
lawlessness, the act might well be considered as one involving
moral turpitude. Italics supplied.
In connection with that case, it is important to note that in the
jurisdiction in which the offense was committed there was no special
statute covering assaults upon police officers, such assaults being
chargeable under the assault section applicable to persons generally.
It is the view of this Service that a riot in the instant case
constitutes "the attendant circumstances showing an inclination toward
lawlessness' in the commission of the assault by this appellant which
under the court decision referred to constituted an act which "might
well be considered as one involving moral turpitude.'
In Matter of M , 56156/116, B.I.A. (1944) the Board of Immigration
Appeals had before it for consideration the Canadian Statute relating to
assaults upon police officers. That statute had previously been under
judicial scrutiny and the conclusion reached that a conviction
thereunder could be obtained notwithstanding that the accused did not
know that the person assaulted was a police officer. Because of such
judicial constructions the Board of Immigration Appeals concluded that
statute was not a crime involving moral turpitude. That decision was
followed in Matter of S , A-2714805, B.I.A. (1946); Matter of C ,
A-6314100, C.O. (1946); and in Matter of H , 55911/539 C.O. (1948).
On the basis of the decision of the Board of Immigration Appeals in
Matter of M , (supra), and the later cases similarly adjudicated, the
inference is warranted that had the Canadian statute required for
conviction that the accused was aware of the fact that the person
assaulted was a police officer engaged in the performance of his duties,
the offense would have been held to involve moral turpitude. If this
were not so, there would have been no need for the Board of Immigration
Appeals to discuss and to predicate its findings on the judicial holding
that the element of knowledge was not an element of the offense.
Accordingly, if the portion of the statute presently before us for
consideration likewise requires no knowledge on the part of the accused
that the person assaulted is a police officer in the performance of his
duty in order to obtain a conviction, then it must be concluded that
this statute like the Canadian statute is not one involving moral
turpitude. Conversely, if it be found that under the German law a
conviction under the statute in question may be obtained only if the
accused knows that the person assaulted is a police officer engaged in
the performance of his office, then the conclusion is warranted that the
offense is one involving moral turpitude.
In order to obtain the necessary information concerning the German
law and its interpretation in the courts of that country the Library of
Congress was requested to ascertain and advise:
whether under German law it is necessary to establish for
conviction that the defendant knew at the time of the resistance
or assault that the person assaulted was an enforcement officer
engaged in the performance of his duties or whether a conviction
can result even where the defendant had no such knowledge at the
time of the assault.
In reply to this inquiry a memorandum was prepared by members of the
Foreign Law Section of the Library of Congress L.T.O.C. which, in
pertinent part, stated as follows:
The text of section 113 does not offer a clear answer to the
inquirer's question whether or not under German law it is
necessary to establish, for conviction under this section, that
the defendant knew at the time of the resistance or assault that
his victim was an enforcement officer engaged in the performance
of his duties.
The well-known commentaries on German criminal law contain the
following comments:
1. Schonke, Strafgesetzbuch, Kommentar, 3d ed., Munich, 1947:
"Page 171. A distinction must be drawn between the factual
elements of a crime as established by statute, on the one hand,
and the conditions which form the prerequisites for punishment for
this crime, on the other. These conditions are the circumstances
making the crime punishable although they do not belong to the
definition of the crime. * * * In individual cases it is doubtful
and disputed whether a circumstance forms a factual element of the
crime or a prerequisite for its punishment; there is no general
solution to that problem, but each individual legal clause must be
analyzed. * * * It is disputed, in particular, whether in section
113 the legality of the official act is a factual element of crime
or a prerequisite for its punishment. * * *
"The differentiation is of special significance because the
intent (required for punishment) does not need to refer to
circumstances forming the prerequisite for punishment.
"Page 270. Intent is required (for punishment) as a mental
element of the crime (under sec. 113) dolus eventualis (indirect
intent) is sufficient. The perpetrator must know or take the risk
that the person in question is an officer and that the perpetrator
resists with force the performance of an official act. * * *
"The legality of the official act is not a factual element of
the crime but a prerequisite for its punishment and the intent
(required for punishment under Section 113) does not necessarily
extend to the knowledge of legality (decisions of Reichsgericht --
German Supreme Court -- in Criminal Cases, vol. 55, p. 166; vol.
60, p. 342; vol. 72, p. 301; decision reported in Deutsche
Justiz, 1942 p. 1782; Olshausen's commentary, note 12; Schwarz's
commentary, note 4 to section 113 (see infra, 4)). If, on the
contrary, many legal writers require the knowledge of the legality
of the official act, their view practically implies "an utterly
inadequate protection for the endangered enforcement officers.' *
* * The draft (for a new criminal code) prepared in 1927 followed
the decisions of the Reichsgericht and considered in its section
149, subsection 3 the legality of the official act as a
circumstance forming a prerequisite for punishment.'
2. Eduard Kohlrausch, Strafgesetzbuch, 38 ed., Berlin, Gruyter,
1944.
"Page 312. Intent. -- According to section 59 of the criminal
code /1/ a mistake on the part of the person resisting in regard
to the legality of the official act (i.e., in regard to objective
and subjective elements which would seem to determine such
legality) excludes the punishment. The Reichsgericht, however,
considered the mistake irrelevant basing its opinion on the
history and the purpose of section 113 * * *. Thereby, the
characteristics of legality of the official act have been changed
from a factual element of the crime to a circumstance forming the
prerequisite for punishment.'
4. A commentary of authority by Otto Schwarz, Strafgesetzbuch,
12th ed. Munich, 1943, comments upon section 113:
"4. Intent. -- The offender must know that the official is
acting in the exercise of his office, that means, that he is an
official, and dolus eventualis (indirect intent) suffices
(Decision on the Reichsgericht, vol. 3, p. 14.). * * * On the
contrary, the legality of the exercise of office does not
constitute a factual element of the crime as defined by the
statute, but it constitutes only a circumstance forming the
prerequisite for its punishment so that section 59 of the criminal
code is of no benefit to the offender who did not know it (that he
resisted a legal exercise of office). This was constantly held by
the courts.'
On the basis of the memorandum submitted, this Service concludes:
(1) It is not necessary in order to obtain a conviction to
establish the legality of the official act of the police officer;
that being an element which goes to the degree of the punishment
but not to the substantive nature of the offense.
(2) It is necessary in order to obtain a conviction to
establish that the offender knew that the official was acting in
the exercise of his office, that means, that he is an official,
such knowledge being a substantive element of the offense.
It thus appears that the statute under consideration differs from the
Canadian statute with respect to the knowledge on the part of the
accused as to the nature of the official being assaulted. Accordingly,
we reach the conclusion that a violation of section 113 of the Criminal
Code of Germany at least insofar as it prohibits assaults upon an
official while engaged in the lawful exercise of his office, is a crime
involving moral turpitude.
The term "crime involving moral turpitude' means an act done contrary
to justice, honesty, modesty, or good morals, which in itself is one of
baseness, vileness, and depravity in the private and social duties that
a man owes to his fellow man or to society as distinguished from an act
that is wrong merely because prohibited by law, (U.S. ex rel. Mylius v.
Uhl, 203 Fed. 152, aff'd 210, 860 (C.C.A. 2, 1913)).
The maintenance of orderly government requires on the part of each
individual an obedience to the law and to constituted authority. An
individual who engages in a riot and therein assaults a police officer
engaged in the lawful practice of his office, knowing the person to be a
police officer, appears to this Service to be engaged in an act of
wanton lawlessness which is contrary to the duties owed to society.
Accordingly, we reach the conclusion that a violation of section 115 of
the Criminal Code of Germany at least insofar as it concerns assaults
upon an official while engaged in the lawful exercise of his office, is
a crime involving moral turpitude.
The immigration visas issued to the applicants on March 14, 1950,
expired 4 months after date of their issuance and the applicants are
inadmissible on the ground that they are not in possession of valid
unexpired immigration visas. Accordingly, the applicants will be found
inadmissible on that ground, (U.S. ex rel. Jelic v. District Director of
Immigration, 106 F.(2d) 14). Since the visas of the female appellants
are no longer valid for the reason that they expired, the lesser charge
that they are not eligible displaced persons as specified in the visa of
their immigration visas need not be sustained.
Upon consideration of the entire record, the findings of fact and
conclusions of law prepared by the Board of Special Inquiry are hereby
adopted except that findings of fact (3) and (6) are amended to read:
F.F. (3) That the applicants' immigration visas issued on March
14, 1950, expired 4 months from date of issuance.
F.F. (6). That You, A O , have been convicted by a summary
military court at Augsburg, Germany, on March 28, 1947, of the
crime of taking part in a public riotous gathering and assaulting
a German policeman in the lawful exercise of his office.
and conclusion of law (2) is amended to read:
C.L. (2) That under section 13(a) of the Immigration Act of
1924 the applicants are inadmissible in that they are not in
possession of valid immigration visas and not exempted from
presentation thereof by said act or regulations made thereunder.
Order: It is ordered that the excluding decision of the Board of
Special Inquiry be affirmed.
Further order: It is further ordered that the excluding decision
with respect to the applicants, R M O and T O , be without prejudice to
reapplication within one year when in possession of appropriate
documents.
(1) Sec. 59 of the German Criminal Code deals with the effect of
mistakes in general. It reads:
"59. If a person in committing an offense did not know of the
existence of circumstances constituting the factual elements of the
offense as determined by statute or increasing the punishment, then
these circumstances may not be charged against him.
"In punishing an offense committed through negligence this provision
applies only insofar as the lack of knowledge does not in itself
constitute negligence for which the offender is responsible.'
See also the comments to this section in Gsovski, Statutory Criminal
Law of Germany with Comments, Washington, D.C. 1947, pp. 59-60.
Discussion: This case is before us on appeal from a decision of the
Acting Assistant Commissioner dated March 15, 1951, directing that the
excluding decision of the board of special inquiry be affirmed.
Appellant A O is a 27-year-old rative and citizen of the Union of
Soviet Socialist Republics. His wife, R M , who is 22 years old, and
his daughter, T , 3 years of age, are both natives of Germany and
citizens of the Union of Soviet Socialist Republics.
Appellants have applied for admission for permanent residence under
Public Law 774 (80th Cong.). Visas were issued to appellants on March
14, 1950, by the American consul at Augsburg, Germany. Appellants, A
and T , were charged to the quota of the Union of Soviet Socialist
Republics, while appellant R M was charged to the quota of Germany.
Passports were waived by the Secretary of State.
Appellant's sponsor, the Church World Service, assures the
Immigration Service that appellant A will be employed as a farmer in New
Windsor, N.J. Appellant A testified that he has had continuous
experience doing farmwork since childhood, although he has recently been
working as a shoemaker.
Appellant A stated that he was brought to Germany by the German Army
in September 1943; that he married on November 29, 1947, at Augsburg,
Germany; and that his wife and child are entirely dependent upon him
for support.
According to the record, appellant A was convicted on March 28, 1947,
by a summary military court in Augsburg of violating section 115 of the
German Penal Code. He received a sentence of 60 days' imprisonment.
The conviction record states that appellant A , a "Ukrainian, did at
Augsburg on 18 March 1947 take part in a public riotous gathering and
use force and threats against a German policeman in the lawful exercise
of his office.'
Upon being questioned about this incident, appellant A testified as
follows:
Q. By whom were you arrested and for what reason?
A. I was arrested by the German police. One day I came home
from my friends and passed through the Koenigsplatz, Augsburg,
Germany, and there were many people there and the policemen were
standing there with about 20 people. When I passed, the policeman
asked me what I wanted, and I told him I did not want anything,
that I was only passing through.
Q. Do you know why the policeman arrested you?
A. At that time I could not understand German very well; I did
not know what the policeman told me. I was rude to the policeman.
Q. I repeat the question: Why were you arrested?
A. I did not hear what the policeman told me, so I was
arrested.
* * * * * * *
Q. Did you learn in court on what charges you were being tried?
A. Yes; because I quarreled with the policeman and because I
was rude to him.
* * * * * * *
Q. If the proceedings in court were conducted in the German
language, then you have a thorough understanding of all that took
place in court. Is that correct?
A. There was an interpreter present.
Q. Why was there an interpreter if you are conversant in the
German language?
A. At that time I did not understand and speak German very
well.
The Acting Assistant Commissioner found that the crime defined by
section 115 is a crime involving moral turpitude and sustained the
appellant's exclusion under section 3 of the Immigration Act of 1917.
Section 115 of the German Code, as amended in 1945, provides as
follows:
Whoever takes part in a public riotous gathering at which one
of the offenses mentioned in sections 113 and 114 /1/ is committed
by the gathering shall be punished for riot by imprisonment for
not less than 6 months.
The ringleaders as well as those rioters who have committed one
of the offenses specified in sections 113 and 114 shall be
punished by confinement in a penitentiary not to exceed 10 years;
police surveillance may also be ordered. If there are extenuating
circumstances, imprisonment for not less than 6 months may be
imposed.
The Acting Assistant Commissioner, in reaching the conclusion
referred to in the penultimate paragraph above, refers to our decision
in Matter of S , A-7476137 (September 15, 1950), wherein we held that
the crime defined by section 113 of the German Criminal Code (supra,
footnote 1) does not involve moral turpitude. We said among other
things in the S case (supra), "There is nothing in the record to show
that the arresting officer was assaulted or that he suffered any bodily
injury when he arrested the adult male appellant on December 3, 1948. *
* * It is true that the charge sheet filed by the arresting officer on
December 8, 1948, contains the words "by force and violence' but it is
silent as to the nature or character of the force and violence, if any.
It may have been that the resistance offered by the male appellant was
passive rather than active.' It is the view of the Acting Assistant
Commissioner that the Board's decision in Matter of S is not dispositive
of the issue presented in the instant case except to the extent that our
decision warrants the inference that an assault upon an arresting
officer, as distinguished from a resistance to an arrest, would involve
moral turpitude.
We concur in the view that our decision in Matter of S (supra), is
not dispositive of the issue here presented. We also agree with the
position taken by the Acting Assistant Commissioner that if the German
statute under consideration requires no knowledge on the part of the
accused that the person assaulted was a police officer engaged in the
performance of his duties in order to obtain a conviction, then it must
be concluded that section 115 of the German Code does not define a crime
involving moral turpitude. The Acting Assistant Commissioner finds that
in order to obtain a conviction under section 115 of the German Penal
Code, it is necessary to establish "that the offender knew that the
official was acting in the exercise of his office.'
The foregoing conclusion is supported by references to a memorandum
prepared by two members of the Foreign Law Section of the Library of
Congress under date of December 12, 1950. We have carefully examined
the memorandum in question. The authors thereof have been consulted.
It is our impression that the memorandum, to say the least, presents a
conflict of authority on the subject of scienter. For example, the
commentary by Schonke, Strafgesetzbuch, Kommentar, 3d ed., Munchen,
1947, reads in part:
It is disputed, in particular, whether in Section 113 the
legality of the official act is a factual element of crime or a
prerequisite for its punishment. * * * The perpetrator must know
or take the risk that the person in question is an officer * * *.
It is our position that if the accused knew that the person assaulted
was a police officer, the element of risk would not be involved.
The commentary by Otto Schwarz, Strafgesetzbuch, 12th ed., Munich,
1943, on section 113 also appears to present a conflict. He says, on
the one hand, "The offender must know that the official is acting in the
exercise of his office * * * that he is an official.' Yet on the other
hand he says, "Section 59 /2/ of the (German) Criminal Code is of no
benefit to the offender who did not know it (that he resisted a legal
exercise of office). This was constantly held by the courts.'
Accordingly, we find on the basis of the foregoing discussion that
section 115 of the German Criminal Code may include an offense which
does not involve moral turpitude because it appears that scienter is not
necessarily an element of the statute.
The position we have taken above is supported from a practical
viewpoint by referring to the term "official' (Beamte) as used in
section 113 of the German Criminal Code. The appellant herein has been
convicted for committing an offense defined by section 113 (supra,
footnote 1) while engaged in a public demonstration. The term
"official' is defined by section 359 of the German Criminal Code. /3/
Since section 113 encompasses "all persons in the service of the Reich,'
we find it extremely doubtful that "scienter' must be proved before a
conviction will lie, because, as noted by the commentator Schonke, this
would provide "an utterly inadequate protection for the endangered
enforcement officers.'
There is another factor in the record which creates a doubt that the
offense committed by the appellant involves moral turpitude. Exhibit 1,
which purports to be an extract of the record of the appellant's
conviction in case No. 8252 before a summary military court on March 28,
1947, charges the appellant as follows: "* * * did * * * take part in a
public riotous gathering and use force and threats against a German
policeman in the lawful exercise of his office, to wit: On 18 March
1947.' It states on its face that this record is located at "HICOG,
Augsburg, Germany.'
We have been informed that exhibit 2, a document in the German
language with the title of "Bestatigung,' amounts to a certificate in
the nature of a police record issued and executed by a German civil
official of the city of Augsburg, which among other things reflects in
the German language a copy of a complaint lodged against the subject of
the certificate for which he was tried and convicted in the ordinary
military court at Augsburg on March 28, 1947. It has been brought to
our attention that the German word "Beschimpfung,' found in that portion
of the certificate which refers to the offense under consideration, does
not connote, nor can it be translated as referring to the use of any
force or the threat of the use of any force. The English equivalent,
according to the translation attached, is "insulting.' Another
equivalent, we have been informed, is "using improper language' or
"having a verbal exchange in a loud voice.'
It is apparent from the foregoing that there is a conflict between
the charges set forth in exhibits 1 and 2. Exhibit 2 supports the
appellant's version of the incident as brought out by his testimony
before the board of special inquiry (supra). Exhibit 1 is silent as to
the nature and character of the "force and threats' employed by the
appellant against the police officer. The descriptive portion of
exhibit 2 charges that appellant merely engaged in a "verbal exchange'
or "insulted a German policeman exercising his duty.' There is no
showing that force or violence accompanied the verbal exchange. The
rationale, therefore, is that section 115 of the German Penal Code, like
the related section 113, is broad enough to encompass a passive
resistance as well as one accompanied by force and violence.
There is no offense under section 115 of the German Criminal Code
(supra), unless an act set forth in either section 113 or 114 of the
code is committed during the public demonstration. The description of
the offense, both in exhibits 1 and 2, reflects that only section 113 is
applicable here. We find on the record before us that a conviction
under section 115 of the German Penal Code may be obtained
notwithstanding the fact that the accused did not know that the person
assaulted was a police officer. We also find that section 115 is broad
enough to encompass acts which do involve moral turpitude as well as
those which do not. Since the minimum requirement must serve as the
test (Mylius v. Uhl, 210 Fed. 860), we conclude that on this record the
appellant has not been convicted of a crime involving moral turpitude.
The criminal ground for exclusion is not sustained.
The Acting Assistant Commissioner, in addition to the criminal ground
of inadmissibility against the principal appellant, also finds the
appellants inadmissible because not in possession of unexpired
immigration visas. The visas were valid at the time the appellants
applied for admission to the United States. Accordingly, the
documentary grounds of inadmissibility are not sustained.
Order: It is ordered that the appeal be sustained.
(1) Section 113. Resistance to Enforcement Officers. -- Widerstand
gegen Vollstreckungsbeamte. Whoever, with force or threats of force,
resists an official (Beamte) whose duty is to execute the laws, orders,
and decrees of administrative authorities, or the judgments and orders
of the courts while such offical is engaged in the lawful exercise of
his office, or whoever assaults such an official while he is engaged in
the lawful exercise of his office, shall be punished by imprisonment
from 14 days to 2 years.
If there are extenuating circumstances, the punishment shall be
imprisonment not to exceed 1 year or a fine.
The same penalties apply if the act is perpetrated against persons
who have been called to the assistance of the officials or against
members of an armed force or against members of a municipal police or
citizen armed force in the execution of their duty.
Section 114. Coercion of Officials. -- Beamtennotigung. Whoever
undertakes by force or threats to compel a public authority or an
official to the commission or omission of an official act shall be
punished by imprisonment for not less than 3 months.
If there are extenuating circumstances the punishment shall be
imprisonment not to exceod 2 years or a fine.
(2) Section 59, entitled "Guilt and Mistake of Fact,' reads as
follows:
"If a person in committing an offense did not know of the existence
of circumstances constituting the factual elements of the offense as
determined by statute or increasing the punishment, then these
circumstances may not be charged against him.
"In punishing an offense committed through negligence this provision
applies only insofar as the lack of knowledge does not in itself
constitute negligence for which the offender is responsible.'
(3) Beamte: An official within the meaning of the criminal code
shall include all persons in the service of the Reich or in the direct
or indirect service of a land, whether for life, for a period of time,
or only temporarily without distinction as to whether they have or have
not taken oaths of office, and likewise shall include notaries but not
advocates and attorneys.
Crime involving moral turpitude -- Drawing check without credit (1940, Ohio) -- Fraudulent check (1948, Indiana).
(1) An offense under section 710-176 of the Ohio General Code (entitled, "Drawing a Check Without Credit') involves moral turpitude, since intent to defraud is an essential thereof. /*/
(2) An offense under section 10-2105 of the Indiana statutes (entitled "Fraudulent Checks') involves moral turpitude, since intent to defraud is an essential thereof. /*/
CHARGE:
Warrant: Act of -917 -- Sentenced more than once, to wit: Issuing
check against insufficient funds and issuing check without funds.
Discussion: This case is before us on appeal from a decision of the
Assistant Commissioner dated September 19, 1950, directing respondent's
deportation on the above charge.
Respondent is a 51-year-old native of Yugoslavia (formerly Austria),
probably now stateless, who last entered the United States in 1910 or
1911. He has resided in this country continuously since that time.
Respondent is married to a native-born United States citizen who is
living in Vincennes, Ind., with their four citizen children.
Respondent's testimony reveals that he deserted from the United States
Army in 1916 and has never obtained any subsequent discharge from
service.
The record shows that respondent has been convicted twice for
violations of so-called "cold check' statutes. On March 29, 1940,
respondent was charged by indictment with an offense under section
710-176 of the Ohio General Code (entitled, "Drawing a Check Without
Credit') in the Court of Common Pleas, Hamilton County, Ohio. He was
sentenced to 1 to 3 years on May 4, 1940; he was confined to the Ohio
State Prison until August 3, 1942.
On February 7, 1948, respondent was charged with violating section
10-2105 of the Indiana statutes (entitled, "Fraudulent Checks') and he
pleaded guilty in Wayne County Circuit Court, Indiana. In April 1948,
respondent was sentenced to 1 to 10 years, serving nearly a year at
Indiana State Prison.
Ohio and Indiana, like several other states, /1/ have "cold check'
statutes which are similarly worded, having been copied from the same
model. The statutes in question read as follows:
Section 710-176 (Page's Ohio General Code, 1937):
Drawing check, draft, etc., without credit; penalty. -- Any
person, who, with intent to defraud, shall make or draw or utter
or deliver any check, draft, or order for the payment of money
upon any bank or other depository, who, at the time thereof, has
insufficient funds or credit with such bank or depository, shall
be guilty of a felony, and upon conviction thereof shall be fined
not less than fifty dollars and not more than two hundred dollars,
or imprisoned in the Ohio State Penitentiary for not less than one
year nor more than three years or both.
Prima facie evidence of intent to defraud. -- As against the
maker or drawer thereof, the making, drawing, uttering, or
delivering of a check, draft or order, payment of which is refused
by the drawee, shall be prima facie evidence of intent to defraud,
and knowledge of insufficient funds in, or credit with, such bank
or other depository. The word "credit' as used herein shall be
construed to mean any contract or agreement with the bank or
depository for the payment of such check, draft, or order, when
presented.
Section 10-2105 (Burns' Indiana Statutes, 1933):
Fraudulent checks -- Act of 1927. -- Whoever with intent to
defraud by obtaining money, merchandise, property, credit, or
thing of value, although no express representation is made in
reference thereto, or who, in the payment of any obligation, shall
make, draw, utter or deliver any check, draft, or order for the
payment of money upon any bank, depository, person, firm, or
corporation, knowing at the time of such making, drawing,
uttering, or delivering that the maker or drawer has not
sufficient funds in or credit with such bank, despository, person,
firm, or corporation, for the payment of such check, draft, or
order in full upon its presentation, shall, on conviction, be
imprisoned in the State prison for not less than one (1) nor more
than ten (10) years: Provided, however, That when the money,
merchandise, property, or thing of value obtained is less than
twenty-five dollars ($25.00), the punishment shall be the same as
the punishment prescribed by law for petit larceny. The making,
drawing, uttering, or delivering of such check or draft or order
as aforesaid shall be prima facie evidence of intent to defraud.
The word "credit' as used herein shall be construed to mean an
arrangement or understanding with the bank, depository, firm, or
corporation, for the payment of such check, draft, or order (acts
1927, ch. 201, sec. 6, p. 576).
The offense defined in the "cold check' statutes belongs in general
to the family of criminal false pretenses and is a species of fraud by
false pretenses. Huffman v. State, 205 Ind. 75, 185 N.E. 131 (1933);
Hughes v. Commonwealth, 232 Ky. 232, 22 S.W.(2d) 618 (1929). The gist
of the offense in both statutes lies in the fraudulent intent and
knowledge. Union Gas & Electric Co. v. Coffman, 36 Ohio Law Rept. 201,
1931; Koenig v. State, 121 Ohio State Rept. 147 (1929); State v.
Vice, 33 Ohio opinions 544 (1946).
The statute creates a rebuttable statutory presumption of guilt,
based on prima facie evidence of intent to defraud. However, proof of
intent to defraud, according to judicial construction, is an essential
of the crime and a conviction for this offense. People v. Will, 289 N.
Y. 413, 46 N.E.(2d) 498 (1943); People v. Ledwell, 14 N.Y.S.(2d) 371
(1939); Union Gas & Electric Co. v. Coffman, (supra.)
Therefore, since the gravamen of the offense has repeatedly been held
to be the intent to defraud /2/ and moral turpitude inheres in such
criminal intent, /3/ we conclude that convictions under section 710-176,
Ohio General Code, and section 10-2105, Indiana statutes, were both
convictions for crimes involving moral turpitude. People v. Will
(supra); Seaboard Oil Co. v. Cunningham, 51 F.(2d) 321 (C.C.A. 5,
1931). The charge under section 19, act of 1917, of having been
sentenced more than once to imprisonment for periods of 1 year or more
as a result of convictions for crimes involving moral turpitude after
entry, is accordingly sustained.
When the warrant hearing was held in the present case on April 27,
1950, respondent was confined to the Indiana State Farm, Greencastle,
Ind., serving a sentence for another "cold check' violation which
occurred, according to respondent's testimony in Vanderburgh County,
Evansville, Ind., and for which he received a 6-month sentence plus a
fine of $25 and court costs.
Respondent was released to Nashville, Tenn., police authorities on
April 30, 1950, for prosecution there for similar offenses in connection
with his passing three worthless checks, totaling $800, in 1949.
In passing, we wish to comment on the applicability to the instant
case of U.S. ex rel. Portada v. Day, 16 F.(2d) 328, S.D.N.Y. (1926),
cited by the hearing examiner in his recommended decision. The Portada
case is not controlling here, for the California "cold check' statute in
issue at that time differed materially from the Ohio and Indiana
statutes now under consideration. Since the word "wilfully' was
specifically used in the California statute, there was no room for
judicial interpretation regarding the necessity of an intent to defraud
as an element of the crime; a fraudulent intent was an indispensable
element of the crime, according to the plain wording of the statute. On
the other hand, the word "wilfully' is conspicuously missing from the
Ohio and Indiana statutes now before us, leaving the courts free to
determine judicially, as they have done, that an intent to defraud is an
essential element of the crime.
For these reasons, the appeal is dismissed.
Order: It is hereby ordered that the appeal be dismissed.
(*) Editor's note. -- For parallel statutes see footnote No. 1
herein.
(1) Parallel statutes exist in the following jurisdictions:
Kentucky: Baldwin's Rev. Statutes, 1942, sec. 434.070; Commonwealth
v. Bandy, 291 Ky. 721, 165 S.W.(2d) 337; King v. Commonwealth, 203 Ky.
163, 261 S.W. 1096 (1924); Commonwealth v. Hammock, 198 Ky. 785, 250
S.W. 85 (1923).
Massachusetts: General Laws, 1933, ch. 266, sec. 37; Fuller v.
Home Indemnity Co., 318 Mass. 37, 60 N.E.(2d) 1 (1945).
Michigan: Annotated Statutes, 1935, sec. 28.326, 28.327, 28.328;
People v. Smith, 271 Mich. 553, 260 N.W. 911 (1935).
New York: McKinney's Consolidated Laws, 1944, sec. 1292a; People v.
Weiss, 263 N.Y. 537 (1933); People v. Olans, 264 N.Y. 420 (1934).
West Virginia; Annotated Code, 1949, sec. 5980; State v. McGinnis,
116 W.Va. 473, 181 S.E. 820 (1935).
(2) Anderson v. Bryson, 94 Fla. 1165, 115 So. 505 (1929); State v.
McGinnis, 116 W.Va. 473, 181 S.E. 820 (1935); Caldwell v.
Commonwealth, 221 Ky. 232, 298 S.W. 681 (1927).
(3) 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).
Nonsignatory line -- Ground of exclusion, alien brought to foreign contiguous territory by such line and resided there less than 2 years before seeking admission here for permanent residence -- Section 17 of the Immigration Act of 1924 and section 23 of the Immigration Act of 1917 -- When these statutory provisions are not applied.
An alien, brought to Canada on a United States Army transport (through the auspices of the International Refugee Organization) which vessel was one operated and under complete control of an agency of the United States, is not held excludable under the provisions of section 17 of the Immigration Act of 1924 and section 23 of the Immigration Act of 1917, as one brought to foreign contiguous territory by a nonsignatory line and who had resided there less than 2 years before seeking admission here for permanent residence.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 -- Nonsignatory line.
Act of 1917 -- Nonsignatory line.
Discussion: This case has been certified to the Board by the Service
as involving a question of difficulty, in accordance with section
90.3(b), Title 8, C.F.R.
The pertinent facts in the case are briefly as follows: J H was
brought to Canada by the United States Army Transport Leroy Eltinge
through arrangements of the International Refugee Organization, as a
displaced person. He landed at Halifax, Nova Scotia, April 23, 1949,
and was admitted to Canada as an immigrant. He was in possession of a
certificate of identity issued by the International Refugee Organization
for the purpose of immigrating to Canada.
J H is a native and citizen of Czechoslovakia, age 27, and applied
for admission to the United States for permanent residence at Detroit,
Mich., on October 31, 1950, in possession of certificate of identity
issued by the Department of External Affairs at Ottawa, Canada, valid
until August 3, 1951, for travel to the United States, and a first
preference Czechoslovakian quota immigration visa issued at Windsor,
Ontario, Canada, on October 31, 1950, valid for 4 months. He was
excluded on November 1, 1950, by a board of special inquiry and
appealed.
Mr. H testified that his intention was to remain in Canada
permanently. However, on April 29, 1950, he married a citizen of the
United States and thereafter took steps to migrate to this country.
The question of difficulty presented in this case is whether the
alien's arrival in Canada on a United States Army transport was such as
to bring him within the provisions of section 23, /1/ Immigration Act of
1917, and section 17, /2/ Immigration Act of 1924, requiring the
exclusion of persons applying for admission to the United States within
two years after arrival in contiguous territory on a nonsignatory line.
The memorandum of the Service certifying the case here contains the
following pertinent information:
A request for information from the United States Office of the
International Refugee Organization concerning the use of United
States Army Transport vessels and in particular, the use of the
U.S.A.T. General Bundy contains the following pertinent
information (letter dated June 1, 1950, signed by W. A. Wood, Jr.,
Major General, U.S. Army Retired, Chief, United States Office of
I.R.O., Central Office File 56239/100): /3/ that agreements have
been made by the I.R.O. and the Depart ment of the Army whereby
certain Army Transport vessels were and are operated on a cost
basis by the Army for the I.R.O. from monies supplied by the
I.R.O. to the Army to provide for the transportation of displaced
persons by sea. The letter contains the following further
information:
The original arrangement under which Army ships operated in I.
R.O. service was concluded between this office and the War
Department in the early part of 1947 with the support of the then
Secretary of State (General Marshall) and the Secretary of War
(Judge Patterson). Subsequently, in February 1949, this
understanding was supported and reaffirmed by Presidential
Directives to the Secretary for the Army and the Commissioner of
the United States Maritime Commission wherein the latter was
directed to transfer, on a loan basis, to the Army such surplus
vessels as might be required by the Army to meet the requirements
of I.R.O. for sea transport in United States flag ships.
The master and all regular members of the crew of the General
Bundy were employees of the Army and had full responsibility for
the technical operation of the ship. Movements of these vessels
in I.R.O. service were in accordance with instructions issued by
I.R.O. to the Army governing their ports of call in Europe and the
ports of destination wherever they might be at various locations
in the world, as well as indicating the passengers to be carried.
Control of the displaced persons passengers on these vessels was
effected by the master, as required, through the medium of an
escort officer placed on the vessel by I.R.O. who served as a
member of the master's staff aboard the vessel.
The Service expressed the view that an alien brought to foreign
contiguous territory on an Army transport under the auspices of the I.
R.O. is not subject to exclusion on the above stated sections of law and
that its reasons for such view is set forth in detail in the opinion of
general counsel of the Service in the Matter of F , VP-422709, dated May
11, 1950, approved by the Commissioner May 22, 1950. Because the
position of the Department of State on the problem is contrary to that
of the Service (and the Board of Immigration Appeals) the Service has
certified the matter for consideration. (Matter of P , Interim Decision
#57).
The Board in the Matter of P , /4/ A-6996994, March 7, 1949,
concluded as follows:
We find that his case falls within the language and phraseology
in the Matter of B , so as to justify determination that
provisions of sections 17 and 23 (supra), do not require a holding
of inadmissibility thereunder. The International Refugee
Organization, to whom the vessel in question was chartered for the
purpose of bringing displaced persons to the North American
continent, with the approval of the Department of State, is an
international governmental agency. The transportation of
appellant to contiguous territory was not by means of a commercial
transportation company or by vessel having a commercial character.
The B case, which seems to have brought some confusion in the problem
generally, was decided by the Board on January 21, 1941. B , a native
of Germany, stateless, and of the Hebrew race, applied for admission to
the United States at Montreal, Canada, on October 29, 1940, for
permanent residence. He was excluded under section 17, Immigration Act
of 1924, and section 23, Immigration Act of 1917. He was in possession
of a German quota visa issued to him in Montreal, Canada. He was
residing in England attending the University of Cambridge until May 12,
1940, when he was taken into custody by English authorities as an alien
enemy and was interned. Along with many others he was transferred to
Canada for interment, arriving there on July 13, 1940. He was brought
to Canada aboard the S.S. Ettrick of the Peninsula and Oriental Line.
It was argued that the immigration statutes mentioned applied only to
aliens who upon arrival in Canada were destined to the United States and
who traveled to Canada by a commercial transportation line; that as B
was not destined to the United States upon arrival in Canada and as he
did not travel on a commercial transportation line he was not
inadmissible under section 17, Immigration Act of 1924, and section 23,
Immigration Act of 1917. The Board rejected the first contention and
although B had not resided in Canada for 2 years it found that the
excluding provisions mentioned should not apply to this case since the
language of the statute indicated that Congress had in mind and was
concerned solely with the voluntary transportation of aliens as a
commercial transaction; that B was transported on a vessel owned by a
commercial transportation company which was chartered by the British
Government for the purpose of removing war prisoners and internees from
England to Canada, and that B had no choice in deciding whether he was
to leave England and come to Canada. The Board pointed out that in no
manner was the ship which brought B to Canada required to comply with
the provisions of the statutes in question. The Board sustained B 's
appeal and authorized his admission. However, on February 5, 1941, the
then Attorney General reversed the Board with the proviso, however, that
if B subsequently were restored to his freedom and shall then make
regular and proper application for admission to this country it shall be
considered without prejudice. The Attorney General indicated that he
agreed with the Board that the circumstances of B 's being brought to
Canada on a ship operated by the Government of Great Britain rather than
on a ship or a private line was a circumstance not contemplated by
Congress and not necessarily excluding B , but found that there were
other facts which could not justify a disregard of the statute in order
to permit B 's admission to the United States. It was pointed out that
B was an internee and was brought to Canada for safekeeping and since he
was still under restraints by Great Britain his admission could not be
authorized under the law.
It seems that on June 2, 1942, the Attorney General answered a letter
from the Acting Secretary of State dated March 31, 1942, requesting
reconsideration of Attorney General Jackson's opinion of October 29,
1940, holding H B inadmissible to the United States. The reply
indicated that there was no basis for disturbing the opinion mentioned
but agreed with the legal adviser of the State Department that to hold
the statute inapplicable to aliens brought to foreign contiguous
territory by vessels operated by foreign governments would tend to
defeat these purposes. He also agreed with the legal adviser that B was
not exempt from the statutes in question by reason of his having been
brought to Canada against his will since the statute made no distinction
between a voluntary and involuntary bringing. /5/
Thus, while the Service is now in agreement with the Board in the
conclusion reached in the P case the fact remains that the Department of
State, through Visa Circular No. 128, dated November 15, 1949, has ruled
that aliens brought to Canada by the I.R.O. on vessels owned by the
United States Army who have resided in that country less than 2 years
are inadmissible to the United States. (See opinion of general counsel,
Immigration and Naturalization Service, dated May 11, 1950.)
In the F opinion the general counsel of the Immigration and
Naturalization Service found that while it would appear that the I.R.O.
has broad enough powers in its constitution to engage in the business of
transportation, so that it could be considered a "transportation line'
or a "transportation company' within the meaning of the immigration
statutes mentioned, it has never in fact operated as a transportation
line or company; that on the assumption that the vessel which brought F
to Canada was a United States Army transport through arrangements with
the I.R.O., the conclusion was reached that Mrs. F would be admissible
to the United States notwithstanding the provisions of the immigration
law in question.
The factual situation in the B case is different from that which
obtained in the P case and which obtains in the H case now before us.
In the B case, B was brought to Canada on a ship operated by Great
Britain and he was brought to Canada as an internee. While the then
Attorney General held that B would be held inadmissible under the
immigration statutes in question so long as he remained in status quo;
namely, as an internee, a subsequent observation was made that to hold
the statutes (sec. 17, Immigration Act of 1924, and sec. 23, Immigration
Act of 1917) inapplicable to aliens brought to foreign contiguous
territory by vessels operated by foreign governments would tend to
defeat these purposes. This observation was indicated in the letter
addressed to the Secretary of State on June 2, 1942. While the
observation was not a formal opinion, we see no conflict in the B
holding by the Attorney General and the holding by the Board in the P
case. Nor for that matter does the B case create any obstacle to a
conclusion in the case now before us similar to that reached in the P
case.
In the case of J H , now before us, it is established that the alien
was brought to Canada on a United States Army transport through the
suspices of the I.R.O.; that the use of the Army transports by the I.R.
O. is pursuant to an understanding whereby such ships have been so
allocated and that the Army supplied the vessels and crews which are
under the constant supervision of the Army and that the I.R.O. merely
supplies the displaced person to be transported and pays for the voyage
on a cost basis. /6/
It is quite clear that the vessel which brought H to Canada was one
operated and under complete control of an agency of the United States;
namely, the Department of the Army, and as such could not be held
amenable to any of the penalties of the immigration laws. Nor, it
follows, is there any basis upon which the application of section 17,
Immigration Act of 1924, and section 23, Immigration Act of 1917, could
be predicated.
Order: It is ordered that the appeal be sustained and the alien be
admitted to the United States for permanent residence upon presentation
of required documents.
For the reasons indicated above, this case is certified to the
Attorney General for review of the Board's decision in accordance with
section 90.12, title 8, Code of Federal Regulations.
(1) Sec. 23, Immigration Act of 1917, insofar as it is applicable
here, provides:
"That the Commissioner of Immigration and Naturalization * * * shall
prescribe rules for the entry and inspection of aliens coming to the
United States from or through Canada and Mexico * * * and shall have
power to enter into contracts with transportation lines for the said
purpose * * * Provided further, that in prescribing rules and making
contracts for the entry and inspection of aliens applying for admission
from or through foreign contiguous territory, due care shall be
exercised to avoid any discriminatory action in favor of foreign
transportation companies transporting to such territory aliens destined
to the United States, and all such transportation companies shall be
required, as a condition precedent to the inspection or examination
under such rules and contracts at the ports of such contiguous territory
of aliens brought thereto by them, to submit to and comply with all the
requirements of this act which would apply were they bringing such
aliens directly to seaports of the United States, and, from and after
the taking effect of this act, no alien applying for admission from
foreign contiguous territory shall be permitted to enter the United
States unless upon proving that he was brought to such territory by a
transportation company which had submitted to and complied with all the
requirements of this act, or that he entered, or has resided in, such
territory more than 2 years prior to the date of his application for
admission to the United States.'
(2) Sec. 17 of the Immigration Act of 1924, except for minor changes
immaterial here, repeats verbatim the language of sec. 23 of the 1917
act.
(3) The letter contains the information that all United States Army
Transports have now been placed under the operational control of the
Navy Department and are known as U.S. Naval Ships.
(4) P , a native and citizen of Poland, landed at Halifax, Nova
Scotia, on June 15, 1948, one of a group of 650 tailors brought to
Canada as a displaced person by the I.R.O. He proceeded to Toronto and
was examined by a Board of Special Inquiry to determine his
admissibility to the United States for permanent residence. The vessel
upon which he arrived in Halifax, the S.S. General William Black was a
United States Army transport which was under charter to the I.R.O., its
mission being to bring displaced persons to the North American
continent, arrangements having been approved by the Department of State.
P originally intended to remain in Canada but married a United States
citizen and as she refused to reside in Canada, P sought entry to the
United States in possession of required documents.
(5) On November 15, 1949, the Department of State issued Visa
Circular No. 128, as follows:
"Subject: Application of section 23 of the Immigration Act of
February 5, 1917, as amended, and section 17 of the Immigration Act of
1924, as amended, to Aliens Brought to Canada by the International
Refugee Organization.
"1. Purpose. -- This circular sets forth the authority for the
application of the above sections of the Immigration Acts of 1917 and
1924 to aliens brought to Canada by the IRO.
"2. Background. -- The Department has received inquiries in several
cases as to whether aliens brought to Canada by the IRO on vessels owned
by the United States Army who have resided in that country less than two
years are admissible in view of section 23 of the Immigration Act of
1924.
"3. Finding. -- It has been determined that aliens arriving in the
manner described above are regarded as arriving on nonsignatory vessels
and may not be permitted to enter the United States unless they have
resided in such territory for more than two years prior to the date of
their application for admission to the United States.
"4. Authority. -- Section 23 of the Immigration Act of 1917 (39 Stat.
874, 892), section 17 of the Immigration Act of 1924 (43 Stat. 153,
163), Opinion of Attorney General Biddle in the case of H B (letter of
June 2, 1942).
"5. Distribution. -- This circular is being distributed to all
Foreign Service offices in Canada.
NOTE. -- Paragraph 4 of the circular under "Authority' cities the
Attorney General's letter of June 2, 1942.'
(6) The personal factors in P and H cases are substantially the same.
Each intended to remain in Canada. Each was brought to Canada under
similar circumstances. In the H case the transportation medium is
clearer; namely, that the vessel was owned and operated by the United
States Government through the Department of the Army. While the same
may have been true in the case of P , the point was not fully developed
in the record.
The decision and order of the Board of Immigration Appeals dated
March 6, 1951, are hereby approved.
Editor's note. -- Interim Decision #57 has been considered in the
above decision, and the letter of Attorney General Biddle dated June 2,
1942, to the State Department in the case of H B has been discussed,
too. The legal adviser of the State Department has been advised by the
Deputy Attorney General of the conclusion reached in the above decision
and it was suggested that State Department Visa Circular No. 128 be
revoked or appropriately revised. Accordingly, the Important Notice
dated January 17, 1950, in re Interim Decision #57 will be disregarded.
The observations of Attorney General Biddle in the above letter of June
2, 1942, as to vessels operated by foreign governments were noted in
this Board's decision in two places and in view thereof the question as
to "foreign government vessels' is considered open.
Nonimmigrant status -- Domestic servant -- Section 3(2) of the act of May 26, 1924 -- 22 C.F.R. 61.136.
An alien, coming to work here temporarily as a domestic servant for a prospective employer temporarily here, is not admissible as a nonimmigrant under the provisions of Sec. 3(2) of the Act of May 26, 1924 and 22 C.F.R. 61.136 under the circumstances in this case merely because she had previously worked for such employer abroad, inasmuch as her prospective employer had preceded her to this country by a period of six months during which period she was employed abroad by another employer.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 -- No visa.
Discussion: This record relates to a 22-year-old single female,
native and citizen of Columbia who arrived at Miami, Fla., on January
10, 1951, by plane and applied for temporary admission as a visitor for
a period of 6 months. She was found inadmissible on the ground stated
above and excluded. She has appealed.
The appellant has presented a Colombian passport valid to December
16, 1952, also nonimmigrant visitor's visa issued January 9, 1951,
pursuant to section 3(2) of the act of May 26, 1924. At the time of
arrival she was unaccompanied. She testified however that she was
destined to M P V , Miami, Fla., where she intended to work and take
care of the children for her employer for a period of 6 months.
The question under consideration is whether this appellant is
admissible as a nonimmigrant visitor, domestic servant, within the
provisions and interpretations of 22 C.F.R. 61.136, which reads as
follows:
(a) Passport visas may be granted to the following classes of
aliens seeking to enter the United States temporarily for
employment, provided they are able to qualify as bona-fide
nonimmigrant temporary visitors within the meaning of section 3(
2) of the act:
(1) An alien domestic servant accompanying his American or
alien employer, who is proceeding to the United States on a
temporary visit, provided it is established that he will depart
from the United States with or before his employer. * * *
The appellant testified that she was employed by the family to which
she is now destined for a period of two years until they left for the
United States in July 1950. She added that she wished to come with them
at that time but that her parents would not grant their consent. It is
not entirely clear whether the employers would have taken her along with
them at that time because the testimony of the woman to whom she is now
destined is to the effect that they were uncertain. When that employer
was asked when she first decided to bring the girl to the United States
to work for her she stated "when we came we were thinking about it, and
now when my husband went back he made the arrangements.' She was
subsequently asked:
Q. Was it your intention and that of your husband to bring A G
G with you to the United States when you came last year?
A. We wanted very much at that time bring her, but we couldn't
for two reasons: We didn't know whether we were going to stay
here in the United States or if we were going to Canada, and we
couldn't get permission from her parents at that time.
We do not believe that this is the only feature in the case meriting
discussion. The appellant testified that during the 6 months that the
family to which she is now destined were in the United States, she was
employed by another family in Colombia and that she was living in the
household of that employer. It therefore does not appear that she is
even destined to an individual who was her employer immediately
preceding her arrival, but rather a person who was her employer some
time in the past. Under these circumstances we believe that the
appellant is an immigrant inasmuch as she is coming to the United States
to engage in employment for hire and is excludable as one not in
possession of an immigration visa. This is not overcome by the fact
that her proposed employer is an alien temporary visitor who intends to
depart in July 1951 and who has agreed to take the appellant back with
her should she be admitted.
We believe that it is pertinent at this time to distinguish this case
from Matter of L , A-6911818 (C.O. July 22, 1948), in which 22 C. F.R.
61.136 was interpreted to encompass a situation where the alien employee
did not accompany the employer but arrived 1 day later. In that case
there was no break in the continuity of employ ment, there was no
employment by any other employer, the applicant arrived the day
following the arrival of her employers and did not accompany them merely
because she did not have her immigration documents at the time her
employers left Cuba the previous day. In that case and under those
circumstances, it was held that the applicant met the requirements of
the regulation set forth above. In the instant case the situation is
tantamount to a new contract of employment subsequent to the entry of
the prospective employer into the United States.
Upon consideration of the entire record, the findings of fact, and
conclusions of law of the board of special inquiry are hereby adopted.
Order: It is ordered that the excluding decision be affirmed without
prejudice to reapplication within one year when the alien is in
possession of appropriate documents.
Upon consideration of the entire record: It is ordered that the
appeal from the decision of the Commissioner be and the same is hereby
dismissed.
Racial eligibility for naturalization -- Section 303 of the Nationality Act of 1940, as amended -- Test of eligibility as a white person. Kalmuks of southeastern European Russia are members of the white or so-called European race, in spite of their Asiatic origin. (See 4, I. & N. Dec. 104).
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 -- Racially ineligible to naturalization in the United States (husband and wife).
Act of 1917 -- Physically defective (husband).
Act of 1948 -- Not an eligible displaced person (wife).
Discussion: This case is before us on appeal from a decision of the
Assistant Commissioner dated November 2, 1950, directing that the
excluding decision of the board of special inquiry be affirmed. It was
determined at that time that appellants, whose blood was found to be
predominantly that of the Kalmuk /1/ race were ineligible to
naturalization, because Kalmuks are not members of the white race (sec.
303, Nationality Act of 1940; sec. 3, act of 1917; secs. 13(c) and
28(c), act of 1924).
Appellant D R , a 58-year-old native of Russia, now stateless, was
born in St. Potavoskaja, about 200 kilometers east of Rostov on the Don
River. /2/ Appellant S R , a 57-year-old native of Russia, also
stateless, was born at St. Vlasovskaja in the Rostov-Don River area.
/2/
Appellants fled from Russia about 1920, after resisting the communist
revolutionary forces; appellant D R had served in the cavalry forces of
the Tsar. Appellant D R 's first wife and two children died of
starvation in Russia in 1922, while appellant S R 's first husband was
shot by the revolutionaries in 1918. Appellants were married in Sofia,
Bulgaria, in 1922, according to the Buddhist rite, which is their
religion. Thereafter, they lived in Belgrade, Yugoslavia, where
appellant D R was employed as a teacher and also had a shop from 1936 to
1943. In April 1943, they were brought to Lentzing, Germany, to work in
a paper factory until May 1945. From 1945 to 1948 appellant D R served
as a tutor in the Schleissheim displaced persons' camp, near Munich, but
has been unemployed since that time.
Appellants were issued Soviet quota immigration visas under section
6(b) of Public Law 774 (80th Cong., act of June 25, 1948) by the
American consulate at Munich on April 27, 1950. Appellants' sponsor in
Louisville, Ky., has given assurance that appellant D R will be employed
as a tutor of foreign languages.
The Assistant Commissioner concluded, after consulting such sources
as the Dictionary of Races and Peoples, /3/ the Encyclopedia Brittanica,
and our recent decision in Matter of S , A-7377747 (July 12, 1950), Int.
Dec. No. 282, that, as Kalmuks, appellants were ineligible to
naturalization, for the Kalmuks are not white people. The other grounds
for exclusion, enumerated above, were also sustained.
Counsel contends that appellants have a predominance of white blood,
but, in the event appellants are found to be mainly of a Kalmuk racial
strain, that appellants are not thereby rendered ineligible to
citizenship. Counsel avers that the Kalmuk ethnic group has been
identified with European people by several generations of affinity,
education, cultural activity, and 33 years of Soviet rule in Russia and
is therefore, a member of the white race.
According to the record, appellant, D R , may be less than one-half
Kalmuk /4/ and eligible for naturalization under section 303 of the
Nationality Act of 1940, but actual documentary proof of racial
background is not readily available.
Hence, since a finding of racial eligibility of members of the Kalmuk
race for naturalization is absolutely essential to the admission of
appellant S R /5/ and is reasonably material in appellant D R 's case,
we will now consider this question.
During the opening years of the 17th century, a small group of
Kalmuks migrated from their original habitat in central Asia /6/ to
southeastern European Russia. They ultimately settled in that portion
of Russia which lies between the mouth of the Don River and the mouth of
the Volga River. /7/ About the middle of the 17th century, this group
of Kalmuks took an oath of allegiance to the Tsar, submitted to Russian
rule, and thereafter served as the official protectors of the
southeastern borders of European Russia from infringement by warring
tribes. (See appendix.) Although the Kalmuks were considered to be a
seminomadic in their habits prior to the 1917 revolution, they have
settled on land and carried on their occupation of herding on collective
farms under the Soviet rule. They have also been taught how to speak
and read the Russian language. Fate of Minorities under Soviet Rule,
Department of State, Soviet Affairs Notes, No. 91, December 28, 1949.
Appellants, in the present case, testified that their families had
been landowners prior to the revolution; that they spoke Russian, while
they knew very little of the Kalmuk language. Thus, it would seem that
the Kalmuks, after residing in European Russia for 300 years, have
become partially integrated /8/ with the other ethnic groups of Russia.
/9/
Section 303 requires that the applicant for naturalization be of
preponderantly white blood. We stated in Matter of S (supra), that:
The test of eligibility for naturalization under section 303,
Nationality Act of 1940 (8 U.S.C. 703) as a "white person' is not
the origin of the applicant's racial strain, but rather the racial
composition evaluated at the present time. (United States v.
Thind, 261 U.S. 204 (1923)).
Applying this test, S , a European Tartar, was found to be a member
of the white race and eligible for naturalization. In recent years, the
courts have concluded that such racial groups as the Afghans, Arabs,
Armenians, and Syrians are also eligible to naturalization under section
303. /10/
Upon consideration of the above-mentioned precedents, we conclude
that the Kalmuks of southeastern European Russia are members of the
white or so-called European race, in spite of their Asiatic origin.
Therefore, the charge that appellants are racially ineligible to
citizenship is not sustained.
In addition, appellant D R was excluded as a person afflicted with a
physical defect which will affect his ability to earn a living (sec. 3,
act of 1917). The Public Health Service found appellant to be a class
B, physically defective person, on the basis of being afflicted with
hypertensive cardiovascular disease and high blood pressure (220/135).
The Public Health Service certificate of December 20, 1944, listed
appellant as 80 percent disabled for normal physical activities, with
this condition progressive. A certificate of examination issued July
31, 1950, terms the disability as chronic, but that appellant is only 50
percent disabled for normal physical activities.
Counsel for appellant has pointed out that appellant plans to work as
a foreign-language tutor in this country, which is not a physically
taxing position, and that his sponsor is well aware of his condition.
While appellant will not be employed doing manual labor, still we feel
that appellant's physical condition is of a type which will affect his
activity in any type of work and might impair his ability to earn his
living as a tutor. The charge is sustained, but appellant's admission
will be authorized under section 21, act of 1917, if an appropriate bond
can be furnished.
Appellants must, of course, have valid immigration visas when
embarking for this country, but replacement visas may be obtained for
appellants' visas, which have expired during the course of the present
administrative inquiry, (Matter of V , A-7366161 and A-7394626 (July 6,
1950)).
Order: It is hereby ordered that the appeal of D R be sustained,
provided a $1,000 public charge bond is posted and a replacement visa is
obtained.
It is further ordered that the appeal of S R be sustained, provided
that a replacement visa is obtained.
(1) Also called Kalmucks, Kalmyks, or Calmucks.
(2) St. Potavoskaja and St. Vlasovskaja are situated within the
administrative subdivision of Rostov, of which Rostov-on-the-Don is the
administrative center. St. Potavoskaja (47 19 N., 43 18 E.) and St.
Vlasovskaja (47 13 N., 42 20 E.) are about midway between Rostov and the
Sea of Azov on the west and Astrakhan and the Caspian Sea on the east,
in that area of eastern European Russia which lies north of the Caucasus
Mountains.
(3) It is well to note that this work was published in 1911 as S.
Loc. 662, 61st Cong., 3d sess., and the status of Russian ethnic groups
has been in a state of dux during the past few years.
(4) The Assistant Commissioner found that appellant, D R , was 75
percent Kalmuk and 25 percent white; we feel that the record shows that
appellant is one-half Russian (both grandmothers were Russian) and less
than one-half Kalmuk (his paternal grandfather had a trace of Armenian
blood).
(5) Since both S R 's grandmothers were Russian and her grandfathers
were Kalmuk, we agree with the Assistant Commissioner that he is
apparently 50 percent Kalmuk and 50 percent Russian.
(6) The original homeland of the Kalmuks was in the area of central
Asia bounded by the Great Altai Mountains on the north, the Gobi Desert
on the east, the Tien Shan Mountains on the south, and Lake Balkash on
the west. From this area, the Kalmuk tribes migrated east and south
into China; north and west into the adjoining steppe regions of Asiatic
Russia. A small portion of this latter group continued west into the
European continent; this branch of the Kalmuk race is our chief concern
in the present case.
(7) The Don River flows into the Sea of Azov, and ultimately into the
Black Sea, near Rostov-on-the-Don in the U.S.S.R. oblast (province) of
Rostov, while the Volga River meets the Caspian Sea in the vicinity of
Astrakhan in the Astrakhan oblast. The area in which the Kalmuks were
known to reside, prior to World War II, lay slightly east of
Rostov-on-the-Don, in the area roughly bounded by Stalingrad, Stravropol
(in Kabardinskaya oblast), and Astrakhan. (CIA map 10443, 1948; CIA
map 11162.12, 1949). For many years, the traditional Kalmuk center in
this region was the city of Elista in the Astrakhan oblast.
(8) In Matter of S (supra), we held that the Tartars of European
Russia (closely related geographically, ethnically and historically to
the Kalmuks, -- see appendix) were members of the white or so-called
European race. In reaching that conclusion, we stated that:
"Although the Tartars were originally considered Asiatic barbarians
of the Mongolian variety, the majority of Tartars have for several
centuries lived in eastern (European) Russia, have become civilized and
partially absorbed or assimilated by association and intermarriage. * *
* The Tartar group has become absorbed into the mass of eastern Russian
peoples and more or less Europeanized in blood and custom, even though
the racial traces are still discernible. The Soviet rule during the
past thirty-three years has probably hastened the process of
integration, since the Soviet government requires all communities to
speak Russian, in addition to their own traditional language.' Emphasis
supplied.
(9) Great Russians, Belorussians (White Russians), Ukrainians,
Tartars, Ossetians, Nogaytsys, Armenians, Georgians, Bashkirs, Kirgiz --
Kazkas, and Dagestans, to mention a few of the many racial groups in
Russia.
(10) See note 2, Matter of S (supra).
The Kalmuks of southeastern European Russia were a tribe of Mongolian
stock, originally nomadic in character, tormented by perpetual poverty
and numbering less than an estimated 135,000 people in 1939. After the
Bolshevik Revolution of 1917, the Soviet Government sought the support
and loyalty of the downtrodden Kalmuks by decreeing that the area of the
Kalmuk steppes and adjoining territory should be the property of the
Kalmuk people in perpetuum and also granting the Kalmuks a measure of
administrative autonomy within the Soviet framework, first as an
autonomous oblast (province) and later as an autonomous republic. Fate
of Minorities under Soviet Rule (supra).
However, on February 11, 1943, the Soviet Politbureau and the State
Committee of Defense, in joint conference, determined that the Kalmuks
should be displaced and deported, because they opposed the oppressive
Soviet regime and, hence, were considered wanting in loyalty, dangerous
to the State. This order was actually executed on February 22, 1944
(Red Army Day), when without warning and at gun-point, the Kalmuk
population was herded into unheated railroad cars. Since they were sent
on their journey in locked cars, without benefit of food or water, many
died en route, while the rest were scattered in various spots of the
Soviet Union. This action, by which the helpless Kalmuk minority group
was forced to migrate east, was ratified, or legalized in retrospect, by
Soviet government decree in 1946. Col. G. A. Tokaev, The Moscow
Conspiracy ("Murder of a Nation'), chapter IV, chapter VI.
It will be noted that historical accounts of the Kalmuk race mention
the Kalmuk migration of 1771. The Kalmuk tribe involved in that
ill-fated trek eastward toward China lived on the east bank of the Volga
River in Asiatic Russia. This group is distinct from the Kalmuks of
southeastern European Russia, for they stayed aloof from the neighboring
Russian and non-Russian tribes. Their flight was motivated by fear of
Russian Tsarist influence and domination.
Encyclopedia Americana, v. 16, p. 285.
Encyclopedia Brittanica, v. 2, p. 574; v. 12; v. 13, p. 246; v.
15, p. 719.
Dictionary of Races or Peoples, Washington, 1911 (S. Doc. 662, 61st
Cong., 3d sess.).
New International Encyclopedia, v. 13, p. 80; v. 20, pp. 171, 238.
DeQuincey, Revolt of the Tartars (Flight of the Kalmuck Khan), N.Y.,
1895.
Hammerton, Universal World History, N.Y., 1937, v. 2, 4, 5, 6, 8, 10.
Hammerton and Barnes, Illustrated World History, N.Y., 1928.
Hayes and Moon, Ancient and Modern History, N.Y., 1933.
Howorth, History of the Mongols, London, 1876, 4 parts, 5 volumes;
"The Kalmuks,' pt. I, ch. 9-12.
Rose, Development of the European Nations (1870-1900), London, 1905.
Schapiro, Modern and Contemporary European History, Cambridge, 1942.
Segal, Concise History of Russia, London, 1944.
Rawlinson, Ancient History, London, 1869.
Turner, Europe Since 1789, N.Y., 1924.
(C. S. Hammond & Co., publisher) The Historical Atlas, N.Y., 1937.
Shepherd, Historical Atlas, N.Y., 1926.
Maps: Caucasia and neighboring territories, U.S. Army Map Service,
113664, Nov. 1942 (copied from No. 4327, 1942, published by Geographical
Section, British General Staff).
Europe and the Near East, National Geographic Magazine, 1943.
European USSR Ethnic Groups (before 1939), CIA 10443, 5-48.
USSR, CIA 11043, 6-49.
USSR, CIA 11162.12, 2-49.
USSR Ethnic Composition, CIA 11240, 7-49.
Discussion: The record relates to a 58-year-old male (principal
applicant) and his 56-year-old wife, natives of Russia, presently
stateless, who applied for admission into the United States for
permanent residence at Munich, Germany, and were examined by a board of
special inquiry at that place in order that their admissibility pursuant
to the Displaced Persons Act of 1948, as amended, might be determined.
At the conclusion of the hearing on August 9, 1950, they were found
inadmissible by such board and have appealed from such decision. On
November 2, 1950, the excluding decision of the board of special inquiry
was affirmed by this Service on February 16, 1951, their appeal to the
Board of Immigration Appeals was sustained.
The point at issue is whether the aliens have established that they
have a preponderance of the blood of white persons so as to be racially
eligible to citizenship in accordance with the provisions of section 303
of the Nationality Act of 1940. This Service has concluded that they
have failed to establish their eligibility to citizenship, inasmuch as
they have a preponderance of the blood of the Kalmuk race which is not
considered as white. The Board of Immigration Appeals on the other hand
concluded that members of the Kalmuk race were members of the white race
and consequently the aliens had established their eligibility to
citizenship.
It is agreed that the Kalmuks are a race of the Mongolian group and
that the ancestors of the aliens came from a small group of Kalmuks who
migrated in the opening years of the 17th century from the original
habitat in central Asia to southeastern European Russia, ultimately
settling in that portion of Russia which lies between the mouth of the
Don River and the mouth of the Volga River. In this latter region, the
aliens were born. It was concluded by the Board of Immigration Appeals
that this group of Kalmuks, after residing in European Russia for a
little over 300 years have become partially integrated with the other
ethnic groups in Russia, which process of integration has been hastened
during the past 33 years of Soviet rule.
It is well settled that the test of eligibility for citizenship under
section 303 of the Nationality Act of 1940 as to "a white person' is the
racial composition evaluated at the present time, as set forth in the
case of U.S. v. Thind, 261 U.S. 204 (1923). In that decision it was
further stated "The question for determination is * * * whether we can
satisfy the common understanding that they are now the same or
sufficiently the same to justify the interpreters of a statute --
written in the words of common speech, for common understanding by
unscientific man -- in classifying them in the statutory category as
white persons.'
The Kalmuks have only been settled in European Russia for a little
over 300 years, a comparatively short time in the history of western
civilization. As set forth in the Dictionary of Races or Peoples (S.
Doc. 662, 61st Cong., 3d sess., p. 86), compiled in 1911, the Kalmuks
are a race or people belonging to the Mongolian group who are not
related in language so closely to the Tartars as to the Mongols of
Northern China and in appearance and culture are more Asiatic than the
Tartars. While it is true that 33 years of Soviet rule may have
hastened the process of integration, it does not follow that the
characteristics of this group, as set forth in a compilation made in
1911, have been materially altered in such short space of time. The
Board of Immigration Appeals appears to have based their decision on the
ruling made in the case of S , A-7377747 (July 12, 1950), wherein it was
held that Tartars of European Russia are members of the white race.
However, there is a substantial difference between that group and the
one presently under consideration. The Tartars are members of the
Tartaric group whereas the Kalmuks are of the Mongolian group. The
Kalmuks are more closely related in language to the Mongols of northern
China rather than to the Tartars; they are more Asiatic than the
Tartars in appearance and culture and the settlement of the Kalmuks in
European Russia was in sufficiently recent time for them to still retain
much of their original speech and culture.
In the light of the foregoing and the discussion presented in the
order of this Service of November 2, 1950, as to this phase, it is
believed that the order of the Board of Immigration Appeals is contrary
to the intent of Congress and the language of the statute involved.
Motion is hereby made that the Board of Immigration Appeals consider
and withdraw its order of February 16, 1951, and that it enter an order
dismissing the aliens' appeal from the order of this Service dated
November 2, 1950. This Service desires representation before the Board.
It is further moved that, in the event the Board of Immigration
Appeals does not grant the foregoing motion, it certify the case to the
Attorney General for review pursuant to the provisions of 8 C.F.R.
90.12(c).
Discussion: This case is before us on motion of the Acting
Commissioner, dated March 16, 1951, requesting reconsideration and
withdrawal of our order of February 16, 1951, or, in the alternative,
referral of the case to the Attorney General for review is requested.
The facts, the grounds for inadmissibility, and the administrative
action taken below is discussed adequately in our order of February 16,
1951. At that time, we held that appellants were not inadmissible as
persons racially ineligible to naturalization, because the Kalmuks of
southeastern European Russia are members of the white race. The
Service's motion asking for reconsideration is based on the contention
that Kalmuks are of the Mongolian race, rather than of the white race.
The Immigration Service suggested during oral argument that, if the
words of the courts (in holding the Arabs, Armenians, and Syrians
eligible for naturalization) and of this Board (relating to the status
of the Afghans) are applied to the Kalmuks the result would be a finding
of their racial ineligibility to citizenship. We cannot agree with this
conclusion, for we believe that the authorities enumerated in footnote 2
of Matter of S (A-7377747, July 12, 1950; 19 L.W. 2069), substantiate
our finding of eligibility. The Kalmuk tribe in question is a racial
group which inhabits a part of Europe. Members of this tribe are thus
in a better position to contend that they are "white persons' than the
Afghans, Armenians, Syrians, and non-European Arabs, who have been held
eligible to naturalization. Ex parte Mohriez, 54 F. Supp. 941 (Mass.,
1944).
As we have pointed out previously, /1/ the criterion of racial
eligibility for naturalization under section 303 of the Nationality Act
is the test formulated by the Supreme Court in U.S. v. Thind, 261 U.S.
204 (1923). /2/ The term "white person,' as commonly understood, has
been held to include all races living in Europe, even though some of the
southern and eastern European races included are technically classified
as Mongolian or Tartaric in origin.
Also included in this statutory class are some Asiatics whose long
association with European nations (occasioned by their proximity to the
European borders) and cultural assimilation have caused them to be
considered as persons of the same general characteristics. (Wadia v.
United States, 101 F.(2d) 7 (C.C.A. 2, 1939); U.S. v. Cartozian, 6 F.(
2d) 919 (D. Oregon, 1925); In re Charr, 273 Fed. 207 W. D. Mo., 1921);
Re Young, 198 Fed. 715 (W. D. Wash., 1912)).
In the motion now before us the Immigration Service disputes our
evaluation of the racial composition of the Kalmuks (see pt. II of the
appendix to our decision of February 16, 1951, and affirms their
reliance on the definition of the Kalmuk people in the Dictionary of
Races or Peoples. /3/ It is well to note that this definition of the
Kalmuk race is a comparative one, rather than an absolute one on which
complete reliance may be placed; only from the sum total of all
necessary, reliable facts and related comparisons can an absolute
definition be reached. Furthermore, as we mentioned in our prior
memorandum, the fact that the dictionary was published in 1911 must not
be overlooked, since much research has been done in the field of
ethnology during the past four decades. Various references to the
Kalmuks in the dictionary serve to substantiate our conclusion, obtained
from other sources, that the western (Dorboth) tribe of Kalmuks, of
which appellants are descendants, have become more or less Europeanized
(Cf. Id., p. 146). It is also stated that the Kalmuks are considered as
closely related to the Magyars, Huns, and Tartars of Europe (Id., pp.
92, 98, 140).
It is felt that more recent sources should not be ignored in arriving
at a valid conclusion, since these contemporary studies of races ought
to be more reliable. Fate of Minorities under Soviet Rule, Department
of State, Soviet Affairs Notes, No. 91, December 28, 1949; Voluntary
and Involuntary Soviet Migrations, Department of State, DRE information,
Note No. EER-51, June 30, 1949; The Moscow Conspiracy ("Murder of a
Nation') by Col. G. A. Tokaev, 1950; European USSR Ethnic Groups
(before 1939), CIA map study, 10443, 5-48; USSR Ethnic Composition, CIA
map study, 11240, 7-49.
In addition, the terms used in this definition must be clarified and
their exact meaning understood, before the explanation can be fully
evaluated. For example, the use of "Mongol' is a loose application of
the word for the Magyars of Hungary, the Huns of the Balkans and the
Italian peninsula, the Finns, the Tartars, and the Mordvinians of
east-central Russia are all members of the Mongol racial family. /4/
Encylopedia Americana, volume 16, page 285; Encylcopedia Brittanica,
volume 2, page 574, volume 12, volume 13, page 246, volume 15, page 719;
Dictionary of Races or Peoples (supra); New International
Encyclopedia, volume 13, page 80, volume 20, pages 171, 238; Segal,
Concise History of Russia, London, 1944.
The Kalmuks of southeastern European Russia are admittedly of
Mongolian origin, as are the Tartars of the same general area but these
parallel racial groups have both become fused with the rest of the
racial minorities of southeastern European Russia by a gradual process
of association and intermarriage. Thus, both the Kalmuks and Tartars
have become "more or less Europeanized in blood and custom, even though
the racial traces are still discernible' (as stated in Matter of S
(supra), p. 2). Hammerton and Barnes, Illustrated World History, N.Y.,
1928; Hays and Moon, Ancient and Modern History, N.Y., 1933; Schapiro,
Modern and Contemporary European History, Cambridge, 1942; see also,
sources cited in previous paragraph.
Counsel for the Immigration Service has suggested that perhaps this
case is not one typical of the Kalmuk race and hence should be decided
individually. We do not feel that such an approach to the problem is
permissible.
The Board, in consulting various available sources of information
relating to the Kalmuks, has in fact obeyed the dictates of the Supreme
Court in Ozawa v. United States, 260 U.S. 178 (1922), for we have
considered the words of the statute as signifying a racial rather than
an individual test, thus adhering to the spirit of the statute.
Concerning the comparison of photographs of S and the R 's, made by
the Service in an effort to substantiate their stand that the Kalmuks
are more oriental than European, appellants' counsel has appropriately
pointed out that the test of eligibility for naturalization under
section 303 has never been whether a particular person looks like a
white person. In addition, the criterion has never been solely that of
racial characteristics. Photographs, even if they constitute a true
likeness of subjects, are not considered as conclusive evidence of the
issue to which they relate. Cf. Matter of G S , A-7366180 (August 16,
1950); Matter of L B L , A-7369410 (April 28, 1950)).
Counsel for the Immigration Service also contends that appellants
have failed to discharge the burden of proof cast upon them, as
applicants for admission. In the instant case, the aliens have made a
substantial prima facie showing of eligibility for admission, which the
Assistant Commissioner overruled; thereafter, counsel for appellants
has affirmed their contentions, speaking authoritatively in rebuttal
from available legal and ethnological sources. We feel that appellants
have discharged the burden of establishing admissibility in adequate and
reasonable fashion (Northeastern Electric Co. v. Federal Power
Commission, 134 F.(2d) 740 (C.C.A. 9, 1943); Bailey v. Zlotnick, 133
F.(2d) 35 (C.A.D.C., 1942)).
Upon further consideration of the problem, we affirm our
determination of February 16, 1951.
The motion for reconsideration is denied. We will, however, accede
to the request of the Commissioner and refer the case to the Attorney
General for review of our decision.
Order: It is ordered that the motion be denied.
(1) See Matter of S (supra), and our prior opinion in this case
(Matter of R , February 16, 1951).
(2) The applicant's racial composition, by its present-day
evaluation, must be that of a "white person' in order to warrant
naturalization, according to the court.
(3) S. Doc. 662, 61st Cong., 1911, p. 86:
"A race or people belonging to the Mongolic group now living mainly
in southeastern Russia. Much smaller in numbers than the Tartars, their
neighbors, to whom they are not related in language so closely as to the
Mongols of northern China. In appearance and culture also they are more
Asiatic than the Tartars. They still follow a nomadic life with their
herds on the steppes of Russia somewhat as they did in their old home in
central Asia around Lake Balkash and at the foot of the Altais. They
serve with the Cossack cavalry, mainly in the capacity of herdsmen. In
religion they are Buddhists.'
(4) See pt. I of the appendix to decision of February 16, 1951. The
Finnic group, mentioned there, is composed of (1) Magyars, (2) Finns,
(3) Lapps, (4) Esths, (5), Livs, (6) Mordvinians, and other Russian
minorities.
The decision and order of the Board of Immigration Appeals dated
April 20, 1951, are hereby approved.
Editor's note. -- On July 12, 1951, in unreported Matter of A ,
A-8001632, the Central Office held that a person of stock (Tadjik or
Tadshik) originating in the Turan area, east coast of the Caspian Sea,
of a group of families settled in the Ukraine in 1931 by the Soviet
Government, was racially eligible to citizenship in the United States as
a "white person' (true Persian stock; See 2, I. & N. Dec. 253, 257),
and was admissible to the United States (though a native of the "barred
zone').
The Central Office in unpublished Matter of N , A-7483378 (56247/95)
May 16, 1950, held that Annamites in Indochina are not "white persons',
are of a race indigenous to the southeastern peninsula of Asia and are
distinguishable from the Chinese.
Foreign Agents Registration Act of June 8, 1938, as amended August 7, 1939 -- Conviction thereunder (1943) -- Deportability under the above act, as further amended on April 29, 1942 -- Suspension of deportation -- Discretion.
(1) Although the Foreign Agents Registration Act of June 8, 1938, as amended by the Act of August 7, 1939 did not contain a provision for deportation of an alien convicted thereunder, an alien so convicted is subject to deportation under the provisions of the Act of April 29, 1942 which further amended the above Act of June 8, 1938, as amended by the Act of August 7, 1939. /*/
(2) Though an alien establish that he meets the eligibility requirements set forth in Sec. 19(c) of the Immigration Act of February 5, 1917, as amended, he may yet be found undeserving of suspension of deportation as a matter of discretion.
CHARGE:
Warrant: Act of 1938, as amended -- Convicted of violation of and
conspiracy to violate Foreign Agents Registration Act of 1938.
Discussion: This case was argued before us by counsel on January 19,
1950. Because of the decision of the Supreme Court in Sung v. McGrath,
339 U.S. 33, 94 L.Ed. 616, 70 S.Ct. 445 (1950), we ordered that the
record be reopened for rehearings conducted in accordance with the
provisions of that act. The earlier hearings were stipulated into the
record. The hearing examiner found respondent to be deportable and
concluded that he is ineligible for suspension of deportation. The
Assistant Commissioner found respondent to be eligible for suspension,
but denied relief because of his conviction in 1943 for a crime, as
discussed hereafter. The record is again before us on appeal.
Respondent is a native and citizen of Germany, age 40. He first
entered the United States in 1929 as a quota immigrant. He has resided
in the United States at all times since 1929 except for two 4-month
periods when he left the United States to visit his family, once in
Mexico in 1931 and once in Germany in 1937.
Respondent married a United States citizen in California on May 11,
1941. A United States citizen child was born to respondent and his wife
on April 12, 1942. Respondent is at present separated from his wife,
having obtained an interlocutory decree of divorce against her on
September 23, 1946. The child was awarded to the custody of
respondent's wife. He pays her $25 per month for support of the child.
On December 8, 1941, respondent was taken into custody and interned
as an alien enemy. On October 5, 1943, while in internment, he was
indicted by a Federal grand jury for conspiracy to violate the
Notification Act of 1917, 40 Stat. 226, and for conspiracy to violate
the Foreign Agents Registration Act of June 8, 1938, as amended, and to
defraud the United States under the Federal conspiracy statute (18 U.S.
C. sec. 88; 22 U.S.C. sec. 601; 22 U.S.C. sec. 611-616). This
indictment contained two counts. The court dismissed the conspiracy
alleged under count I, and respondent was found guilty by a jury, after
a plea of not guilty, of the conspiracy alleged under count II. Count
II alleged a conspiracy to violate and the violation of the Foreign
Agents Registration Act of June 8, 1938, 52 Stat. 631, 22 U.S.C.A. 612,
as amended by the act of August 7, 1939 (53 Stat. 1244), and rules and
regulations promulgated thereunder, and to defraud the United States in
violation of title 18 U.S.C., section 88. Respondent served a prison
sentence in the Federal Correctional Institution at Milan, Mich., from
June 2, 1944, until January 26, 1946. Upon release from that
institution, he was again interned as an alien enemy. He was
unconditionally released in alien enemy proceedings on June 5, 1946.
The Alien Enemy Repatriation Hearing Board determined that respondent
should not be removed from the United States as an "undesirable alien.'
The Assistant Commissioner has found that respondent is a person of
good moral character. He has found that deportation of respondent would
not result in serious economic detriment to respondent's United States
citizen child for the reason that respondent is paying only $25 a month
for the support of the child. We agree with the finding that respondent
is a person of good moral character. We do not make any finding as to
whether or not his deportation would result in a serious economic
detriment to his child. It is not necessary for the purpose of this
proceeding for us to make any finding on this issue.
The Foreign Agents Registration Act of June 8, 1938, as amended by
the act of August 7, 1939, did not contain a provision for deportation
of any alien convicted thereunder. On April 29, 1942, Congress amended
this act generally, expanding its application, increasing its penalties
and providing for deportation of any alien as follows (22 U.S.C. 618(
c), 56 Stat. 257):
(c) Any alien who shall be convicted of a violation of, or a
conspiracy to violate, any provision of this act or any regulation
thereunder shall be subject to deportation in the manner provided
by sections 19 and 20 of the Immigration Act of 1917 (secs. 155
and 156 of title 8).
Counsel pleads that respondent was convicted under the act of 1938,
as amended in 1939. This act contained no deportation provisions, and
it is the principal argument of counsel that the deportation provision
added by the amendment of 1942 should have no application to respondent.
He contends that to hold that it has such an application would be
giving the amendment an ex post facto application. Respondent and his
associates were prosecuted in 1943 under the 1938 act, as amended in
1939, instead of being prosecuted under the act as amended in 1942. The
reason for this was because as to them the increased criminal penalties
in the 1942 act would have been ex post facto. It is our opinion that
the application of the deportation penalty is not so restricted. It has
long been established that Congress may enact a statute providing for
the deportation of aliens for past misconduct. The courts have held
that despite the fact than an immigration law may be retrospective in
its application to an alien, deportation is not such a punishment or
penalty as to bring it within the ex post facto inhibition. The most
recent exposition of this subject is contained in Harisiades v.
Shaughnessy, 90 F.Supp. 397, 424, recently sustained by the Second
Circuit Court of Appeals, as follows:
An ex post facto law is one that makes an act committed before
its passage criminal, although at the time the act was committed
it was not criminal. Ex post facto laws are specifically
forbidden by article I, section 9, of the United States
Constitution. But a deportation proceeding is not a criminal
proceeding. The retrospective features of a deportation statute
do not fall under the ban of the ex post facto section of the
Constitution, (Johannessen v. United States, 225 U.S. 227, 32 S.
Ct. 613, 56 L.Ed. 1066; Luria v. United States, 231 U.S. 9, 34
S.Ct. 10, 58 L.Ed. 101; Bugajewits v. Adams, 228 U.S. 585, 33 S.
Ct. 607, 57 L.Ed. 978; Mahler v. Eby, 264 U.S. 32, 44 S.Ct. 283,
68 L.Ed. 549).
Counsel quotes from the substantially different Vierack v. United
States, 318 U.S. 236, 87 L.Ed. 734, 63 S.Ct. 561. The Supreme Court
held that Congress could not legislate after the crime had been
committed to make Viereck's crime greater than it was under the law as
it existed at the time of the crime. The distinction between that case
and the present one is that Viereck's acts did not constitute a crime
under the 1938-39 act but did constitute a crime under the act as
amended in 1942. Respondent's acts constitute a crime under both the
1938-39 act and under the act as amended in 1942. The Supreme Court
held that since Viereck's acts did not constitute a crime under the
earlier statute, the later statute could not be used by the Governmen to
show that Congress had intended that Viereck should be covered by the
1938 act. As to respondent in the present case, the 1942 amendment is
not used by the Government to enlarge the charges against him, or to
extend the "penalties' inflicted upon him, but it does impose the
additional "enforcement provision' of deportation.
Since Congress may enact a statute to deport an alien for past
misconduct, the only question remaining is whether or not in this case
Congress has done so. The deportation provision passed in 1942 declares
that any alien convicted of a violation of any provision of "this act'
shall be subject to deportation. A year later respondent was convicted.
It is counsel's contention that "this act' refers only to the
provisions passed by Congress in 1942. The amended statute passed in
1942 reads (56 Stat. 248, P.L. 532, April 29, 1942):
An act to amend the act entitled "An act to require the
registration of certain persons employed by agencies to
disseminate propaganda in the United States, and for other
purposes,' approved June 8, 1938, as amended.
Be it enacted * * * that the act of June 8, 1938 (52 Stat.
631, U.S.C., Title 22, sec. 233(a) to 233(g) * * * as amended, is
hereby amended to read as follows: Policy and Purpose.
The 1942 amendment provided: "This act may be cited as the Foreign
Agents Registration Act of 1938, as amended.'
So far as the legislative history gives any light whatever as to the
intention of Congress, it indicates that the author of this statute
intended the 1942 changes to constitute an amendment to the 1938 act, as
amended in 1939. Representative McCormack stated (88 Cong., Rec.,
January 28, 1942, p. 802):
The present bill strengthens the McCormack Act. I was
experimenting at that time, and, naturally, when you are
experimenting you cannot go as far as you can after you have had
experience, and in the light of the experience gained from the
administration of the McCormack Act, these amendments are
necessary to strengthen the act for the best interests of our
people. Emphasis supplied.
In the recent case of Eichenlaub v. Shaughnessy et al., 38 U.S. 521,
70 S.Ct. 329, 94 L.Ed. 307 (January 17, 1950), the opinion of the
majority said, "There is no question as to the power of Congress to
enact a statute to deport aliens because of past misconduct (citing
cases).' The Supreme Court said further:
We have given consideration to such other points as were raised
by the relators, but we find that they do not affect the result
(footnote). Among these is the claim in the Eichenlaub case that
the act of 1920 does not apply to his conviction under the
Espionage Act of 1917, because, in substance, the penalty for its
violation had been increased in 1940. This contention is without
merit.
So far as Sutherland on Statutory Construction is of assistance, he
says (vol. 1, sec. 1953):
* * * The act or code as amended should be construed as to
future events as if it had been originally enacted in that form.
* * * The legislature is presumed to know the prior construction
of the original act or code * * *.
It is our conclusion that respondent is deportable under 22 U.S.C.
618(c), the Foreign Agents' Registration Act of 1938, as amended. The
"enforcement provision' of deportation is effective as to him.
Counsel has requested a grant of suspension of deportation on behalf
of respondent, in the event that we find him to be deportable. He has
the necessary residence requirements, and he is the father of a United
States citizen child to whose support he is contributing $25 a month.
We are fully cognizant of the seriousness of deporting a man who has
lived in the United States all of his adult life. We also are conscious
of the fact that the Alien Enemy Hearing Board determined in 1946 that
this man was not to be deported under the Undesirable Aliens Act, 8
U.S.C. 157. However, respondent falls directly within a class of
persons determined by Congress to be deportable under 22 U.S.C. 618. We
do not believe that we should exercise discretionary relief in his
behalf. In U.S. v. German-American Vocational League, Inc., 153 F.(2d)
860, 865 (C.C.A. 3, 1946) (the case involving the criminal proceedings
against respondent and others), the Third Circuit Court of Appeals said:
The balance of appellant's points not included in the above
discussion have been carefully examined and are without merit. No
useful purpose would be served by detailing the evidence with
respect to each appellant. It is enough to say that it involved
all of them as active participants in the conspiracy charge to a
greater or less degree.
The court had held that the requirement for registration under the
Foreign Agents Registration Act is not limited to agencies created by an
express contract, but that the true test was whether agency in fact
existed. The court believed that the German-American Vocational League
was, in fact, a propaganda agency of the German Reich, representing
itself to be a social and fraternal organization to the end that it
should not be registered as a foreign agency. We note that G went to
Germany during the summer of 1937 to visit his family. Eichenlaub and
others also visited Germany in the summer of 1937, and it was during
1937 that the contract between the German Labor Front and the
German-American Vocational League was established, as set forth in the
opinion in United States v. League, 153 F.(2d) 860 at p. 863, footnote.
The Supreme Court denied respondent's petition for certiorari. (Gibbs
v. United States, 328 U.S. 833, 90 L.Ed. 1609, 66 S.Ct. 976). Under the
circumstances, we do not believe that it would be proper for us to
declare that respondent Gibbs, who acted as Secretary for the League in
San Francisco, was completely innocent of its true function.
We have read all the character recommendations submitted to us by
friends, associates, and employers of respondent. We concede that he is
a person of good moral character, who appears not to have been in any
kind of difficulty with the law or with his associates until 1941. The
fact remains that this is not the kind of case we can properly send to
Congress with a request for suspension of deportation. Relief for
respondent could only follow a Presidential pardon.
Order: The appeal is dismissed.
(*) Editor's note. -- See 3, I. & N. Dec. 310 wherein conviction was
under the above act, as amended April 29, 1942.
Conviction record, "expunged' -- Proceedings under section 1203.4 of the California Penal Code -- Whether deportable thereafter on basis of conviction record.
Proceedings under section 1203.4 of the California Penal Code are held to "expunge' the record of conviction and thereafter it may not serve as the basis for an order of deportation.
CHARGES:
Warrant: Act of 1917 -- Conviction of crime prior to entry, to wit: Petty theft.
Act of 1917 -- Admission of crime prior to entry, to wit: Petty
theft.
Discussion: The respondent is a 49-year-old native and citizen of
Mexico who has lived in the United States since his lawful admission for
permanent residence in 1919 except for temporary absences. He last
entered the United States as a returning resident on or about December
25, 1948. On May 13, 1940, in Los Angeles, Calif., upon a plea of
guilty the respondent was convicted of petty theft. He was sentenced to
90 days in jail, 60 days of which were suspended on condition he not
violate any law in the State of California for 2 years. The warrant
charges are predicated upon this conviction. However, subsequent to the
issuance of the warrant of arrest, the court, pursuant to the provisions
of section 1203.4 of the Penal Code of California, ordered on June 29,
1949, that the plea of guilty previously entered by said defendant on
May 13, 1940, be withdrawn; that a plea of not guilty be entered; and
that the accusations against respondent be dismissed. The presiding
inspector, in view of the proceedings under section 1203.4 has
recommended that the warrant of arrest be canceled. However, the
reviewing officer, citing cases of the California Supreme Court that
will be hereafter discussed, has concluded that the expungement of the
record under section 1203.4 does not remove the respondent's conviction
and this officer has recommended deportation unless it is desired to
invoke the authority of the 7th proviso to section 3 of the act of
February 5, 1917, nunc pro tunc, to adjust respondent's immigration
status in the United States.
Section 1203.4 of the California Penal Code provides:
Every defendant who fas fulfilled the conditions of his
probation for the entire period thereof, or who shall have been
discharged from probation prior to the termination of the period
thereof, shall at any time thereafter be permitted by the Court to
withdraw his plea of guilty and enter a plea of not guilty; or if
he has been convicted after a plea of not guilty, the Court shall
set aside the verdict of guilty; and in either case the Court
shall thereupon dismiss the accusations or information against
such defendant, who shall thereafter be released from all
penalties and disabilities resulting from the offense or crime of
which he has been convicted. The probationer shall be informed of
this right and privilege on his probation papers. The probationer
may make such application and change of plea in person or by
attorney authorizing ed in writing; provided, that in any
subsequent prosecution of such defendant for any other offense,
such prior conviction may be pleaded and proved and shall have the
same effect as if probation had not been granted or the accusation
or information dismissed.
The Service and the Board of Immigration Appeals have held in
numerous cases that the proceedings under section 1203.4 expunge the
record of conviction and that thereafter it may not serve as the basis
for an order of deportation. Matter of G G A-4250665, C.O., July 1,
1949 and Board of Immigration Appeals Decisions cited therein; Matter
of V , 56033/701 B.I.A. April 10, 1943. /*/ Reconsideration of the
question arises from the fact that the Supreme Court of California on
June 15, 1949, in the case of Meyer v. Board of Medical Examiners et al.
(206 P.(2d) 1085), held that the setting aside of a record of conviction
and the dismissal of the criminal proceedings under sections 1203.3 and
1203.4 does not obliterate the fact that there has been a final
adjudication of guilt of the crime. The Meyer case involved the
suspension of a physician's license in connection with which the record
of conviction was used as a basis for a finding that Meyer had been
convicted of an offense involving moral turpitude and by reason of such
conviction was guilty of unprofessional conduct, the finding and
suspension being made after the record of conviction had been expunged
under sections 1203.3 and 1203.4.
The Meyer case relied heavily upon the earlier case of In re Phillips
(109 P.(2d) 344), decided by the Supreme Court of California on Junuary
17, 1941. The Phillips case involved disbarment proceedings against an
attorney in connection with which an order of disbarment had been
entered prior to the proceedings under sections 1203.3 and 1203.4 and in
which a petition to set aside the order of disbarment and to restore the
petitioner's name to the roll of attorneys was denied after expungement
of the record of conviction under section 1203.4.
The effect of proceedings under section 1203.4 has been considered in
Federal courts in connection with naturalization proceedings (In re
Ringnalda, 48 F.Supp. 975, (S.D. Calif., C.D., 1943), Service File
246-C-5675447; In re Paoli, 49 F.Supp. 128 (N.D. Calif. S.D., 1943)).
The courts in the Federal cases were cognizant of the holding of the
State court in the Phillips case. The effect of the holdings in the
Federal cases is that the acts of the persons involved may be considered
in connection with the determination of whether good moral character has
been established but that the record of conviction may not be relied
upon as establishing commission of the acts. In the Meyer case the
court permitted the record of conviction to be considered as
establishing unprofessional conduct.
The court in the Meyer case split four to three and in a strong
dissent it was stated:
The majority point out that the legislature could not have
intended that the proceeding under section 1203.4 of the Penal
Code was to wipe out the defendant's guilt because (1) of the
express proviso contained in the section; (2) because the
conviction may be used for impeachment purposes, People v. James,
40 Cal.App.(2d) 740, 746, 105 P.(2d) 947; (3) because it may be
used for the purpose of suspending or revoking a driver's license
(Vehicle Code, sec. 309); (4) because it may be used in a second
prosecution for failure to provide for a minor child, and because
all matters inherent in the conviction (that is, the adjudication
on the issue of parentage) were admissible in evidence. People v.
Mojado, 22 Cal.App.(2d) 323, 70 P.(2d) 1015.
I would like to point out, in this connection, that in People
v. James (supra), the defendant was charged with the crime of
grand theft. The fact that he had been previously convicted and
the conviction dismissed pursuant to section 1203.4 of the Penal
Code was used to impeach him. This case does not add another
exception to the statute but falls squarely within the one there
contained. * * *
And in People v. Mojado (supra), the defendant was found
guilty, under section 270 of the Penal Code, of failure to provide
for a minor child. The only question raised there was whether the
court erred in admitting in evidence the record of a prior
conviction which had been subsequently dismissed pursuant to
section 1203.4 of the Penal Code. Note that this case, too, falls
squarely within the exception to the section and is not additional
thereto. Both People v. James, and People v. Mojado (supra), cite
with approval statements made in the case of People v. Hainline,
219 Cal. 532, 28 P.(2d) 17. In that case it was said, 219 Cal. at
page 534, 28 P.(2d) at page 17: "If, prior to the 1927 amendment
any doubt existed in the minds of lawyers, judges, and laymen as
to the statute of those who committed a second felony, such doubt
was removed by said amendment (St. 1927, p. 1493), which strips
them of all the privileges and rights which were restored to them
by the provisions of the original act upon the completion of their
probationary term. * * *
"The concluding portion of the act, which provides that if the
probationer commits a second offense he shall forfeit all the
rights with which he was clothed at the time the court ordered the
information dismissed, constitutes the amendment of 1927 * * *.
Said amendment simply and justly provides that persons who have
refused to profit by the grace extended to them upon the first
offense shall, upon conviction of a subsequent felony, suffer the
penalty of the law as prescribed for the punishment of all other
offenders.' Emphasis added.
Section 309 of the Vehicle Code is an express additional
statutory exception to the Penal Code section under consideration.
The charges against the respondent in the instant case are that he
has been convicted of a crime and that he admits, on the basis of the
plea in the criminal case, the commission of this crime. California
statutes specifically provide that for some purposes the proceedings
under section 1203.4 are not regarded as having expunged the record of
the crime. In the words of the majority opinion in the Meyer case "As
the release of the "penalties and disabilities' clause of the probation
statute has been so qualified in its application, it does not appear
that it was thereby intended to obliterate the record of conviction
against a defendant and purge him of the guilt inherent therein (cf.
Sherry v. Ingels (supra), 34 Cal.App.(2d) 632, 94 P.(2d) 77) or to "vipe
out absolutely' and for all purposes the dismissed proceedings as a
relevant consideration and "to place the defendant in the position which
he would have occupied in all respects as a citizen if no acqusation or
information had ever been presented against him.' People v. Mackey, 58
Cal.App. 123, 130, 208, P. 135, 138. From this standpoint, appellant's
theory that the import of the probation statute and the dismissal
proceeding is to expunge the record of the crime, Sherry v. Ingels
(supra); People v. Mackey (supra), cannot prevail.' It is the opinion
of the State court that the expungement proceedings do not obliterate
the adjudication of guilt, that the person remains one who has been
convicted, and that the record of conviction is admissible as evidence
of conviction of the crime in proceedings additional to the proceedings
specifically provided for by statute. The State and Federal courts,
however, are in disagreement. There is still a substantial doubt as to
the propriety of holding that, as far as immigration proceedings are
concerned, the person remains one who has been convicted of a crime.
Accordingly, no change appears to be warranted in the present view of
the Service to the effect that in cases such as the instant one the
charges are not sustained. The warrant of arrest will therefore be
canceled and the proceedings will be terminated.
Order: It is ordered that the warrant of arrest be canceled and that
the proceedings be terminated.
(*) Editor's note. -- To like effect, Matter of E , A-5697769
(formerly 56133/266), B.I.A., 1945.
Seventh proviso -- Section 3 of the Immigration Act of February 5, 1917 -- Discretion exercised as of date of grant -- Effect of subsequent passage of section 6(a) of the Act of October 16, 1918, as amended by the Internal Security Act of 1950.
The action of exercising the authority in the seventh proviso to
section 3 of the Immigration Act of February 5, 1917, occurs on the date
it is granted even though it is to be effective at some future time when
there is to be a physical entry into the United States; so that a grant
of 7th proviso relief in 1949, covering a case falling within the
purview of section 1 of the act of October 16, 1918, as amended by the
Internal Security Act of 1950 is not affected by the provisions of
section 6(a) of that act, as amended and may be utilized on a physical
entry into the United States, after the amendment of that act in 1950.
(See 3, I. & N. Dec. 784 for previous decisions in this case.)
Discussion: This case is now before the Board on a motion filed by
the Acting Commissioner asking that the decision of this Board of
November 8, 1949, approved by the Acting Attorney General November 16,
1949, which authorized the admission of the applicant under the
provisions of the 7th proviso in regard to past membership in the German
Communist Party, be withdrawn. Mr. Sternberg on behalf of the
applicant, filed a memorandum in opposition to the Acting Commissioner's
motion.
The applicant involved was born in Germany in 1900. In 1919, when he
was but 19 years of age, he joined the Independent Social Democratic
Party of Germany. That party merged into the Communist Party of Germany
in 1921. He remained with the party until December 1928 when he was
expelled. He has not been a member of the Communist Party or affiliated
with any Communist organization, or any organization that has espoused
communistic doctrines since 1928, and alleges at no time did he believe
in the philosophy of force espoused by the Communists. The applicant
has lived here since April 16, 1941. He has been thoroughly
investigated and no evidence whatever of subversive activities or
subversive inclinations has been discovered.
The motion of the Service points out the provisions of section 6(a)
of the act of October 16, 1918, as amended by the Internal Security Act
of 1950. This provision of law reads as follows:
The provisions of the 7th proviso to section 3 of the
Immigration Act of February 5, 1917, as amended (39 Stat. 875; 8
U.S.C. 136), relating to the admission of aliens to the United
States, shall have no application to cases falling within the
purview of section 1 of this act.
It is clear, of course, the applicant's case is included within
section 1 of the act of 1918, as amended. The only question before us
is whether this amendment, which became law on September 23, 1950, has
any application to a grant of the 7th proviso occurring prior to its
enactment. In explanation of his position, the Acting Commissioner
merely states that it would appear that if the alien departed from the
United States, he would, upon return, be found excludable under the 1918
act, and at such time could not be admitted under the 7th proviso.
It is our view that the applicant's admission under the 7th proviso
was authorized on November 16, 1949, when the Acting Attorney General
approved the decision of this Board. If the applicant departs from the
country, no action upon his return is needed to direct admission under
the 7th proviso. That action was taken November 16, 1949. The language
of the amendment, in terms, relates to future cases. It does not
purport to affect past action. It is true that the grant of 7th proviso
relief by the Acting Attorney General on November 16, 1949, becomes
effective upon the applicant's return to the United States, but that is
not synonymous with action authorizing admission taken upon the
applicant's return to the United States.
A reference to procedure will make this point clear. If the Internal
Security Act had not intervened, when the applicant left the country and
secured an appropriate immigration visa and returned, he would have been
admitted on primary inspection with the immigration visa,
notwithstanding his membership in the German Communist Party in the
twenties. Primary inspectors have no power to admit under the 7th
proviso. On what authority then could the applicant have been admitted?
Only on the basis that on November 16, 1949, the Attorney General had
directed the applicant's admission under the 7th proviso. The action of
exercising the authority in the 7th proviso took place on November 16,
1949, and that is the controlling date, even though it related to an
entry thereafter to occur. Section 6 of the act of 1918, as amended by
the Internal Security Act, proposes to revoke the authority of the
Attorney General (and those to whom he may delegate his authority) to
exercise the 7th proviso in reference to subversive cases in the future.
This clearly being past action, the statute does not apply.
Although not germane to the issue before us, the applicant's
representative points out in detail the efforts the applicant has been
making to secure lawful admission under this grant or discretionary
action. It is clear that the applicant has been diligent and the delays
in securing lawful entry are beyond his control.
The question of law involved in this case is of very limited
application. Besides this case, there are four other possible cases
where the ruling might be applicable. Within recent times the 7th
proviso admission in reference to aliens who have previously been
members of the Communist Party or like organizations has been authorized
by this Board in but five cases. Whether the aliens in the other four
cases have taken advantage of the grant of discretion and have been
legally admitted to this country, we do not know; but in any event, the
group covered is extremely limited.
It is our conclusion, therefore, that the motion of the Acting
Commissioner should be denied. Since, however, there is involved a
question of discretionary action relating to a subversive case, we feel
that the matter should be brought to the attention of the Attorney
General.
Order: It is ordered that the motion of the Acting Commissioner be
denied.
LEIGH L. NETTLETON and ROBERT M. CHARLES, Members, dissenting:
We are compelled to dissent from the opinion of our associates on the
legal issue presented by the motion of the Acting Commissioner. Section
3 of the Immigration Act of 1917 (8 U.S.C. 136), after stating that
certain classes of aliens, as specified therein, shall be excluded from
admission into the United States, provides as follows:
Provided further (7). That aliens returning after a temporary
absence to an unrelinquished 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:
* * *.
In our consideration of this case on November 8, 1949, we entered an
order the pertinent portion of which was as follows:
Order: It is ordered that * * * if the appellant applies for
admission to the United States within 6 months from the date of
this order, in possession of an appropriate immigration visa, he
be admitted under the 7th proviso to section 3 of the Immigration
Act of February 5, 1917, if them in all respects admissible,
except for his affiliation with one of the aforementioned
excludable classes from 1921 to 1928.
It is clear from the language of the statute and the order that the
time of operation of the waiver authorized by the Attorney General is
the time the alien applies for admission into the United States. The
alien has not yet applied for admission; he contemplated doing so when
he obtained an immigration visa. Meanwhile the Internal Security Act
was enacted. It narrows the scope of operation of the 7th proviso, The
act provides:
Section 6(a). The provisions of the 7th proviso to section 3 of
the Immigration Act of February 5, 1917, as amended (39 Stat.
875; 8 U.S.C. 136), relating to the admission of aliens to the
United States, shall have no application to cases falling within
the purview of section 1 of this act.
That language limits the scope of operation of the proviso and its
effect, as we believe, is to nullify any outstanding order in conflict
therewith. The order of November 8, 1949, authorizing admission
pursuant to the 7th proviso, has not been effectuated by the
contemplated entry into the United States; and now by reason of the
change in the law the authority to enter no longer exists.
The fact that the administrative order was entered pursuant to law as
it them existed is beside the point, inasmuch as the amendment provides
in specific terms that the proviso "shall have no application to cases
falling within the purview of section 1 of this act.'
The power of the Attorney General to withdraw an order granting
relief under the 7th proviso has never been questioned, and it has been
exercised whenever circumstances made such action desirable. If the
administrative officer has the power to revoke his grant of relief,
there seems to be no reason to question the power of the Congress, from
which the administrative officer derives his authority, to withdraw or
modify any such grant by the officer, previous to the time that the
authority so granted had been brought into execution.
We would grant the motion of the Acting Commissioner for the reasons
stated herein.
It is further ordered that the case be certified to the Attorney
General in accordance with the provisions of section 90.12 of title 8,
Code of Federal Regulations, for review of the Board's decision.
The decisions and order of the majority of the Board of Immigration
Appeals dated January 31, 1951, are hereby approved.
Discussion: On November 8, 1949, this Board authorized the admission
of respondent under the provisions of the 7th proviso to section 3 of
the Immigration Act of February 5, 1917, as amended. The Acting
Attorney General approved that order on November 16, 1949. On January
31, 1951, we denied a motion of the Acting Commission asking that the
grant of 7th proviso relief to respondent be withdrawn because of the
provisions of the newly enacted Internal Security Act of 1950 limiting
the operation of 7th proviso in this kind of case. Our decision was
approved by the Attorney General on March 23, 1951.
The period which respondent has been granted during which to avail
himself of this relief has been extended from time to time. His
attorney last stated (motion for extension of time in which to perfect
preexamination, January 29, 1951), that his extension of time in which
to effect entry expired on February 1, 1951, and asked that he be
granted an extension until September 1, 1951. A memorandum from the
District Director at Philadelphia, Pa., to the Assistant Commissioner,
Enforcement Division, Central Office, May 2, 1951, states that the order
of this Board dated September 13, 1950, granted respondent only until
December 1, 1950, to effect his entry into the United States in
accordance with the terms of the original order of this Board dated
November 8, 1949, granting 7th proviso relief.
A survey of the file indicates that we never acted upon counsel's
motion to extend time to February 1, 1951, filed on November 28, 1950,
with this Board, nor upon a similar motion asking an extension to
September 1, 1951, filed on January 29, 1951.
In view of the present disposition of this case it appears that
respondent should be granted a further extension of time within which to
avail himself of the relief granted him. We believe that he should be
granted a period of 90 days from the date of notification of decision.
Order: It is ordered that the time within which the respondent may
effect his entry into the United States in accordance with the terms of
the Board's order of November 8, 1949, be extended until 90 days from
the date of notification of decision.
Admission of the commission of a crime involving moral turpitude prior to entry (larceny) -- Adequacy thereof /*/ -- Juvenile offender (Michigan).
(1) In exclusion proceedings (there being no conviction record nor a plea of guilty before a convicting court to consider), to conclude that the admission of the commission of the offense (involving moral turpitude) is adequate, the "definition' of the crime (here it was larceny) need only be substantially similar to the particular statutory definition (in this case section 28.588-section 356 of the Michigan Penal Code) of the offense and contain all the necessary elements of the crime, but need not be "identical' to the law of the jurisdiction in which the crime was committed.
(2) Since this alien attained the age of seventeen, one month before the offense in question, she was not eligible for special treatment as a juvenile or for transfer of her case to the county probate court (juvenile division) under the laws of the State of Michigan.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917 -- Admits commission of crime involving moral turpitude
-- larceny.
Discussion: Appellant, an 18-year-old native and citizen of Canada
sought admission to the United States at Detroit on June 12, 1950, and
was excluded on the above charge. The Assistant Commissioner affirmed
this conclusion on October 25, 1950, and appellant appealed.
Appellant testified that she had previously entered this country on
the afternoon of February 6, 1950, to go shopping in Detroit after work.
As she was leaving a Detroit department shore, she was detained by a
house detective, then turned over to local police for stealing a woman's
suit of clothing, valued at about $15. She was released the following
day, because the store declined to prosecute, and was then permitted to
depart voluntarily by the Immigration Service. The record reveals that
appellant entered the store wearing only a blouse and topcoat over her
slip; she then donned a suit skirt in a fitting room and attempted to
leave the store, wearing the skirt and carrying the coat, without paying
for the suit.
The crime of larceny is defined in the Michigan Penal Code in the
following way:
Section 28.588. Larceny: property subject to; value, degree
of crime. Section 356. Any person who shall commit the offense
of larceny, by stealing, of the property of another, any money,
goods or chattels, or any bank note, bank bill, bond, promissory
note, due bill, bill of exchange or other bill, draft, order or
certificate, or any book of accounts for or concerning money or
goods due or to become due, or to be delivered, or any deed or
writing containing a conveyance of land, or any other valuable
contract in force, or any receipt, release or defeasance, or any
writ, process or public record, if the property stolen exceed 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 28.592. Larceny: from dwelling house, store, factory,
ship, or other bailding. Sec. 360. Any person who shall commit
the crime of larceny by stealing in any dwelling house, office,
store, shop, warehouse, mill, factory, hotel, school, barn,
granary, ship, boat or vessel shall be guilty of a felony. (Vol.
25, Michigan Statutes Annotated, 1938.)
Appellant's offense on that occasion was in fact larceny, for she
stated that she intended to keep the suit and wear it without paying the
purchase price. Appellant's act of putting on the skirt and removing
the suit from one part of the store to another in her route out of the
building constituted sufficient asportation to satisfy that essential
element of larceny, for the slightest removal, even a "hair's breadth,'
satisfies the asportation requirement (People v. Bradovich, 305 Mich.
329.) /1/
Since appellant had just passed her 17th birthday at the time she
committed the act in question, it is necessary to determine whether
appellant would have been treated as a juvenile offender at that age.
In Michigan, juvenile jurisdiction has been exercised over children
under seventeen by the juvenile division of the probate courts since
1907 (Public Acts 1907, page 42, section 2; now sections 27.3178
(598.1, 598.2, 598.3)). Section 27.3178 (598.2)
Except as provided herein, the juvenile division of the probate
court shall have:
(a) Exclusive original jurisdiction in proceedings concerning
any child under 17 years of age.
In the instant case, respondent attained the age of seventeen 1 month
before the offense in question and hence was not eligible for special
treatment as a juvenile or for transfer of her case to the county
probate court, juvenile division. /2/ For this reason, respondent was
guilty of the offense of larceny, a crime involving moral turpitude /3/
and thus does not come within the meaning of the term "juvenile
offender,' as set out in Matter of O N , 2, I. & N. Dec. 319, 55813/162
(A.G. 1945), Matter of N , A-6953557 (B.I.A., August 26, 1949); Matter
of M M , A-4096976 (B.I.A., November 16, 1950); 37 Op. Atty.Gen. 259
(1933).
With regard to the question of the validity of the admission of the
crime elicited from respondent, it will be noted that the offense was
defined as follows:
Larceny is the felonious taking the property of another without
his consent and against his will with intent to convert it to the
use of the taker. Do you understand the meaning of the term
"larceny'?
Since Matter of J , 2, I. & N. Dec. 285 (56038/559, A.G. 1945)
requires that "the alien must be advised in a clear manner of the
essential elements of the alleged crime,' we have held that the
definition need only be substantially similar to the particular
statutory definition of the offense and contain all the necessary
elements of the crime, but need not be identical to the law of the
jurisdiction in which the crime was committed (Matter of G , A-5990340,
(B.I.A., October 12, 1949)). The above definition of larceny and that
found in the Michigan statutes contain the same essential elements and,
being a voluntary, explicit, and unequivocal acknowledgement of guilt,
constitutes an effective admission of the crime. /4/
Therefore, the ground of exclusion is sustained.
In view of the recentness of the crime and the lack of any real
necessity for appellant's presence in the United States at this time, we
will not authorize appellant's admission under the 9th proviso to
section 3, act of 1917.
Order: It is hereby ordered that the appeal be dismissed.
(*) Editor's note. -- See 2, I. & N. Dec. 285.
(1) People v. Baker, 365 Ill. 328; State v. Gazell, 30 Mo. 92;
State v. Mitchener, 98 N.C. 689; Gettinger v. State, 13 Neb. 308. Cf
State v. Taylor, 136 Mo. 66; Eckels v. State, 20 Ohio St. 508.
(2) The Michigan courts have held that this juvenile jurisdiction of
the probate court over delinquent children does not reqeal by
implication the statutory accountability of children over fourteen for
their crimes (People v. Ross, 235 Mich. 433). This juvenile legislation
rather establishes the concurrent jurisdiction of the general criminal
court and the probate court, juvenile division, with the proceedings in
the latter court not being "deemed to be criminal proceedings' (Secs.
27.3178 (598.1, 598.3, 598.4); People v. Tillard, 318 Mich 619.) It
will be noted in this connection that the age of the child when arrested
or charged in criminal proceedings, not the age at the time of
commission of the offense, controls (People v. Crandell, 270 Mich. 124;
People v. Tillard (supra); see also Cosulich, Juvenile Court Laws of
the U.S. (Natl. Probation Assn. 1939, pp. 9, 16, 22, 27, 37, 40, and
135); Breckinridge and Jeter, Summary of Juvenile Court Legislation,
Dept. of Labor 1920, pp. 47 and 74).
(3) Matter of M , 2, I. & N. Dec. 530, 56205/971 (B.I.A., 1946).
(4) U.S. ex rel. Castro v. Williams, 203 Fed. 155 (D.C., S.D.N.Y.,
1913); Howes v. Tozer, 3 F.(2d) 849 (C.C.A. 1, 1925); U.S. ex rel.
Boraca v. Schlotfeldt, 109 F.(2d) 106 (C.C.A. 7, 1940).
Dissenting: ROBERT M. CHARLES, Member.
Discussion: This matter arises by reason of an appeal from the
decision of the Assistant Commissioner of Immigration and
Naturalization, Adjudications Division, dated October 25, 1950, wherein
an excluding decision of the board of special inquiry was affirmed.
Such action was predicated upon what purports to be an admission of
the commission of larceny, a crime involving moral turpitude. The
appellant was excluded from admission to the United States pursuant to
the provisions of section 3 of the act of February 5, 1917 (8 U.S.C.
136). That section provides in part as follows:
That the following classes of aliens shall be excluded from
admission into the United States * * *
* * * persons who * * * admit having committed a felony or
other crime or misdemeanor involving moral turpitude * * *.
The appellant testified that she was born in Winnipeg, Manitoba, on
January 7, 1933, and that she is a citizen of the Dominion of Canada;
that she resides in the city of Windsor, Province of Ontario, Canada,
where she is employed in the office of Lazare Furs.
The subject hereof applied for admission to the United States at
Detroit, Mich., on June 12, 1950, as a nonimmigrant visitor under the
provisions of section 3(2) of the act approved May 26, 1924, in order
that she might enter the United States for several hours for the purpose
of acting as a sponsor in the baptism of an infant of a friend who
resides in Detroit, Mich.
The appellant admitted that several months prior to her application
for admission to the United States she was arrested in Sam's Department
Store, Detroit, Mich., by the store detective for allegedly taking a
lady's suit. This young lady stated that she did not go to the store
for the purpose of stealing a suit and that she was not attempting to
steal it. She explained that she did not know why she was leaving the
store with the suit without paying for it. Thereafter she was detained
for a period of from 8 to 10 hours during which time she was
interrogated by an officer of the Immigration and Naturalization Service
and on or about February 7, 1950, she was returned to Canada. The alien
asserted that she was neither arrested previously nor since.
On page 5 appear the following questions and answers:
Q. Were you wearing the suit?
A. No.
Q. Did you have it concealed on your person?
A. I had the skirt on and I was carrying the jacket.
Q. Did you have the money to pay for the suit?
A. I had about three or four dollars, I think, that was all.
Q. What was the suit worth?
A. About 14 or 15 dollars.
Q. Had you ever before taken anything from a business place
without paying for it?
A. No.
In further explanation the appellant stated that when she entered the
United States she was wearing a winter coat and her other garments
consisted of a blouse and a slip. Thereafter she was asked:
Q. Why were you coming without a dress or a skirt on?
A. I was going to get a skirt.
Q. Why were you doing so?
A. I was going to buy one here and go back in it.
Q. Why didn't you buy the skirt?
A. I was looking around and didn't find one.
The record of the board of special inquiry contains a note to the
effect that the applicant is the subject of Detroit File 0800-75659
which file reveals that the alien was permitted to depart from the
United States voluntarily on February 7, 1950. There is a notation to
the effect, "The store declined to prosecute.' The note is to the
additional effect that the file is not available presently for the use
of the board of special inquiry.
At this point it is significant that the record before the board of
special inquiry contains no evidence whatsoever as to what the files of
the local police officials contain and it is my opinion that a fair
hearing should at least show the full disposition of the charge against
this young applicant who at the time of apprehension was only a little
more than 17 years of age. Because of the unavailability of the file it
would appear that reliance is placed upon memory and this is faulty at
best. Certainly a careful reading of the hearing before the board of
special inquiry on June 12, 1950 did not sustain a charge of criminality
but rather the alien was refused admission as shown on page 8 of the
transcript as a person likely to become a public charge (8 U. S.C.
136).
That this charge was not sustained is shown adequately not only on
the basis of the record but also on the basis of the decision in this
case of Skrmetta v. Coykendall, 22 F.(2d) 120. Accordingly, the hearing
before the board of special inquiry was reopened on July 3, 1950,
apparently upon motion of the board of special inquiry.
The reason for the reopening is not clearly indicated. On the
reopened hearing the following questions and answers appear:
Q. You testified when you were before the Board June 12, 1950,
that you entered United States February 6, 1950, and that while in
Sam's Store, Detroit, you put on a portion of a suit of ladies'
clothing, particularly the skirt and carried the coat and left the
store without paying for those garments and upon going out of the
door at the store you were apprehended by an officer of the store
with those articles in your possession. Is that correct?
A. Yes.
By reference to the record, itself, the alien did not quite so
testify. She was asked:
Q. Were you arrested in the United States?
A. Yes.
Q. Where?
A. At Sam's Department Store.
Q. Were you arrested inside the store or outside the store?
A. Right where you come out of the store.
During the course of the reopened hearing the following appears:
Q. I am going to read to you the definition of the term
"larceny.' Larceny is the felonious taking of the property of
another without his consent and against his will with intent to
convert it to the use of the taker. Do you understand the meaning
of the word "larceny?'
A. Yes.
Q. Do you admit at this time that you did commit the offense of
larceny at Detroit, Mich., February 6, 1950, when you took those
articles of clothing from a Detroit store without paying for it?
A. Yes.
The reading purporting to be a common law definition of larceny as
read into the record of the board of special inquiry is inaccurate and
defective as hereinafter shown that it renders the admission by the
alien of the commission of any offense thus described ineffectual so far
as sustaining the charge in the warrant of arrest is concerned.
Moreover, and of greater importance the description in the question
following the reading of what purports to be a common law definition of
larceny is so constructed as to render an admission of the commission of
larceny ineffective and consequently will not support the charge as
contained in the warrant of arrest. Thus the case at bar is
distinguishable from the decision of this Board in the Matter of J , 2,
I. & N. Dec. 285, A.G., 1945, 56038/559, decided March 1, 1945.
Not only must a criminal intent be shown before a conviction can be
obtained for the commission of crime but in the obtaining of the
admission of the commission of such offense by one unfamiliar with the
law, the same safeguards should obtain and at least a semblance of
criminal intent shall be shown. In this regard the record is utterly
lacking. Thus by reason of all of the foregoing; the hearing before
the board of special inquiry is obviously and manifestly so unfair that
the cause for exclusion should not be sustained on this basis alone.
Larceny is defined at common law in the National Cyclopedia of Law as
the taking and carrying away of the personal property of another with a
felonious intent to steal the same. Wharton in his work on criminal
law, volume II, page 1313, after reviewing the definitions by East,
Blackstone, Coke, and Hawkins, defines larceny to be the fraudulent
taking and carrying away of a thing without claim of right with the
intention of converting it to a use other than that of the owner without
his consent. The definition of larceny at common law as found in 36
Corpus Juris is the taking and carrying away from any place, at any
time, of the personal property of another, without his consent, by a
person not entitled to the possession thereof, feloniously, with intent
to deprive the owner of his property permanently, and to convert it to
the use of the taker or of some other person other than the owner.
That a comparison of the common law definition here as distinguished
from that read into the record by the board of special inquiry will
immediately show the imperfectness of the definition as given the alien
by the board of special inquiry.
The majority in its opinion sets forth the definition of larceny in
the Michigan Penal Code as follows:
Section 28.588. Larceny; property subject to; value, degree
of crime. Section 356. Any person who shall commit the offense
of larceny, by stealing, of the property of another, any money,
goods or chattels, or any bank note, bank bill, bond, promissory
note, due bill, bill of exchange or other bill, draft, order or
certificate, or any book of accounts for or concerning money or
goods due or to become due, or to be delivered, or any deed or
writing containing a conveyance of land, or any other valuable
contract in force, or any receipt, release or defeasance, or any
writ, process or public record, if the property stolen exceed 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 28.592. Larceny; from dwelling house, store, factory,
ship, or other building. Section 360. Any person who shall commit
the crime of larceny by stealing in any dwelilng house, office,
store, shop, warehouse, mill, factory, hotel, school, barn,
granary, ship, boat, or vessel shall be guilty of a felony. (Vov.
25, Michigan Statutes Annotated, 1938).
Even if this definition were read to the alien the admission exacted
from her cannot stand because of the construction of the question
propounded to her upon which the affirmative answer was made and upon
which the cause for deportation has been sustained. In this regard the
hearing in this case is manifestly unfair and the charge must
necessarily fall. The question is whether she was actually stealing.
The majority relies upon the case of the People v. Bradovich, 305
Mich. 329. In that case the defendant was charged with a lesser offense
than larceny, to wit, attempted larceny and at best if the charge in the
present proceeding sought to be sustained had been read into the record
from the statutory definition in Michigan, there is considerable doubt
that the admission could be sustained on the basis of the question asked
of the alien by the board of special inquiry. It is therefore my
opinion that the case of the People v. Bradovich is inapplicable.
There is an additional consideration and that is an admission in
order to be effective must be an unequivocal admission. In the case at
bar it is quite obvious that we do not have an unequivocal
acknowledgement of guilt which acknowledgement would leave no fair
ground for doubt or debate. Certainly it does not mean an admission of
facts (see Howes v. Tozer, 3 F.(2d) 849), as here in the question
propounded upon which the immediate admission is predicated.
Thus from the foregoing, it will be seen that we have an alien who
had just barely passed her 17th birthday and when she answered in the
affirmative she undoubtedly thought, in her unfamiliarity with the law,
that she was merely admitting the facts as placed in that question.
Larceny was imperfectly defined to her and since the admission was
predicated on the facts set forth in the question propounded by the
board of special inquiry, we do not have an unequivocal admission of the
commission of larceny. Moreover the record is defective in that the
files of the local police were not consulted, hence we are unaware of
all of the facts pertaining to the subject alien's irregularity of
conduct. We can well assume however that in all probability the police
did not have sufficient evidence to prosecute. We likewise on a record
so imperfect as here should not proceed to condemn and prosecute an
infant. Any other application of the law to this case would be highly
arbitrary and capricious and an utter miscarriage of justice. For all
of the reasons herein set forth, it is my conclusion that the reason for
inadmissibility is not sustained and that the temporary admission of the
alien for a few hours should be permitted.
Dissenting: ROBERT E. LUDWIG, Member.
I concur in the dissent of Board Member Charles.
In accordance with the provisions of section 90.12 of title 8, Code
of Federal Regulations, this case is certified to the Attorney General
for review of the Board's decision.
The decision and order of the majority of the Board of Immigration
Appeals dated January 31, 1951, are hereby approved.
Citizenship -- Expatriation by dual national by service in foreign (Canada) armed forces -- Section 401(c) of the Nationality Act of 1940 -- Repatriation thereafter under section 323 of the Nationality Act of 1940, as amended by the act of August 7, 1946 -- Applicability of the expatriating provisions of section 404(b) of the Nationality Act of 1940, as amended, by subsequent residence abroad.
(1) A person born in Canada (May 9, 1922), of a native-born citizen father, who was a duel national at birth (a Canadian by birth in Canada, a United States citizen under R.S. 1993), expatriated himself by service in the armed forces of Canada (from 1942 to April 1946) under the provisions of section 401(c) of the Nationality Act of 1940. (See Matter of S , 2, I. & N. Dec. 783).
(2) An oath of repatriation taken under section 323 of the Nationality Act of 1940, as amended, by the above person on August 7, 1946, which was the effective date of the act of August 7, 1946, amending section 323 of the Nationality Act of 1940, as amended April 2, 1942, resulted in restoring to the subject the same United States citizenship status he had immediately prior to its loss as stated above, i.e., a citizen at birth under R.S. 1933.
(3) The expatriative provisions of section 404(b) of the Nationality Act of 1940, as amended, are not applicable to the above case; the contrary would be true in case the subject took the oath of repatriation under section 323 (supra), prior to its amendment on Augut 7, 1946 (which is not retroactive), for such a repatriation before August 7, 1946, constituted a "naturalization' within the meaning of section 101(c) of the Nationality Act of 1940.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 -- No immigration visa.
Executive Order 8776 -- No passport.
Discussion: Appellant applied for admission into the United States
as a citizen. The board of special inquiry decided that he had become
expatriated, and this decision was affirmed by the Assistant
Commissioner. The only issue before us is whether or not appellant is
at the present time a citizen of the United States.
Appellant was born in Windsor, Ontario, on May 9, 1922. Appellant's
father was born in the United States, and the Immigration and
Naturalization Service concedes that appellant inherited United States
citizenship at birth from his father under section 1993, Revised
Statutes of the United States.
Appellant has lived in Canada since birth. Since 1946 appellant has
been employed in Detroit, Mich., and commutes each day from Windsor,
Ontario, to his place of employment. He makes his home in Windsor with
his wife and three children. Pending appeal appellant was paroled into
the United States in order that he might continue his employment.
Appellant is a dual national who served in the armed forces of Canada
from July 24, 1942, until April 6, 1946, thus losing his United States
citizenship. A dual national having United States and Canadian
citizenship, who served in the armed forces of Canada, forfeited his
United States citizenship under section 401(c) of the Nationality Act of
1940, (Matter of S , A-6458448 (March 19, 1947) (2, I. & N. Dec. 783)).
On August 7, 1946, he took the oath of renunciation and allegiance
prescribed by the Nationality Act of 1940 before the American vice
consul in Windsor, Ontario. He was thereby naturalized a citizen of the
United States pursuant to section 323 of that act. /1/
Section 404(b) of the Nationality Act of 1940 provides that a person
who has become a national by naturalization shall lose his nationality
by residing continuously for 3 years in the territory of a foreign state
of which he was formerly a national or in which the place of his birth
is situated, with exceptions not applicable here. The question is, does
section 404(b) apply to appellant? If he is to be considered a national
by naturalization, it does. If he is to be considered a national by
birth, it does not. A person reacquiring United States citizenship
under section 323 of the Nationality Act of 1940 by taking an oath of
allegiance is a citizen by naturalization if he took that oath before
August 7, 1946 (Matter of D , A-7211929 (December 30, 1949); Matter of
L , A-7225268 (December 30, 1949); Matter of L , (now D-1001 formerly
56254/455), A-7398294 (June 13, 1950)). There is a distinction between
those cases and this one, however, in that appellant in the present case
took the oath of renunciation and allegiance on August 7, 1946. On that
same date there became effective a newly enacted saving clause as part
of section 323 of the Nationality Act which provides as follows:
Such persons shall have, from and after naturalization under
this section, the same citizenship status as that which existed
immediately prior to its loss.
In the L case we pointed out that there was no indication that this
statute was intended to have any retroactive effect, and was therefore
of no benefit to L , who had taken his oath on February 23, 1946.
The saving clause is a part of the second paragraph added to section
323 by the act of August 7, 1946. It is our opinion that the clause
applies to persons who recover their citizenship under the first
paragraph of section 323 as well as to persons who recover their
citizenship under the second paragraph of section 323. The clause
specifically says, "from and after naturalization under this section';
it does not say, "Such person shall have from and after naturalization
under this paragraph * * *.' Appellant was a citizen of the United
States by birth before he lost his citizenship. The citizenship he
recovers must be of the same status.
Sutherland on Statutory Construction, volume I, section 1935, syas:
* * * The act or code as amended should be construed as to
future events as if it had been originally enacted in that form.
* * * The legislature is presumed to know the prior construction
of the original act or code * * *.
While the second paragraph of section 323 was enacted at a later
date, it is clear that the saving clause in that paragraph will benefit
those persons naturalized in accordance with the first paragraph, if the
entire section is read together as if it had been originally enacted in
its present form.
Sutherland says further, volume III, section 7216:
It is imperative that legislation providing for national
defense and the prosecution of war shall be liberally construed to
accomplish its important objectives. * * *
Legislation enacted for the purpose of preserving the security
and rights of those engaged and participating in defense and was
efforts must be given a broad interpretation. Thus, the Soldiers
and Sailors Civil Relief Act is given an extended interpretation.
A statute of this nature should be liberally construed in favor of
the rights of men engaged in military service absorbed by the
exacting duties required of him and unable to attend to matters of
private business. In addition, legislation undertaking to reward
and repay those who have contributed by energy and even their
lives in the service should be given unselfish construction.
Certainly if we are to apply the above principles of statutory
construction to the present case, the result would be a finding that
appellant was meant to benefit from the saving clause appended to
section 323.
Before he expatriated himself by service in the Canadian Army,
appellant was a citizen by birth, not a citizen by naturalization.
Therefore, when he was repatriated he again became a citizen by birth.
As a citizen by birth he is not subject to expatriation under section
404(b), because that section applies only to citizens by naturalization.
Order: It is ordered that the appeal be sustained and the appellant
admitted as an American citizen.
In accordance with the provisions of section 90.12(b) of title 8,
Code of Federal Regulations, this case is certified to the Attorney
General for review of the Board's decision.
(1) Sec. 101(c) of the Nationality Act of 1940 provides: "The term
"naturalization' means the conferring of nationality of a state upon a
person after birth.'
The decision and order of the Board of Immigration Appeals dated
January 25, 1951, are hereby approved.
Crime involving moral turpitude -- Section 405, New York State Penal Code -- Looking to indictment to determine whether the offense of which convicted involves moral turpitude -- "Indictment' involved, when conviction for lesser crime than indicted (N.Y.).
(1) In certain cases of crimes of which convicted, we may look to the pertinent indictment to ascertain whether moral turpitude inheres in the offense involved. (See 2, I. & N. Decs. 357, 724.)
(2) In New York State, a criminal judgment must have the support of a pleading (indictment) charging the crime adjudged (or a higher degree thereof or a crime necessarily involving or included in the crime of which sentence is imposed), and under the provisions of the Code of Criminal Procedure in New York State, when there is a conviction of a lesser offense than that charged in the indictment, the statute defining the lesser crime serves as the determinant by which the surplus is struck from the indictment.
CHARGES:
Warrant: Act of 1924 -- No immigration visa.
Act of 1917 -- Entered without inspection.
Act of 1929 -- Arrested and deported -- No permission to reapply.
Act of 1917 -- Stowaway.
Act of 1917 -- Convicted of crime prior to entry -- Breaking and entering; petty larceny.
Lodged: Act of 1917 -- Convicted of crime prior to entry -- Attempted unlawful entry (1921); burglary (1922); robbery (1922); entry with intent to steal (1924); unlawful entry (1931).
Act of 1917 -- Admits crime prior to entry -- Unlawfully entering a
building (1931); petit larceny (1936).
Discussion: This is an appeal from an order entered by the Assistant
Commissioner on August 9, 1950, directing the respondent's deportation
to Italy on the charges stated above. The respondent has filed
exceptions to the order and requests that he be permitted to remain
permanently in the United States.
The respondent, an alien, a native of Trieste, 53 years of age,
married, last arrived in the United States at the port of New York on
October 10 or 11, 1949, as a stowaway ex-S. S. Saturnia. The evidence
of record affirmatively establishes that he did not have an immigration
visa; that he entered without inspection; and that he was previously
arrested and deported from the port of New York on May 31, 1945. He has
not been granted permission to reapply for admission.
The hearing examiner in his opinion of June 24, 1950, finds the
respondent deportable on all of the charges stated above with the
exception of the lodged charges relating to the respondent's conviction
of the crime of attempted unlawful entry of a building for which he was
convicted in the State of New York in 1921 and the crime of unlawful
entry of a building of which he was convicted in 1931. The hearing
examiner concludes that these crimes did not involve moral turpitude.
The Assistant Commissioner, on the other hand, concludes that the
aforementioned crimes involve moral turpitude since in each the
indictment charges that the offense intended to be committed inside the
building was one involving moral turpitude. We deem it advisable to
reexamine the legal question involved in light of what appears at first
blush to be a conflict between our decision in Matter of G , 56122/766,
1, I. & N. Dec. 403 (January 21, 1943), and a subsequent case, Matter of
M , A-4705281 (B.I.A. May 20, 1946).
The 1921 indictment here under consideration charges the respondent
with the crime of "attempted burglary in the third degree' in that the
defendant "attempted to break and enter the store of * * * with intent
to commit therein the crime of larceny.' A plea of "not guilty' was
entered to the indictment and on May 23, 1921, the jury found him
"guilty' of the crime of "attempted unlawfully entering a building.' /1/
The 1931 indictment charges the crime of burglary, third degree, in that
the defendant "* * * did break into and enter with intent to commit some
crime therein, to wit, with intent the goods, chattels and personal
property * * * in the said shop then and there being * * * to steal,
take and carry away.' The respondent was permitted to plead "guilty' to
the crime of "unlawfully entering a building' on this occasion.
The issue here presented is a determination of whether the offenses
of which the respondent stands convicted involve moral turpitude. Since
the respondent was convicted of lesser crimes than those for which he
was indicted, we are faced with the legal problem of whether under the
law governing criminal procedure in the State of New York /2/ the court
in accepting a plea to or a jury in convicting a defendant of a lesser
degree of the crime charged or one necessarily included in the offense
charged must confine its consideration to the averments in the
indictment which are pertinent to the lesser crime or is its
consideration limited to the statutory definition of the lesser crime?
We may not go beyond the record of conviction in reaching our
conclusion as to whether the crimes of which the respondent stands
convicted involve moral turpitude. U.S. ex rel. Meyer v. Day, 54 F.(
2d) 336 (C.C.A. 2, 1931); U.S. ex rel. Robinson v. Day, 54 F.(2d) 1022
(C.C.A. 2, 1931). This can only be determined by a consideration of the
contents of the indictment, plea, verdict and sentence. U.S. ex rel.
Zaffarano v. Corsi, 63 F.(2d) 757 (C.C.A. 2, 1933). By reason of the
foregoing basic rules, the law governing criminal procedure in the State
of New York is important.
A pleading or indictment is essential to the prosecution of a crime
and to the acceptance of a plea in regard thereto under the law
regulating criminal procedure in the State of New York (Code of Criminal
Procedure, sections 4, 222, 444, and 445). Section 332 of the Code
provides for three different types of pleas: (1) A plea of guilty; (2)
a plea of not guilty; (3) a plea of a former judgment of conviction or
acquittal of the crime charged, which may be pleaded either with or
without the plea of not guilty. Section 334 provides among other things
that if the accused pleads guilty to any lesser crime than that charged
in the indictment, "the defendant pleads guilty to the crime of (naming
it).' Since February 24, 1936, the Code of Criminal Procedure has
stipulated certain requirements where the court has accepted a plea of
"guilty' to a lesser offense than that charged in the indictment. /3/
When section 342(a) was enacted, it was merely a repetitious declaration
of a power previously conferred upon the district attorney and the court
by the New State constitution /4/ with a new requirement that the
district attorney's recommendation must be in writing.
The Code of Criminal Procedure of New York State for the most part is
declaratory of the common law. McDonald v. Sobel, 272 App.Div.N.Y.
455, 461, June 1947, aff'd, 297 N.Y. 679; Dedieu v. People, 22 N.Y.
178. At common law no part of the power to accuse a person of crime or
to prosecute a person for crime was vested in a court. A fortiori a
fundamental doctrine of the common law is that a lesser plea cannot be
accepted by a court nor can there by a conviction of any crime unless
there is a pleading before it.
The case of People ex rel. Romano v. Brophy, 280 N.Y. 181 (1939), 20
N.E.(2d) 385, is illustrative of the function of a pleading under the
Code of Criminal Procedure in the State of New York. The defendant in
that case was convicted of the crime of assault in the second degree on
a plea of guilty and was sentenced to a term of from 2 1/2 to 5 years.
He was also sentenced to a further term of from 5 to 10 years for
violation of section 1944 of the penal law which provides additional
punishment where it is proven that the defendant was armed at the time
of the commission of the crime. Upon completion of his sentence for the
assault offense, he sued out a writ of habeas corpus on the ground that
a separate term had been inflicted without indictment. In this
connection the court said, "From the face of the indictment it would
appear that the prisoner pleaded guilty to second-degree assault, but it
does not recite that he is charged with the offense of carrying firearms
at the time of the commission of the crime. The notation that the
prisoner was sentenced for a violation of section 1944 of the penal law
must necessarily have been written on the indictment after the
petitioner had been sentenced and could not, therefore have constituted
advance notice to him that he was charged with the commission of this
offense as distingushed from that of second-degree assault to which he
pleaded guilty. If the case has been tried out, the facts no doubt will
appear upon which the jury finds the verdict of guilt. * * * Where a
plea has been taken the fact that the prisoner was armed may not so
clearly appear or may be denied. The judge should then conduct an
inquiry and take testimony, if necessary.' The writ was sustained and
the relator discharged from custody.
We have previously noted that the law governing criminal procedure in
the State of New York permits a conviction of any degree where the
statute defining the crime provides for several different degrees or of
any offense necessarily included in that which the defendant is charged
in the indictment. The function of the pleading under these provisions
of the Code is illustrated by the case of People v. Van Orden, 19 N.Y.
S.(2d) 938 (1940). The defendant in that case was indicted for
first-degree murder in that he "shot and killed Samuel Guthert with a
revolver.' He pleaded guilty to murder in the second degree and after a
lapse of part of his sentence he filed a motion to strike out the
additional term imposed by reason of being armed (Penal Law, sec.
1944). The court held that by reason of his plea of guilty to the
lesser offense the defendant admitted "all of the essential ingredients
of the charge, except that of deliberation and premeditation.' The court
denied the motion for the following reasons: (1) That no hearing on the
gun charge was necessary because that feature of the indictment was
admitted by the plea of guilty; (2) that even if the hearing on the gun
charge was the defendant's right, it was waived by acceptance, without
protest, of the additional penalty. The court reasoned: "Where the
nature of the plea clearly embraces an admission of shooting, and
rejects the indictment only as to the essential ingredients of murder in
the first degree, to wit: premeditation and deliberation, a special
inquiry or hearing on the question of a gun would be procedural
surplusage.'
It is apparent from the foregoing that both the pleading (indictment)
and the statutory definition of the crime adjudged must be considered by
the court when there is a conviction of a lesser crime than that charged
in the indictment. Regardless of the plea entered, a criminal judgment
as a matter of law must have the support of an indictment charging the
crime adjudged or a higher degree thereof or a crime necessarily
involving or included in the crime of which sentence is imposed (secs. 4
and 222, Code of Criminal Procedure; sec. 6, N.Y. State constitution;
People ex rel. Romano v. Brophy, supra). A plea of guilty to a lesser
crime than that charged in the indictment must necessarily be directed
to a specific crime defined by statute (sec. 334, Code of Criminal
Procedure, N.Y.). A plea of guilty to a lesser offense clearly embraces
an admission of all the elements set forth in the statutory definition
of the lesser crime and these must be pleaded in the indictment for the
greater offense. It rejects the indictment only as to the elements
contained in the statutory definition of the greater offense which are
surplus (People v. Van Orden, supra). Accordingly, under the Code of
Criminal Procedure in New York State, when there is a conviction of a
lesser offense than that charged in the indictment, the statute defining
the lesser crime serves as the determinant by which the surplus is
struck from the indictment.
The crime of unlawfully entering a building at the time of the
respondent's conviction in 1921 and 1931 was defined by section 405 of
the New York penal law as follows: "A person who, under circumstances
or in a manner not amounting to burglary, enters a building, or any part
thereof, with intent to commit a felony or a larceny, or any malicious
mischief, is guilty of a misdemeanor.'
When we considered Matter of G , 56122/766 (supra), the statute had
been amended to read, "with intent to commit a crime'. /5/ The
indictment under consideration in the G case contains six counts
charging (1) burglary in the third degree; (2) petty larceny; (3)
possession of burglar's instruments after prior conviction; (4) robbery
in the first degree; (5) assault in the second degree; (6) assault in
the second degree. G was permitted to plead guilty to the crime of
"unlawfully entering a building.'
We are of the opinion that the conclusion we reached in the G case is
supported both by the law governing criminal procedure in New York State
and the precedents interpreting the pertinent provisions of the
immigration laws. The indictment did charge the commission of crimes
involving moral turpitude in some of its counts but, on the other hand,
this is not necessarily so with regard to other counts. Cf. Guarino v.
Uhl, 107 F.(2d) 399; U.S. ex rel. Valenti v. Karnuth, 1 F.Supp. 370,
376. Since the statute defining the lesser crime (unlawful lawful
entry) serves as the determinant by which the surplus allegations in the
indictment are eliminated the plea of guilty was not necessarily an
admission that the unlawful entry was with intent to commit one of the
several crimes charged which necessarily involve moral turpitude. Under
the ruling in the Zaffarano case (supra) we were unable to go beyond the
record of conviction to ascertain the actual facts. Accordingly, under
the circumstances of the G case we were unable to determine that the
allegations in the indictment relating solely to the crime of "unlawful
entry' with intent to commit any one of several crimes charged a crime
involving moral turpitude. Conviction of a lesser offense is acquittal
of the higher offense, (People v. Wein, 196 App. Div.N.Y. 368, 370, 187
N.Y.S. 753).
The M case, (supra), however, presented a factual situation wherein
the presence or absence of moral turpitude could readily be ascertained
from the record of conviction. In that case we were concerned with an
indictment in seven counts, five of which were dismissed. The two
counts remaining charged burglary in the first and second degrees with
intent to commit larceny. The defendant was permitted to ple "guilty'
to the crime of buglary, third degree, /6/ pursuant to section 444 of
the Code of Criminal Procedure. We referred to the fact in our opinion
that intent is an element of burglary as to all degrees in New York. We
then proceeded to determine the presence or absence of moral turpitude
in the same manner as we did in the G case (supra); that is, we
eliminated the allegations in the indictment peculiar only to first-and
second-degree buglary and found remaining sufficient averments peculiar
to the statutory definition of third-degree buglary, viz, that the
defendant "did break into and enter a certain building * * * then and
there intending to commit some crime therein, to wit, the goods,
chattels and personal property of said * * * then and there being in the
said building * * * then and there feloniously and burglariously to
steal, take and carry away.' The foregoing allegations clearly charge a
crime involving moral turpitude. We concluded that M by his plea of
guilty to that portion of the indictment quoted above, was convicted of
an offense involving moral turpitude.
The two indictments under consideration in the instant case charge
the crimes of: (1) Attempted burglary in the third degree, and (2)
burglary in the third degree. Both indictments clearly state that the
attempted breaking and entering and the breaking and entering were with
intent to commit a crime inside the building, to wit: Larceny. In both
instances the respondent was convicted of crimes necessarily included in
the offense charged, to wit, attempted unlawfully entering a building
and unlawfully entering a building, pursuant to section 445, Code of
Criminal Procedure, New York. Section 405 of the New York Penal Law at
the time of the commission of both offenses required that the entry must
be "with intent to commit a felony, or a larceny, or any malicious
mischief.' Using the statutory definition of the lesser crime (unlawful
entry) as the determinant by which the surplus allegations in both
indictments are eliminated, we find that in both instances the remaining
averments charge the respondent with an attempted entry and entering
with intent to commit the crime of larceny, one of the three limiting
elements in the statute. Accordingly, under the circumstances of this
case and under the laws of New York State the records of conviction with
which we are here concerned clearly indicate that the respondent was
convicted of crimes involving moral turpitude.
The findings of fact and conclusions of law set forth in the
Assistant Commissioner's opinion of August 9, 1950, are hereby affirmed.
Order: It is directed that the appeal be and the same is hereby
dismissed.
(1) Prior to its amendment on September 1, 1935, section 405 of the
New York Penal Code defined the crime of unlawfully entering a building
as follows:
"A person who, under circumstances or in a manner not amounting to
burglary, enters a building or any part thereof, with intent to commit a
felony or a larceny, or any malicious mischief, is guilty of a
misdemeanor.'
Section 2 of the Penal Code defines an attempt as "an Act, done with
intent to commit a crime, and tending but failing to effect its
commission, is "an attempt to commit that crime.''
(2) Section 444 of the New York Code of Criminal Procedure provides:
"Upon an indictment for a crime consisting of different degrees, the
jury may find the defendant not guilty of the degree charged in the
indictment, and guilty of any degree inferior thereto, or of an attempt
to commit the crime.' Section 445 provides: "In all other cases, the
defendant may be found guilty of any crime, the commission of which is
necessarily included in that with which he is charged in the
indictment.'
(3) Section 342(a): "In any case where the court, upon the
recommendation of the district attorney, and in furtherance of justice,
accepts a plea of guilty to a crime or offense of a lesser degree or for
which a lesser punishment is prescribed than the crime or offense
charged, it shall be the duty of the district attorney to submit to the
court a statement in writing in which his reasons for recommending the
acceptance of such plea shall be clearly set forth. Such statement
shall be filed by the court with the other papers in the case and shall
be a public record subject to inspection by any person.'
(4) See New York State constitution, art. VI, sec. 11, and art. IX,
sec. 6.
(5) The offense in that case was committed on October 25, 1941, and
the statute amended September 1, 1935.
(6) Burglary, third degree: "A person who (1) with intent to commit
a crime therein breaks and enters a building, or (2) being in a building
commits a crime therein and breaks out of the same is guilty of burglary
in the third degree.'
Visa petition -- Husband-petitioner married his niece-beneficiary in Portugal (1948) -- Validity of marriage.
The marriage of uncle and niece in 1948 in Portugal being considered
valid in Portgual and the attorney general of the State of California
having indicated that the parties to such marriage would not be
prosecuted (on cohabiting in California), in the circumstances herein
outlined, the visa petition of the husband on behalf of his wife would
be approved, since it does not appear the uncle left California for
Portugal with the intention of marrying his niece.
Discussion: This matter is before us by reason of a motion filed by
counsel asking that the matter be reopened and the entire case
reconsidered on the basis of a communication from the office of the
attorney general of the State of California.
This matter was before us previously on appeal from the decision of
the Assistant Commissioner of Immigration and Naturalization,
Adjudications Division, dated September 13, 1950, wherein it was ordered
that "approval of the petition of Mr. E be revoked.'
The subject of the petition, M R E , was born in Santo Antao S.
Jorge, Azores, on September 4, 1920. She is a citizen of Portugal. On
September 27, 1948, she was married to one J or J S E , she being the
blood niece of her husband, to wit: The daughter of his sister and M B
O .
The facts in the case are set forth in decision of this Board dated
November 28, 1950. In support of the validity of the marriage between
the parties as aforesaid, there was submitted a certificate of marriage
from the civil registry of the Portuguese Republic together with a
translation of a communication from the general director of the
department of justice, Lisbon, Portugal, dated August 8, 1950, to the
effect "that the marriage celebrated between you and your uncle, * * *
notwithstanding the lack of concession of dispensation of relationship
for its consummation is fully valid under the laws of Portugal.'
There was also submitted a communication from the district attorney
of Santa Clara County, Calif., dated March 17, 1950, wherein it is
stated in substance that it would not be a violation of the law for Mr.
and Mrs. E to cohabit in California and if they do cohabit in
California, his office would not prosecute for the violation of the
California law making such marriage if contracted there unlawful.
Notwithstanding the communication of the district attorney of Santa
Clara County, Calif., section 59 of the Code of Laws of the State of
California provides that marriages between uncles and nieces are void
and section 285 of the Penal Code provides for the punishment of persons
who violate this provision of the State statute.
In the Matter of B , decided December 8, 1949, File VP-377846, this
Board indicated that the district attorney for Contra Costa, Calif. was
consultant in that case and after consideration of an opinion dated May
17, 1933, of the attorney general of California (VP-173796), that
officer stated that he could only say that if the parties cohabited in
California they could be convicted of the crime of incest.
The attorney in the instant case has submitted a letter from the
deputy attorney general of the State of California, wherein it is stated
among other things that it is his opinion that the district attorney of
Santa Clara County, Calif., has clearly stated the law applicable to the
situation in this case and that his office concurs in the views thus
expressed, to wit: That the parties would not be prosecuted in
California for violation of the California law making marriages here
contracted unlawful.
In an opinion of the Attorney General, it was held that the marriage
between an uncle and niece was lawful in Poland and as the uncle and his
niece could maintain the relationship of husband and wife at the place
of residence in Virginia, provided the uncle left Virginia for Poland
without any intention of marrying his niece, that there was no legal
ground for refusing to accept the certification of the Department of
Labor as to the wife's status.
That case is analogous to the case under consideration and inasmuch
as the attorney general of the State of California has now indicated
that the parties to the present marriage would not be prosecuted in
California in the circumstances herein outlined, it is our conclusion
that the order of November 28, 1950, should be withdrawn and that the
approval of a petition for the issuance of an immigration visa should be
reinstated.
Order: It is ordered that the order of this Board dated November 28,
1950, be withdrawn and that approval of the petition for the issuance of
an immigration visa be reinstated.
"Entry' into the United States within meaning of Immigration Laws.
An alien, who crossed the border from the United States into Mexico in 1945, procured an immigration visa thereafter under sec. 4(b) of the Immigration Act of 1924 as "an immigrant previously lawfully admitted to the United States, who is returning from a temporary visit abroad', then returned to the United States about 3 or 4 days after his departure from the United States, was held to have effected an "entry' upon his return to the United States in 1945, within the meaning of the immigration laws as a matter of law, even if full credence were given to the respondent's claim that he did not knowingly depart from the United States because of his (voluntary) drunken condition, (the evidence of record not found supporting such claim). (See 4, I & N. Dec. 126.)
CHARGE:
Warrant: Act of 1917 -- Crime within 5 years -- Assault with intent
to commit murder and robbery first degree.
Discussion: The respondent appeals to us from an order of
deportation entered by the Assistant Commissioner on October 25, 1950.
The case concerns a native and citizen of the Philippine Islands, male,
40 years of age. On April 18, 1949, he was convicted by the Superior
Court of Alameda County, Calif., of the crimes of assault with intent to
commit murder and robbery first degree. He was sentenced to serve 14
years for the one offense, and 5 years to life for the other. Both
offenses were committed on March 10, 1949.
The proceeding is based on the premise that the respondent has been
sentenced to imprisonment for a term of 1 year or more because of
conviction in this country of a crime involving moral turpitude
"committed within 5 years after the entry of the alien * * *' (8 U.S.C.
155). It is clear that he has been sentenced for such a term and that
the offenses involved the element of moral turpitude, but he raises the
issue of whether there has been an "entry' within 5 years of the
commission of the offenses of which he has been convicted.
The record establishes that he arrived in the United States in 1928
and resided here until 1945 when he crossed the border into Mexico. In
order to return he obtained an immigration visa, which was issued to him
by the American consul at Tijuana, Mexico, on December 7, 1945, under
section 4(b) as "an immigrant previously lawfully admitted to the United
States, who is returning from a temporary visit abroad.' He returned on
the day the visa was issued, being but 3 or 4 days after his departure
from the United States. Zurbrick v. Woodhead, 90 F.(2d) 991 (C.C.A. 6,
1937).
The respondent's contention, however, is that his presence in Mexico
was involuntary and hence his return to the United States was not an
"entry' within the contemplation of the immigration law. He testified
that he had been drinking and had no knowledge of how he came to be in
Mexico. His testimony is as follows:
* * * that is was through ignorance that I crossed the border,
because I was driving around southern California and I did not
know where the border was.
* * * * * * *
Q. Do I understand then that you mean to say that you did not
know you were entering Mexico when you crossed the line?
A. No.
* * * * * * *
Q. At the time you crossed the line did you notice that you
went through a large gate with a number of officials on duty?
A. I was leaning against the side of the car when the guy drove
in. I had a little bit to drink at that time and I was not
driving and I did not even know I went to Mexico until the next
day when I tried to come back and they would not let me come back,
so I had to see the American consul.
Q. When did you first know you were in Mexico?
A. The next day when I tried to come back to the States. The
hotel where I stayed had a lot of Chinese and I did not know it
was in Mexico but when I went to the immigration station the next
day I found out I was in Mexico.
In his appeal to us the respondent states:
This entry was not through my own volition or intent of mind to
go or live in Mexico. I had no concept as to where I was or how I
had arrived in Mexico at that time. When I awoke the next morning
I was positive that I was still in California, and I never for a
moment the slightest doubt otherwise.
Any "entry' into the United States within the contemplation of the
immigration law includes, with limitations as stated below, any coming
of an alien from foreign country into the United States, whether it be a
first or subsequent coming. U.S. ex rel. Volpe v. Smith, 289 U.S. 422,
1933. The fact that the absence was of short duration is of no moment,
Schoeps v. Carmichael, 177 F.(2d) 391 (C.A. 9, 1949); Zurbrick v.
Woodhead, 90 F.(2d) 991 (C.C.A. 6, 1937). Courts, however, have
determined that there is no such "entry' when it results from the
exigencies of war, or by travel on a common carrier between points
within the United States without knowledge that the route of such travel
involved a temporary crossing of the international land border, or where
freedom of action was wanting. /1/
The alien seeks to invoke an exception to the rule that return from a
foreign place involves an "entry.' Exceptions are narrowly and strictly
applied. The record shows that the situation presented here was in no
wise comparable to the precedent cases establishing the exception. The
alien represents that he was drunk and was unaware he was departing from
the United States. Voluntary drunkenness is no defense to crime (save
as to degree where premeditation or malice is involved); in torts it is
not regarded as even a mitigating circumstance; nor does it void a
contract, although it may render it voidable, not so much because of the
drunkenness of the one party as the fraud and imposition of the other.
Hence the alien must be held to the same degree of responsibility as if
he were sober when he departed from the United States. We note from the
record that the International border is conspicuously marked on the
highways thus charging any one who passes with knowledge that he is
departing from the one country and entering the other. Furthermore, we
take judicial note that principal points of ingress and egress on the
border are attended by immigration officers, and the gates are closed
during hours that officers are not in attendance.
The foregoing is based upon full credence being given the
respondent's claim that he did not knowingly depart from the United
States. Additionally we note that two hearings have been held in this
proceeding, the first on August 10, 1949, before a presiding inspector
under the practice which then prevailed, and the second on August 15,
1950, before a hearing examiner in conformity with the Administrative
Procedure Act. The testimony in the earlier hearing was introduced as
an exhibit in the later hearing pursuant to a stipulation signed by the
respondent. During the earlier hearing the respondent testified as
follows:
I first came to the United States at Seattle, Wash., on
September 14, 1928, and I was admitted for permanent residence. I
resided in the United States continuously from 1928 until 1945,
when I went to Mexico and I was in Mexico for 3 or 4 days only,
while I was waiting for my visa.
It was in the second hearing that the claim was first advanced that
it was through ignorance he had crossed the border. Respecting such
claim the hearing examiner made the following comment in his summary:
* * * it is noted that this statement that he did not know that
he was departing from the United States arises for the first time
during the present proceedings and that the respondent made no
mention of it at the original hearing on August 10, 1949. The
hearing examiner is not impressed by the statement of the
respondent and doubts his sincerity.
We think that such impression has much support. However, on both the
law and the evidence we are led to conclude that the appeal should be
dismissed.
Order: It is ordered that the appeal from the decision of the
Assistant Commissioner be dismissed.
(1) It has been determined that return to the United States under the
circumstances stated below did not involve an "entry' within the
contemplation of the Immigration law:
An alien was rescued from the ocean, after his vessel which was
engaged in coastwise travel, was torpedoed and he was taken to Cuba,
from whence he returned to the United States. The exigencies of war,
and not his voluntary act, put him on foreign soil. Delgadillo v.
Carmichael, 332 U.S. 388, 1947.
Travel by train from and to points within the United States, without
knowledge that the train crossed the International border. The intent
of a carrier, unknown to the alien, to carry him across the border and
back again should not be imputed to the alien. DiPasquale v. Karnuth,
158 F.(2d) 878 (C.C.A. 2, 1947); Matter of R R , A-3153429, B.I.A.,
January 6, 1949.
Inadvertent boarding of the wrong bus in Detroit, resulting in travel
to Windsor, Canada, from which there was an immediate return. There was
no purpose or intent to depart from the United States. Matter of P ,
B.I.A., file A-2402141, June 7, 1949.
Return from foreign service in the United States Maratime Service
during the war. The exigencies of war, and not the alien's voluntary
act, took him to foreign ports. Carmichael v. Delaney, 170 F.(2d) 239
(C.C.A. 9, 1948); Matter of D , A-5869934, B.I.A., March 7, 1950.
Return to the United States from private employment in Alaska,
pursuant to travel arrangements made by the employer at a time when war
conditions necessitated that such travel be through Canada. Matter of P
, A-5438591, B.I.A., August 9, 1949.
Attendance by a school boy at a school picnic on a Canadian beach,
under the supervision of the teacher. Compulsion and lack of freedom of
action were the controlling factors. U.S. ex rel. Valenti v. Karnuth,
1 F.Supp. 370, 1932.
Fines -- Section 20, Immigration Act of 1924 -- Failure to comply with order to detain on board -- Absolute duty. (See 3, I. & N. Decs. 165 and 174.)
(1) The duty to detain an alien seaman on board the vessel after being ordered to do so under section 20, Immigration Act of 1924 is absolute; the mere fact that the crew member voluntarily returns to the vessel before it sails is no defense, though it may be considered a mitigating factor under section 20 (supra), as amended by the act of December 19, 1944.
(2) In view of the congressional consideration of the subject and the
legislation enacted by the act of December 19, 1944, amending section 20
(supra), the decision rendered In the Matter of S. S. Aeas on June 10,
1941 (1, I. & N. Dec. 105) should no longer be applied. (See 2, I. & N.
Dec. XIV, item (i)).
Discussion: The case is now before the Board on the basis of a
motion filed by counsel asking us to reconsider our decision of May 29,
1950. In that decision we dismissed an appeal from the finding of the
Assistant Commissioner of Immigration and Naturalization that a fine
under section 20 of the Immigration Act of 1924 had been incurred.
The fine is for failure to detain on board two alien seamen. The
facts are simple. The Panamanian S. S. Norness arrived at Savannah,
Ga., on September 11, 1948. Four seamen were ordered detained on board.
At 4:30 p.m. on the day the vessel was scheduled to depart, an
immigration inspector boarded the vessel to check on the detainees. Two
of the four detainees were not then on board, but the master expressed
the thought that they would return to the vessel before the vessel
sailed. As a matter of fact, the two seamen did return to the vessel
before it sailed at 5:45 p.m. September 13, 1948, and the departure was
verified. Section 20 of the Immigration Act of 1924 requires
responsible persons named in the statute to detain on board and deport
such seamen as the Immigration and Naturalization officials require to
be so detained and deported. The requirement is not only that the
seamen be deported, but that the seamen be also detained on board the
vessel. In this instance, there is no question that the two seamen were
deported, and likewise they were not detained on board during the entire
time the vessel was in port. Because of the failure to detain the
seamen on board, the fine has been imposed.
In counsel's original argument to the Board and his argument on the
motion, he has stressed the fact that the case is substantially similar
to our decision in the Matter of S. S. Aeas, 1, I. & N. Dec. 105. In
that case, this Board held that where an alien seaman has been ordered
detained on board and deported, a fine would not lie even though the
alien escaped from the vessel if he were apprehended through the efforts
of the transportation agency and in fact deported on the vessel. We
have previously held that the Aeas decision had no application to this
case.
The Aeas case found its justification in the fact that if the action
of the transportation agency in going out and apprehending seamen who
escape after being ordered detained on board did not receive some
reward, the primary purpose of the statute, to wit: To prevent the
illegal entry of aliens in the guise of seaman, would be thwarted, and
it was there felt that from overall administrative consideration the
fine should not be imposed. That decision was rendered prior to the
amendment of section 20 of the Immigration Act of 1924 by the act of
December 19, 1944. This latter act provides that the Attorney General
may mitigate the penalties under section 20 to not less than $200 for
each seaman in respect of whom a violation of the statute occurs. The
purpose for this amendment was to give some relief to transportation
agencies where diligence and good faith were snown by the transportation
agency in attempting to comply with the order of the Immigration
authorities to detain and deport.
It cannot be doubted that the statute does, in terms, require the
detention on board of seamen where an order has been entered to so
detain, and any departure from the vessel is a violation of that order.
The reason in the Aeas case for relaxing from the literal language of
the statute, found its support only when consideration was given to the
overall and primary purpose of the legislation, to wit: To prevent the
illegal landing of aliens in the United States in the guise of seamen.
Now, Congress has considered the matter of what relief should be affored
to transportation agencies where a technical violation does occur,
notwithstanding diligence and good faith of the agency. In view of
congressional consideration of this problem, and legislation
specifically dealing with it, the reasoning in support of the Aeas case
no longer applies. Therefore, we conclude whether or not there are
distinguishing facts between this case and the Aeas case, the Aeas
decision should no longer be applied.
The question of mitigation of the fine, by regulations, is vested in
the Commissioner of Immigration and Naturalization.
Order: It is ordered that the motion for reconsideration be denied,
but that the matter be remanded to the Commissioner of Immigration and
Naturalization for consideration of the application for mitigation of
the fine.
Concurring, ROBERT M. CHARLES, Member:
Discussion: This matter is before us by reason of a motion filed by
counsel requesting reconsideration of the decision of this Board dated
May 29, 1950, wherein an appeal from the decision of the Assistant
Commissioner of Immigration and Naturalization imposing fine was
dismissed. On that occasion it was directed that the petition for
mitigation of the amount of penalty thus imposed be submitted to the
Commissioner of Immigration and Naturalization for his consideration.
While I agree with the conclusion, I wish to set forth more fully my
reasons for similarly concluding.
The proceeding previously was erroneously designated by the
Immigration and Naturalization Service on August 19, 1949, "In
Deportation Proceedings.' At that time the Assistant Commissioner of
Immigration and Naturalization, Adjudications Division, imposed a fine
in the amount of $2,000 against the Strachan Shipping Co., agents for
the S. S. Norness, which vessel arrived at Savannah, Ga., on September
11, 1948, from Dingwall, Nova Scotia, a foreign port, for violation of
section 20 of the Immigration Act approved May 26, 1924 (supra).
Section 20 of the act approved May 26, 1924 (supra), provides in part
as follows:
The owner, charterer, agent, or consignee, or master of any
vessel arriving in the United States from any place outside
thereof who fails to detain on board any alien seaman employed on
such vessel until the immigration and naturalization officer in
charge at the port of arrival has inspected such seaman (which
inspection in all cases shall include a personal physical
examination by the medical examiners), or who fails to detain such
seaman on board after such inspection or to deport such seaman if
required by such immigration and naturalization officer or the
Attorney General to do so, 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 seaman in respect of whom such
failure occurs.
The facts in this case are set forth in the decision of this Board
dated May 29, 1950, and also in the decision of the Immigration and
Naturalization Service. In connection with this decision, those facts
will be discussed again.
Subsequent to the vessel's arrival she was boarded by an immigrant
inspector and during the course of the inspection four alien crewmen, F
N and D R , and two others were found not in possession of valid
passports or other travel documents whereupon a notice to detain all
four alien seamen on board the vessel was served upon H J , master, and
R W G , Jr., a representative of the Strachan Shipping Co., agents for
the vessel as aforesaid. Receipt of the notice to so detain was
acknowledged by the master.
The proposed departure of the vessel was anticipated at 5 p.m.
September 13, 1948, for Cuba and in connection therewith an immigrant
inspector of the Savannah, Ga., office of the immigration and
naturalization Service boarded the vessel at 4:30 p.m. for the purpose
of verifying the presence on board of the four alien seamen who were
ordered detained on board. It was then ascertained that notwithstanding
the said order to so detain on board the two alien seamen hereinabove
mentioned went ashore. Both aliens returned to the vessel before it
actually sailed at 5:45 p.m., September 13, 1948. Such departure from
the vessel was violative of the order of the Service and their return to
the vessel was not in any way by reason of a subsequent apprehension on
the part of any of the persons named in the statute.
Accordingly, on September 14, 1948, notice of liability for fine
under the United States immigration laws was served upon R W G , Jr.,
representative of the Strachan Shipping Co. and receipt thereof is
acknowledged by the Strachan Shipping Co., agents.
In protest to the imposition of fine Mr. K O S , manager, operating
department, Naess, Mejlaender & Co., Inc., stated that the master,
following notice to detain on board, did everything possible to prevent
the detainees, as aforesaid, from proceeding ashore and in this
connection employed watchmen to enforce detention on board the vessel.
On the appeal it was indicated that the real party in interest is Naess,
Mejlaender & Co., Inc., managing operators of the vessel.
On the prior consideration, it was pointed out by counsel that the
principal purpose of the statute was the prevention of any alien seaman
effecting unlawful entry into the United States. It was asserted in
this connection that the seamen involved voluntarily returned to the
ship and consequently the principle enunciated in the decision of this
Board in the Matter of S. S. Aeas decided June 10, 1941, 1, I. & N.
Dec. 105 applies.
On the present motion, counsel further contends that the doctrine
mentioned in the case cited is applicable to the case at bar and
requires no extension. He emphasizes the fact that the alien seamen
returned to the vessel before departure. Counsel concedes however that
the alien seamen were not on board the vessel at the time the immigrant
inspector from the Savannah, Ga., office was checking the crew
preparatory to the vessel's departure.
The attorney maintains:
(a) The discipline maintained by the vessel was strong enough
to assure the return of the escaped seamen to sail with their
vessel, without the necessity of reapprehension. This is evident
from the fact of their return and from the master's confidence
that they would return to sail with the vessel when he learned
they were missing.
(b) The fact that the pressure to return was mental and/or
moral rather than physical should make no difference. It takes
efforts to maintain such discipline just as well as to reapprehend
seamen unwilling to return.
(c) Here, just as in the Aeas case, there is the consideration
that an adverse decision imposing a fine -- of any amount -- would
tend to discourage vessel owners from the efforts that effect the
return and departure of the seamen -- in the Aeas case, from
searching and reapprehending -- here, from maintaining the kind of
crew discipline, and determination to search and reapprehend
immediately if necessary, that assured ultimate return of any
escapees and their departure with the vessel on its scheduled
voyage.
The only justification for the decision in the Aeas case (supra),
especially when considered in conjunction with the specific provision of
section 20 of the act of 1924 (supra), where a violation had been
established, was an effort to relieve the violator from the harsh and
rigid effect thereof particularly when there had been a compliance with
the purpose of the statute, to wit: The deportation of the alien seamen
on the same voyage. By reason of the subsequent amendment of the
statute as hereinafter referred to, that justification has been remove
It was asserted by counsel on the oral argument that the case under
consideration is not distinguishable from the decision of this Board in
the Matter of S. S. Aeas (supra).
This Board pointed out in our decision that in our opinion the case
is distinguishable in that at the time the immigrant inspector checked
the crew prior to the ship's departure, the alien seamen involved were
not on board the vessel, but had departed therefrom, despite the order
to detain them on board and it was not until the said officer was
leaving the vessel that the alien seamen returned of their own volition
and not with the assistance of or any effort on the part of those whose
duty it was to so detain.
It is thus established that there was a failure to detain on board
these two alien seamen as required by statute. The most that is argued
is the discipline maintained by the vessel to assure the return of the
seamen who thus departed from the vessel in violation of the order of
detention.
Counsel indicates that the pressure to return was mental or moral
rather than physical but that this should make no difference. This is,
however, quite different because in the case of the S. S. Aeas it was
shown that there was a substantial physical effort to apprehend the
departing seamen and a continuous effort to comply with the order issued
in that case, the apprehension and subsequent deportation being due
entirely to the efforts of the persons on whom the duty imposed by
statute devolved.
The duty required by statute to detain on board and deport becomes
absolute when a notice to so detain is served upon any of the persons
mentioned and where such alien seaman effects escape or departs from the
vessel, fine has been incurred irrespective of diligence. See Lloyd
Royal Belge Societe Anonyme v. Elting, 55 F.(2d) 340; and Hamburg --
American Line v. United States, 52 F.(2d) 463.
In the case of S. S. Aeas which is cited as analogous this Board
distinctly referred to the continuing effort to apprehend the alien
seamen as well as the diligent efforts, which efforts ultimately
resulted in the apprehension and removal of the aliens from the United
States on the same vessel on which they arrived.
In the Matter of S. S. Baron Haig, 56118/590, decided by this Board
on August 26, 1943, 1, I. & N. Dec. 523, this Board held that when the
responsible parties failed to detain an alien seaman for inspection as
required by section 20 of the Immigration Act of 1924, the mere fact
that he returned to the vessel before it sailed does not constitute a
defense to liability for fine incurred under that section.
In our decisions we said:
The case of the S. S. Aeas, 56068/170 * * * is referred to. In
that case we held that the fine would not be imposed where a
seaman ordered detained on board escaped his guards, but through
the efforts of the responsible parties was apprehended, his
detention on board was resumed, and he departed with the vessel
when it sailed. That decision is not to be interpreted as a broad
inroad upon the application of section 20 of the Immigration Act
of 1924. That a seaman sailed out with the vessel on which he
came has not been made a general defense available to responsible
parties in all cases in which a fine is sought to be imposed under
section 20. The ruling in the Aeas case served the very practical
purpose of encouraging the responsible parties to try to apprehend
escaped seamen. It was not intended to be a license to such
parties to permit alien seamen to go ashore without inspection.
If such were the rule, the master or agent, willing to take a
chance that his men would return to the ship, could take the
matter of granting or denying shore leave into his own hands.
Of similar import is the decision of this Board in the Matter of S.
S. Davila decided October 30, 1943, 1, I. & N. Dec. 578. In that case,
we held that when the responsible parties permitted an alien seaman to
go ashore who has been ordered detained on board the mere fact that he
returned to the vessel before it sailed does not constitute a defense to
liability for fine incurred under section 20 of the act of 1924 (supra).
We made reference to the decision of this Board in the case of the S.
S. Baron Haig, (supra), pointing out that in that case we imposed a fine
for failure to detain the alien seamen for inspection. We said:
Notwithstanding the fact that the seamen returned to the vessel
and sailed out with it when it departed foreign, we held that the
doctrine of the Aeas case (supra), did not apply * * *. Though
that case dealt with the failure to detain a seaman on board prior
to inspection, and the instant one with a failure to detain a
seaman after the service of an order to do so, we feel that the
same reasoning should apply here. The master apparently took
matters into his own hands and permitted the seaman * * * to visit
his friend in the hospital. He thereby failed to detain this
seaman in accordance with the order served upon the responsible
parties. Though the master was motivated by humane considerations
in permitting this seaman to leave the vessel, the express terms
of section 20 of the Immigration Act of 1924 were violated by him
and the responsible parties must now be held liable therefor.
As stated in this opinion there was a lack of continuing effort to
enforce the detention of the alien seamen aboard the vessel and after
their departure to continue that effort pursuant to the duty imposed by
statute. Here, the seamen merely returned to the vessel and departed
thereon subsequent to their departure from the vessel, which departure
was violative of section 20 of the act of 1924. The time of the
seamen's absence from the vessel is merely relative, the violation being
that they left the ship despite the order to detain on board.
Of greater importance, however, in the determination of this case is
the amendment of section 20 of the act of 1924 (supra) on December 19,
1944 (58 Stat. 516, 8 U.S.C. 156), authorizing the Attorney General to
mitigate penalties for violation of the said section of the statute.
This amendment occurred subsequent to our decision in the Matter of the
S. S. Aeas (supra). We are no longer justified in following the
principle established in that case. When that decision was rendered
there was no power to mitigate the penalty imposed by statute and it was
felt that the said penalty required by statute, to wit: $1,000 for each
violation, disproportionate to the technicalities of the violation, that
it was concluded that no fine should be imposed.
The fact that the two alien seamen left the vessel subsequent to the
order to detain on board constitutes the violation even though they
later returned to the vessel of their own accord and departed thereon in
their capacity as seamen. Penalty has therefore been incurred. These
facts, however, may be considered in connection with the petition for
mitigation, which petition is of record. Mitigation is not within the
jurisdiction of this Board and the case must necessarily be remanded to
the Commissioner of Immigration and Naturalization for his further
consideration in this regard.
In view of all of the foregoing and after careful reconsideration of
all of the evidence of record as well as the representation of counsel,
it is my conclusion that the present motion must be denied.
Seventh proviso relief -- Advance exercise thereof -- Section 3 of the Immigration Act of February 5, 1917 -- Power to admit alien notwithstanding a conviction for an offense -- Discretion -- Need to determine whether offense involves moral turpitude.
In connection with an advance application for admission under the 7th
proviso to section 3 of Immigration Act of February 5, 1917, the
question of whether the offense to be waived involves moral turpitude
(theft in Italy in 1907, in this case) is not passed upon; but such
application is approached on the premise that the alien has been
convicted of an offense involving moral turpitude. The issue to be
resolved is whether there is power to grant the relief and if the alien
can meet the requirements of this provision, it is then a question of
discretion as to whether admission ought to be authorized.
Discussion: This case is before us on an appeal from the action of
the Assistant Commissioner denying an application for admission under
the provisions of the 7th proviso of section 3 of the act of 1917.
The alien in question is 63 years of age, an Italian. He lived in
this country from about 1913 or 1914, returned to Italy in 1924, and was
in the United States again from 1925 until September 1927. He was
sentenced in Italy for a period of three months and 10 days because of a
theft committed in 1907. Advance application for the alien's admission
under the 7th proviso of section 3 has been made by his son. This
application was denied by the Assistant Commissioner because the
evidence failed to show that the alien had retained domicile in the
United States after his return to Italy in 1927.
In an application for advance exercise of the 7th proviso, we are not
at liberty to go into the question of whether the offense to be waived
by the 7th proviso is one which involves moral turpitude. That matter
primarily is to be decided by the American consul before whom the alien
may apply for an immigration visa. We must approach the present
application on the premise that the alien has been convicted of an
offense involving moral turpitude. Hence, we do not pass on the issue
of whether the conviction in 1907 was for a crime involving moral
turpitude. The issue then is whether there is power to admit the alien,
notwithstanding such a conviction, under the 7th proviso of section 3 of
the act of 1917, which provides:
That aliens returning after a temporary absence to an
unrelinquished 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.
If the alien can meet the requirements of this provision, it is then
a question of discretion as to whether admission ought to be authorized.
As we have said, the Assistant Commissioner denies relief on the
ground that the alien is not technically eligible for consideration
under the 7th proviso because he is not returning to a United States
domicile. The Assistant Commissioner finds that the alien did have a
domicile in the United States up until the time of his departure in
1927, but that domicile has not been retained by him. First, we start
on the premise that there must be substantial evidence to establish that
an absence of 23 years was a temporary visit abroad. We find it
unnecessary to discuss in detail all the facts in this case, which have
been quite adequately set forth by the Assistant Commissioner in his
opinion. We would like only to point out that the alien is said to have
gone to Italy for his health in 1927, and that he regained his health
about 1929 or 1930. There is nothing in the way of tangible evidence
presented indicating an effort on the part of the alien or his family
for the alien's return to the United States until 1936, when a visa
petition for him was filed by a daughter and was approved.
It is alleged that money was left by the alien when he left the
United States, for his wife and family, who remained here, to purchase
real estate. This is given as an indication of the intention of the
alien to come back to this country. Of course, this is not at all
conclusive on the issue, since if the family were to remain here the
alien could well have felt an obligation to leave what money he could
with them to aid them financially.
It must be remembered it is not what the family here intended as to
the alien's return, but what he himself desired that is important
insofar as his retention of domicile goes. On this point we have a
report from the American consul general at Palermo dated August 18,
1949, which says that the alien stated at the consulate general that he
does not remember whether it was his intention to return to the United
States when he went to Italy in 1927, and that from 1927 to 1947 he had
never attempted to return to the United States. This statement very
effectively precludes a finding that the alien retained his domicile
here during the many years he has been living in Italy.
Order: It is ordered that the appeal be dismissed.
Suspension of deportation -- Discretionary relief -- Exercise of discretion in certain classes of cases.
An alien came here as a seaman in May 1948, intending to remain. The Central Office directed his deportation on July 27, 1950, which order was affirmed by the Board of Immigration Appeals on August 31, 1950. On August 5, 1950, he became engaged to, and on August 29, 1950, he married a United States citizen. As a recently arrived seaman who had married after institution of deportation proceedings, suspension of deportation was not deemed justified as a matter of policy and the maximum of discretionary relief indicated was voluntary departure without an order of deportation. (See 3, I. & N. Dec. 490; also see 4, I. & N. Dec. 64.)
CHARGE:
Warrant: Act of 1924 -- No immigration visa.
Discussion: The case is now before the Board on a motion filed by
the respondent through his attorney, asking that the case be reopened
for further hearing so that the respondent may apply for suspension of
deportation. The Immigration and Naturalization Service, through
counsel, has appeared before the Board in opposition to this motion.
The respondent was born in Spain on March 11, 1922, and he is now a
citizen of that country. He arrived at the port of Philadelphia, Pa.,
on May 4, 1948, on the S.S. Monte Moncayo and was admitted as a seaman
for a period not to exceed 29 days. The respondent deserted this vessel
at the port of New York May 15, 1948. According to the respondent's
testimony, he came to this country to remain permanently and find
employment. He had no immigration visa. The respondent found
employment after his entry and has been working steadily. At the
hearing, he was asked if he desired permission to leave the country
voluntarily. He replied that he would like to leave voluntarily but had
no funds with which to do so.
On these facts, the Assistant Commissioner by order of July 27, 1950,
directed deportation. On appeal to this Board, the order of the
Commissioner was affirmed August 31, 1950.
The present motion is based on the fact that the respondent was
married August 29, 1950, to a young woman who was born in Puerto Rico on
April 29, 1929. The motion papers, dated October 6, 1950, allege that
for the past 3 weeks the wife has been unemployed. The motion papers
further state that the respondent became engaged to marry his present
wife on August 5, 1950.
It will be observed that the engagement as well as the marriage
occurred after the order of the Assistant Commissioner directing
deportation. In the Matter of M , A-6429531, February 11, 1949;
approved by the Attorney General June 21, 1949, 3, I. & N. Dec. 490, the
rule was laid down that in the case of recently arrived aliens who marry
after the institution of deportation proceedings, suspension of
deportation is not justified. Counsel argues that the ruling in the
Matter of M , which sets up a class of cases where discretionary relief
will not be granted, is invalid because of the decision of the Circuit
Court of Appeals for the Second Circuit in Mastrapasqua v. Shaughnessy,
180 F.(2d) 999. The Mastrapasqua case was concerned with the validity
of a ruling of the Attorney General in the Matter of L , A-5955999 (see
Int. Dec. #225), to the effect that aliens whose presence in the United
States is due solely to the war are not to be granted preexamination.
The court held that there was no justification for this classification
either in the record in the Mastrapasqua case or in the L case. The
court observed:
There seems no more rationality in this classification than
there would be in arbitrarily refusing to consider discretionary
relief for all left-handed men or for all whose names begin with
the first thirteen letters of the alphabet. Consequently, we
conclude that the classification is capricious.
In considering the matter, the court stated that courts have no power
to review administrative discretion when it is reasonably exercised, but
in appropriate circumstances courts can compel correction of an abuse of
discretion or can compel an official to exercise his discretion where he
has obviously failed or refused to do so. The court added:
Such an obvious refusal occurs, we think, when an official sets
up a class of cases as to which he refuses ever to exercise any
discretion, one way or the other, if that class is not rationally
differentiated from other cases, not within that class, where he
uses his discretion case by case. Emphasis supplied.
We do not find that the court in the Mastrapasqua case was saying
that standards as to the exercise of discretion may not be applied by
administrative tribunals. Indeed, if there is to be impartial and
fairness of treatment, to all, standards are requisite. What the court
was saying was that administrative tribunals may not set up arbitrary
standards. The court views the standards in the L case as arbitrary and
capricious, and with no more foundation as the court said than to deny
discretion to all left-handed men or to all whose names begin with the
first thirteen letters of the alphabet.
The basis for the ruling in the Matter of M , is not arbitrary and
capricious, but on the contrary does have a definite and pertinent
bearing on immigrant enforcement. The purpose of the ruling is to
discourage aliens from entering the country illegally or remaining here
in violation of law and who may hope that marriage to a United States
citizen will result in legalizing residence. It is true because of
other considerations, the rule is limited to aliens who are recent
arrivals and marry after the institution of deportation proceedings, but
as to this class the effect of the ruling is salutary in an effort to
maintain fairness and impartiality in administration of the immigration
laws.
The instant case is a good example of the necessity for the ruling.
Here the alien entered the country in the guise of a seaman with the
deliberate intention of remaining here permanently, in violation of the
immigration laws. He would have remained here illegally if not
apprehended by the Immigration Service. His engagement to his wife, as
well as the marriage, was after the order of the Commissioner.
It is our conclusion that the ruling in the Matter of M is in no way
disturbed by the holding of the Second Circuit in the Mastrapasqua case;
and, hence, suspension of deportation is inappropriate. All new
material facts have been set forth in the motion. The ruling in the
Matter of M is broad in its scope and applies even if the marriage of
the respondent to his present wife is based primarily on mutual love and
affection. Reopening, therefore, under such circumstances would be
productive of no matter of material value either to the respondent or to
the Government, and hence application therefor will be denied.
At the hearing, counsel for the respondent said that the respondent
would accept voluntary departure without a warrant if granted. If the
respondent departs voluntarily without an outstanding order of
deportation, he may secure a preference quota immigration visa after a
petition has been filed by his wife and has been approved. Counsel for
the Immigration and Naturalization Service saw no objection to a grant
of voluntary departure without preexamination. We believe a fair
disposition of the case, in accordance with the action taken in the
Matter of M , justifies giving the alien an opportunity to depart from
the United States voluntarily without an order of deportation.
Order: It is ordered that the application for reopening of the
proceeding so that the respondent may apply for suspension of
deportation be denied.
It is further ordered that the outstanding order and warrant of
deportation be withdrawn, and that the alien be permitted to depart
voluntarily from the country, to any country of his choice, within 30
days of notification of decision, and upon consent of surety on the
bond.
Status -- Immigrant or nonimmigrant -- Section 3 of the Immigration Act of 1924 -- Test as to whether a temporary visitor for business.
An alien who, while continuing to reside in Mexico, comes across the border almost daily to pick up scrap paper here for which he pays, and who returns on the same day to Mexico where he sells the scrap paper, earning his living by such transaction, may be found under the circumstances in this case to be admissible as a nonimmigrant, i.e., a temporary visitor for business, within the meaning of section 3(2) of the Immigration Act of 1924.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 -- No immigration visa.
Discussion: The appellant, a native and citizen of Mexico, applied
for temporary admission to the United States, as a section 3(2)
nonimmigrant visitor for business. On the basis of a record of a
hearing conducted by a board of special inquiry at El Paso, Tex., on
July 15, 1950, the board found the appellant to be a nonquota immigrant,
and ordered his exclusion on the ground that he was not in possession of
an immigration visa. From that order he takes this appeal. The
district adjudication officer, in the capacity of acting district
director, recommended that the appeal be sustained. However, he stated
no reasons or grounds for the dissent from the action taken by the board
of special inquiry. Counsel for the alien filed a brief.
The appellant, who resides in Juarez, Mexico, is the operator of a
truck, daily except Sunday. He drives from Juarez to El Paso, Tex.,
every morning to buy paper scrap from the persons who have control over
the material in various stores, such as the Popular Dry Goods Co. and El
Paso Newspaper Binding Corp., also other stores and business places. He
pays for the privilege of having the material gathered and saved for
him. The appellant assists in loading the truck. When the truck is
loaded, the appellant drives it to Juarez, paying customs duty to the
Mexican authorities while en route. He exhibited receipts showing that
he had paid such import duty on at least two occasion, also receipts for
money he had received from various janitors in El Paso for scrap paper
he had purchased. Upon arriving in Juarez, the appellant sells the
paper scrap to one T L who sorts, bales, and ships the scrap to a paper
company in Chihuahua, where it is ground up and used over again. The
money the appellant receives constitutes his sole income, which he
estimated to be about 200 pesos a week. He has engaged in this pursuit
for the past year, and apparently intends to so continue indefinitely.
The appellant does not own the truck he operates. It belongs to one
S N , who permits the appellant to use the truck in the hope that the
latter will eventually purchase it. The department of sanitation in the
city of El Paso recently decided to require garbage haulers to be
licensed, but so far the appellant has not been required to procure a
license.
About 7 o'clock on the morning of July 1, 1950, while proceeding on
his way to El Paso, the appellant was stopped by an inspector of this
Service at the Santa Fe Street Bridge. After questioning the appellant,
the inspector took away the appellant's border-crossing card. When the
appellant later called to get the document he was held on July 15, 1950,
for a hearing before a board of special inquiry regarding his right of
entry on that date.
The issue presented is whether the appellant may properly be regarded
under the circumstances as qualified for admission to the United States
under section 3(2) of the Immigration Act of 1924 (8 U.S. C. 203), as a
temporary visitor for business.
At the outset, it is to be observed that the applicant is a sole
proprietor. If it be found that his activity partakes of the commercial
character which qualifies him as a visitor for "business,' the
incidental manual labor which he performs would not adversely affect his
status in that respect. A native of Mexico, who bought green peppers in
Mexico, and brought this commodity to the United States by truck,
thereafter making deliveries to this country, performing the incidental
manual labor as a sole operator, was not thereby removed from the
category of a visitor for "business': Matter of G , A-7182159 (July 1,
1949, C.O.). In that determination reliance was had upon earlier
administrative rulings that employees of truck operators, as well as the
latter, who entered the United States for the purpose of loading or
unloading commodities in this country, are admissible as visitors for
"business.' (Matter of D , 55976/55 (1937 B. R.); Central Office
letter, February 12, 1948, file 56036/739). /*/
We confront no difficulty in this case, therefore, upon the score
that the applicant's activity, as an incident to his operation as a sole
proprietor, may involve manual labor. It is not the manual labor
performed which is compensated; it is the purchase, collection, and
eventual sale of used paper stocks which affords the applicant a
revenue.
The immediate question, then, is twofold: (1) whether applicant's
activity may properly be regarded as intercourse of a commercial
character in the international field, and (2) if so, is it of a
"temporary' nature within the meaning and intent of section 3(2) of the
Immigration Act of 1924.
It is believed that an affirmative finding is required in both
respects.
(1) Applicant's activity qualifies him as a visitor for "business.'
The activity of the applicant seems to be within the limited definition
of "business' as stated by the Supreme Court in 1929 in Karnuth et al.
v. United States ex rel. Albro, 279 U.S. 231, 241; namely, that the
term "business' as used in section 3(2) is limited in application to
intercourse of a commercial character: Matter of M , 2, I. & N. Dec.
240, 241 (January 19, 1945, B.I.A.).
By regulation, this concept has been somewhat broadened. 22 C.F.R.
42.134(d) provides, in pertinent part, as follows:
The term "business' is construed as including not only
intercourse of a commercial character but also any other
legitimate activity of a temporary nature classifiable within the
ordinary meaning of the term "business,' but not classifiable as
pleasure or labor.
It has already been observed that the appellant's activity is more
and other than manual labor, and it seems proper to regard the buying
and collecting of refuse paper as "business' within the foregoing
regulation.
It is not perceived why the purchase and sale of this commodity
should be viewed differently than engaging in the sale of fish and fruit
(Matter of S , A-7118993 (1949 C.O.)); green peppers (Matter of G
above); bananas (Matter of N Y , A-6149811 (1947 C.O.)); general
merchandise (Matter of McC , A-7134304 (1949 C.O.)); advertising
(Matter of S , A-6877300 (1948 C.O.)); potatoes (Matter of C ,
A-6811403 (December 15, 1948, 3, I. & N. Dec. 407)); hay (Matter of H ,
A-7142296 (June 17, 1949, B.I.A.)); (Matter of G , A-7142287 (June 22,
1949, B.I.A.)); or engaging in customs brokerage (Matter of A ,
A-7176002 (July 28, 1949, B.I.A.)); exhibiting moving pictures (Matter
of H , A-5960372 (July 26, 1949, B.I.A.)), all of which, as indicated,
have been found to constitute "business' within section 3(2) of the
Immigration Act of 1924.
(2) The nature of the applicant's "business' is such as to render him
a temporary visitor for "business.' This consideration has apparently
presented the principal source of confusion in this case. The applicant
has been engaged in almost daily trips to the United States from Mexico
for a period of a year, and plans to continue to do so indefinitely.
Does this necessarily deprive him of the status of a "temporary
visitor'? We think not.
There is no indication that the applicant intends to abandon his
residence in Mexico or sever his connection with his domicile there.
His close and immediate family ties remain in Mexico. He returns
thereto nightly. With respect to the individual or separable entries of
the applicant into the United States in pursuit of his business, there
remains no question concerning the temporary character of each. There
is no showing that the applicant has ever sought, or has reason to seek,
to enter the United States for permanent residence. The showing is
complete that the applicant, following each temporary entry, returns to
Mexico within the allotted time, and indeed, must do so in order to
pursue his business activity.
These considerations are material because, by regulation, 22 C.F.R.
42.135(a) and (b), entitled "Evidence of temporary-visitor status,' the
factors noted are stressed as significant in determining whether the
visitor's status may be regarded as "temporary.'
But not only is the applicant's presence in the United States not
required for any continuous extended periods, it also seems clear that
the actual profits of his transactions accrue in his native country and
not in the United States. In this sense, it may not be found that the
alien is principally engaged in business in the United States; his
business partakes essentially of an international character, with its
principal situs or base in Mexico and not the United States. Hence, in
this respect, it is to be observed, he is not engaging in a business
consummated in this country in competition with our citizens under the
guise of being an alien visitor.
The two foregoing aspects of the present case, it is believed, bring
it in line with prior administrative rulings noted above, and also
distinguish it from those instances where an opposite conclusion has
been reached.
Where a Mexican national was found admissible to pursue the selling
of green peppers in the United States, at frequent intervals,
seasonably, the continuing character of this activity was held not to
deprive the applicant of the status of a temporary visitor, Matter of G
, above, since "the major portion of his time is not spent in the United
States nor his major source of income earned in the United States.'
In the S (A-6877300) case, above, the sales representative of a
Canadian advertising firm, established 6 years, was admitted as a
temporary visitor for business to solicit accounts of long standing
which would continue indefinitely in the future. In other words, the
business, as to duration, was not temporary.
In the McC -- (A-7134304) case, above, a Candian national, as the
proprietor of a general trucking business, who entered the United States
to unload fish, which he had been doing for eight years, and proposed to
continue, was found to be qualified as a temporary visitor, the
determining consideration being, that with respect to each day's entry,
a relatively short part of the working day was spent in the United
States. Hence, it was concluded, as seems to follow in the present
instance, "the transaction was of a temporary character.'
In the S (A-7118993) case, above, the business activity by a Canadian
firm operating 11 trucks comprised the sale of Canadian-bought fish in
New York with return loads of fruit bought in New York, at twice weekly
intervals. The continuing or "permanent' character of this activity did
not render the truck operators other than temporary visitors for
business.
The N Y (A-6149811) case, above, involved a Mexican national engaged
as sales agent for a Mexican banana exporting firm, who entered
frequently for 60-day periods to work with an American company to whom
his firm sold bananas, the arrangement having existed for two years, and
was expected to continue. The agent had a telephone listing in Texas;
he maintained hotel accommodations there on an annual basis. His
temporary visitor status was recognized on the ground that no intention
was shown on his part to abandon his residence in Mexico or sever his
domicile there.
The Mexican national, in Matter of C , above, was a trucker and
peddler by occupation, who, seasonably, bought potatoes in Colorado for
resale in Mexico. He had entered on some 20 occasions within a brief
period before the decision was made, and expected to so continue
thereafter, if permitted. He was held to be admissible as a temporary
visitor for business.
The Mexican customs broker in the A (A-7176002) case, above, had
subleased part of an office in the United States, displayed his business
association on the window, kept office equipment there, in connection
with spending several hours a day in the United States as a convenience
to shippers in connection with exportation of United States goods to
Mexico. He maintained his principal place of business as a licensed
Mexican customs broker in Mexico, where he and his wife and children
were domiciled. This was held to comport with the status of a temporary
visitor for business.
To sum up, it will be observed that there are present in all of these
cases three significant considerations heretofore stressed in respect of
the present case: (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 individually or
separately be of a plainly temporary nature, in keeping with the
existence of the two preceding considerations.
Contrasted with those instances where the foregoing elements are
present may be noted the three following cases. In Matter of C ,
A-6022743 (December 16, 1944 B.I.A.) the status of a temporary visitor
for "business' was refused to a magazine dealer who, for a period of 10
years on several days a week, brought in foreign magazines to deliver
and sell in the United States, such activity apparently being a major
source of his income. It is to be noted that here the accrual of
revenue occurred in the United States, and some portion of the business
in this country partook of the nature of a local vendor, having no
relation to international trade.
Of a similar nature was the case of an alien whose business pursuit
in this country comprised both the buying and selling of limes in the
United States; he was held not to be a temporary visitor for business,
Matter of G , 56107/744 (October 9, 1942 B.I.A.).
A dancer, a citizen of Canada, seeking to enter the United States
under a six-months' contract, after having completed 4 weeks under such
contract in the United States, was found to be engaged in work which is
"of a permanent rather than a temporary character': Matter of M , 2, I.
& N. Dec. 240, above. Here, the first consideration noted was at issue;
namely, the applicant's alleged "business' activity in the United
States involved a severance of foreign domicile over extended periods,
and the continuance of foreign residence was not necessary, or perhaps
even probable, in the furtherance of the applicant's dancing career in
the United States.
Consistent with the determinations which have heretofore been made,
therefore, it is concluded that the applicant is qualified for admission
to the United States as a temporary visitor for business under section
3(2) of the Immigration Act of 1924, and accordingly the appeal will be
sustained.
Order: It is ordered that the appeal be sustained and the alien
admitted as a temporary visitor for business for periods not exceeding
24 hours at any one time.
(*) Editor's note. -- Cf. as to contract labor feature, Matter of R ,
A-7177141, B.I.A., September 29, 1949 (Int. Dec. #97). Also, as to
status, see Matter of L , A-7367939, B.I.A., April 10, 1950 (Int. Dec.
#139) (telegraph operator), and Matter of M , A-6751981, C.O. September
16, 1947 (Int. Dec. #5) (domestic).
Seventh proviso relief -- Section 3 of the act of February 5, 1917 -- Discretion -- Policy -- Good moral character.
Whether an alien possesses sufficient good moral character and his case merits the favorable exercise of the discretion of the Attorney General under the seventh proviso to section 3 of the act of February 5, 1917, is determined from all the pertinent factors in the case; due consideration is given to the standards set forth by the Attorney General as well as the circumstances in each case in reaching such determination.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 -- No immigration visa.
E. O. 8766 -- No passport.
Act of 1917 -- Convicted of crimes prior to entry, to wit: Violation of Harrison Narcotic Act; and Violation of Jones-Miller Act.
Act of 1917 -- Admits crime prior to entry, to wit: Perjury.
Discussion: This matter is before us by reason of an appeal from the
decision of the Acting Assistant Commissioner of Immigration and
Naturalization, Adjudications Division, dated September 27, 1950,
wherein it was ordered that the excluding decision of the Board of
Special Inquiry be affirmed in that at the time of arrival the appellant
was an immigrant not in possession of an unexpired consular immigration
visa as required under the provisions of section 13(a) of the
Immigration Act approved May 26, 1924 (8 U.S.C., sec. 213(a)); and,
that he admitted the commission of a crime involving moral turpitude;
to wit: perjury and is therefore inadmissible because of the provisions
of section 3 of the act of February 5, 1917 (8 U.S.C., sec. 136).
Subject had no passport.
Section 13 of the act approved May 26, 1924 (supra), provides that --
no immigrant shall be admitted to the United States unless (1)
he has an unexpired immigration visa.
Section 3 of the act of February 5, 1917 (supra), provides among
other things --
That the following classes of aliens shall be excluded from
admission to the United States -- persons who admit having
committed a felony or other crime or misdemeanor involving moral
turpitude.
In the decision of the Acting Assistant Commissioner of Immigration
and Naturalization, as aforesaid, an application for the favorable
exercise of the discretion vested in the Attorney General under the 7th
proviso to section 3 of the act of February 5, 1917 (8 U.S.C., sec.
136), was denied. That section provides:
That aliens returning after a temporary absence to an
unrelinquished 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.
Counsel urges that the appellant should receive favorable
consideration under the 7th proviso to section 3 of the Immigration Act
of 1917, because of subject's long residence in the United States and
the long unrelinquished domicile to which he is returning after an
absence of less than 6 months.
The appellant G03SY G , also known as J Y arrived on a plane of the
Philippine Airlines at Honolulu, T.H., on January 19, 1949, and he later
arrived at San Francisco, Calif. on January 20, 1949, where he applied
for admission to the United States as a returning citizen thereof. He
alleged that he had been born in The Dalles, Oreg. on November 26, 1901.
In support thereof he presented a United States passport issued by the
United States Department of State on December 10, 1946 to G Y G .
On the occasion of hearing before the board of special inquiry at San
Francisco, Calif., on June 5, 1950, the appellant immediately conceded
that he was born in Ung Hing Village, Sun Wuey District, China, on
November 26, 1901, and that he is a citizen of the country of his
nativity. Alienage is thereby established. The alien subsequently
stated that when he was 16 or 17 years of age (about 1917 or 1918) he
left China for Canada, and, entered the Dominion at Vancouver, British
Columbia; that after several months in Canada he proceeded to Seattle,
Wash., in an automobile. He further stated that he effected entry into
the United States without the inspection as required by law. He
thereafter remained in the United States except as hereinafter set
forth.
On February 10, 1928, the subject of this proceeding was convicted in
the United States District Court for the Northern District of
California, Southern Division, for violations of the Harrison Narcotic
Act of December 17, 1914, and the so-called Jones-Miller Act of February
9, 1909, as amended by the act of May 26, 1922, in that on or about
January 13, 1928, he did knowingly, willfully, unlawfully, and
feloniously purchase, sell, dispense, and distribute a certain
derivative of opium; to wit, one can of morphine containing 1 ounce;
and that he did willfully, unlawfully, knowingly, feloniously and
fraudulently receive, conceal, buy, sell, and facilitate the
transportation and concealment after importation of morphine as
indicated, knowing it to have been imported contrary to law. He was
sentenced to 3 months imprisonment and to pay a fine of $1,000.
Although the appellant was excluded because of the foregoing offenses
which offenses were held by the board of special inquiry to be crimes
involving moral turpitude, this Board has consistently held that such
violations do not involve moral turpitude. Consequently, the Acting
Assistant Commissioner of Immigration and Naturalization, Adjudications
Division, properly dismissed those causes from consideration, and, with
such action we are in accord. (See U.S. ex rel. Andreachi v. Curran, 38
F.(2d) 498; also Matter of V , 56096/451, decided July 21, 1942, 1, I.
& N. Dec. 293.)
The subject also stated that he was arrested on two or three
occasions in San Francisco, Calif., but a search of the records
disclosed that the charges against him which were of a minor nature were
all dismissed in 1939 and 1942. While we do not seek to condone any of
his offenses they were not serious in the light of the circumstances
under which committed.
On June 18, 1928, the subject hereof married T K N who was admitted
to this country on November 30, 1919, as the daughter of a citizen of
the United States. It is uncontroverted she is a citizen of this
country. Of that union 4 children were born in the United States, 3
daughters and 1 son. Two daughters and 1 son are still living. One
daughter is married and the 2 remaining children, as well as the wife,
are dependent upon the appellant.
On August 27, 1948, the appellant departed from the United States on
the S.S. General Gordon from San Francisco, Calif., for Hong Kong,
China. Prior to this departure he filed an application for a United
States passport alleging in the said application, among other things,
that he was born in The Dalles, Wasco County, Oreg. At the same time in
connection with this application for a United States passport he
presented affidavits of G S , L M , and J S S . The subject alleges
that the affidavits were obtained in his behalf by one W T or W T , also
known as H B B .
Of greater moment in the case at bar is the admission by the alien of
the commission of perjury. Perjury has been held to be a crime
involving moral turpitude (see Carella v. Karnuth, 2 F.Supp. 998 (D.C.
N.Y., 1933); U.S. ex rel. Karpay v. Uhl, 70 F.(2d) 792 (C.C.A.N.Y.,
1934), cert. den. 1934, 55 S.Ct. 86, 293 U.S. 573, 79 L.Ed. 671; and
Boraca v. Schlotfeldt, 109 F.(2d) 106 (C.C.A. Ill. 1940). U.S. ex rel.
Majka v. Palmer, 67 F.(2d) 146 (C.C.A. Ill. 1933).
Referring to the admission of the commission of the offense of
perjury the record shows; the alien admits that he registered as a
voter in San Francisco, Calif., and in connection with such registration
the subject executed an affidavit wherein he claimed to be a citizen of
the United States by reason of birth in Oregon. He knew at that time
that the facts asserted on the registration were false.
Section 118 of the Penal Code of the State of California provides as
follows:
Having taken an oath that he will testify, declare, depose, or
certify, truly before any competent tribunal, officer, or person,
in any of the cases in which such an oath may by law be
administered, willfully and contrary to such oath, states as true
any material matter which he knew to be false, is guilty of
perjury.
Part 120 provides that:
No person shall be registered as a voter except by affidavit of
registration. The affidavit shall be made before the County Clerk
and shall set forth all of the facts required to be shown by this
chapter.
Part 126 provides that:
A foreign born person shall not be registered unless he proves
in the manner set forth in this Article, that he is a citizen.
Part 230 sets out the substantial form of the body of the affidavit
of registration. The pertinent portion thereof reads:
The undersigned affiant, being duly sworn, says: I will be at
least twenty-one years of age at the time of the next succeeding
election, a citizen of the United States ninety days prior
thereto, and a resident of the State one year, of the county
ninety days, and of the precinct forty days next preceding such
election, and will be an elector of this county at the next
succeeding election.
* * * * * * *
Subscribed and sworn to before me this day of , 19 .
Following the foregoing California definition the alien unqualifiedly
admitted the commission of the offense of prejury in registering as a
voter in California. (See Howes v. Tozer, 3 F.(2d) 849). That the
alien is subject to exclusion for the three reasons hereinabove set
forth, to wit, the 1st, 2d, and 4th is adequately established by the
evidence of record, including the alien's own admission of the
commission of perjury.
The appellant resided in the United States from either 1917 or 1918
when he was 16 or 17 years of age continuously until the date of his
departure on August 27, 1948. On the occasion of his last arrival he
was seeking to return to this country to his wife and children, all
citizens of the United States, and to continue operating his barber shop
at 872 Washington Street, San Francisco, Calif. The wife and two
children are dependent upon the subject for their support and
maintenance.
The Attorney General in a communication of October 16, 1950,
indicated the policy of the Department in connection with the exercise
of the discretion vested in him under the 7th proviso to section 3 of
the Act of February 5, 1917 (supra). He stated:
That the discretion thus vested should be exercised only in
exceptionally meritorious cases. "Except in unusual circumstances
the proviso should be exercised only where the alien involved has
proved good moral character for at least the preceding five years,
and it appears that the exclusion of the alien would result in
serious economic detriment to a citizen * * * who is the spouse *
* * or dependent child of such alien.'
The principal question is whether the alien possesses sufficient good
moral character to exercise favorably the discretion vested in the
Attorney General.
The offenses of perjury committed by the alien during the year of
1946 when he registered as a voter in California and also when he
applied for a United States passport alleging in both instances that he
was a native-born citizen of the United States would seem to exclude him
from favorable consideration because these offenses were committed
within the past 5 years. All of the perjurious statements, however,
fall into one pattern; namely, the effort to remain in this country and
to reside here. The narcotic violations, while not to be condoned were
committed over 22 years ago and they were of a rather technical nature.
The alien has resided in the United States for approximately 32 or 33
years prior to his temporary departure for China in 1948, and at the
time of his application for permission to reenter he was returning to
his wife and children who are all citizens of the United States. To
exclude this alien would certainly banish him from this country forever,
and at the same time a serious permanent family separation would obtain.
We recognize that this case is one not immediately within the
standards set forth by the Attorney General, yet the appellant's long
residence here, plus the family separation involved and the consequent
hardships thus presented cannot be lightly considered, and we feel they
outweigh the irregularities to which this alien resorted. Good moral
character is such character as measures up to the standard of the
average citizen of the community where the person resides. (In re Hopp,
179 Fed. 561 (D.C. Wis., 1910)). It means what the person really is,
not what he is supposed to be. (United States v. Hrasky, (1909) 88 N.E.
1031, 240 Ill. 560.)
It is our opinion that the alien possesses sufficient good moral
character, and that the case has such merit as to exercise the
discretion of the Attorney General favorably, but in so doing we feel
that the matter should be referred to him for a review of our action.
The alien is inadmissible because he requires an unexpired
immigration visa, and he also requires a passport. The appeal must
therefore be dismissed.
Order: It is ordered that the appeal from the decision of the Acting
Assistant Commissioner of Immigration and Naturalization, Adjudications
Division, dated September 27, 1950, be and the same is hereby dismissed
solely because of documentary grounds.
It is further ordered that the alien be permitted to depart from the
United States, without expense to the Government, within 60 days from
the date of this decision, such departure to be considered sufficent
compliance with the excluding decision as above.
It is further ordered that in the event the alien reapplies to the
United States in possession of appropriate documents within 3 months
after departure, that admission be authorized under the 7th proviso to
section 3 of the act of February 5, 1917 notwithstanding the admission
of the commission of perjury in connection with false registration as a
voter in the State of California, and in connection with obtaining a
United States passport, subject to revocation by the Attorney General
upon hearing in the event the alien should commit an offense of any kind
whatsoever. Preexamination is authorized.
In accordance with the provisions of 8 C.F.R., section 90.12(c), this
case is certified to the Attorney General for review of the Board's
decision.
The decision and order of the Board of Immigration Appeals dated
December 22, 1950, are hereby approved.
Marriage -- Validity of "proxy' marriage -- Provisions of section 28(n) of the Immigration Act of May 26, 1924.
In view of the provisions of section 28(n) of the Immigration Act of
May 26, 1924, that the terms of "wife' and "husband' do not include a
wife or husband by reason of a proxy marriage, the proxy marriage
celebrated abroad under the circumstances in this case, though valid
there was an insufficient basis for granting a visa petition by the
citizen spouse for a nonquota status under section 4(a) of the above act
for his alien wife. /*/
Discussion: Petitioner filed a visa petition for nonquota status
under section 4(a), act of 1924, for his wife, M B W , and daughter J E
W . Petitioner, a 23-year-old, nativeborn United States citizen, was
stationed in Italy with the United States Army from August 8, 1946, to
August 26, 1948, reentering this country at New York on September 7,
1948, aboard the S.S. General Callan.
From about February 1946 to August 23, 1948, petitioner was stationed
in Trieste and lived with beneficiary M and her family. Petitioner
stated that although he and M had considered marrying before he left
Italy, they took no actual steps toward this end. However, petitioner
said that when he learned in October 1948 that M was pregnant, he began
to plan a proxy marriage. The marriage took place on March 21, 1949, in
a Church ceremony in Trieste with petitioner being represented by an
Army friend to whom he had given a power of attorney. When the marriage
occurred, respondent was in Cheyenne Wells, Colo. Then 10 days later on
March 31, 1949, beneficiary J E was born in Trieste. Petitioner admits
that she is his child and now wishes both mother and child to join him
in the United States.
The Assistant Commissioner denied the visa petition, because section
28(n), act of 1924, excludes a wife by a proxy marriage from the general
term "wife' and also because the parties have not cohabited since the
date of the marriage.
Although proxy marriages are valid under the laws of Italy, such
marriages are not recognized by specific provision of the 1924 act.
Hence, the visa petition for wife, M , cannot be granted. However, if
the marriage is considered valid under the laws of Italy, the place
where the ceremony was performed, and the laws of the father's domicile
and the child is recognized as legitimated, then the child is a citizen.
/1/
Order: If is hereby ordered that the appeal be dismissed.
(*) Editor's note. -- In unreported Matter of L , VP-392123, C.O.
September 23, 1949, a proxy marriage abroad (Azores) celebrated on June
23, 1945 according to the rituals of the Catholic Church, recognized as
valid by the civil authorities abroad and the religious authorities,
consummated abroad (Azores) on April 29, 1948, entitled the beneficiary
husband under those circumstances to a nonquota status under sec. 4(a)
of the Immigration Act of May 26, 1924, it being held by the Central
Office that such a proxy marriage upon consummation could be recognized
as coming within the terms of the Immigration Act of May 26, 1924,
notwithstanding the language of sec. 28(n) of that act. (See Op. Sol.
of Labor, April 6, 1933, 4/3328.)
(1) The law of the lex loci celebrationis, of course, controls the
validity of proxy marriages as it does other types of marriages. Silva
v. Tillinghast, 36 F.(2d) 801 (D. Mass., 1929); Cosulich Societa, etc.
v. Elting, 66 F.(2d) 534 (C.C.A. 2, 1933). See also, Lorenzen,
Marriages by Proxy and Conflict of Laws, 32 Harvard L. Rev. 473. It
will be noted that the record reveals no lack of good faith on the part
of the parties to the proxy marriage, rather it appears to have been an
attempt to legitimate the child before birth.
Status -- Benefits under section 307(b) of the Nationality Act of 1940 to cover an absence from the United States, for naturalization purposes.
(1) The relationship of employer and employee is not precluded merely because the applicant's remuneration is based on a commission from his employer rather than on a fixed wage (in connection with an application under section 307(b) of the Nationality Act of 1940).
(2) Approval of an application (1946) for benefits under section 307(b) (supra), is not barred because of time-lapse if it was submitted timely with the necessary supporting evidence, but a request for additional information was not answered for years (1950) because the request was not received by the applicant; and in an appropriate case such approval may be for a longer period than originally requested.
(3) A civilian physician for our Air Transport Command abroad may be considered employed by or under contract with this Government, within the meaning of section 307(b) (supra).
(4) Substantial (contractive) compliance with section 307(b) (supra),
and regulations governing an application thereunder, may be found under
the circumstances here as to an application for such benefits executed
abroad on October 17, 1947, but not delivered to this Service until the
applicant's return in 1950.
Discussion: This Service, on August 28, 1950, entered an order
directing that the application of the above-named applicant for the
benefits of section 307(b) of the Nationality Act of 1940, to cover his
absence from the United States for naturalization purposes from about
July 25, 1946, to May 30, 1950, be denied. The applicant has requested
reconsideration of his application and in support thereof submitted a
statement of facts dated September 29, 1950, and personally appeared in
support of his application at the Central Office of this Service. The
application for reconsideration is presently before us for
determination.
The record discloses that the above-named applicant was lawfully
admitted to the United States for permanent residence on March 27, 1943,
at New York, N.Y. He departed from the United States on July 25, 1946,
and returned to this country on May 30, 1950, at which time he was
readmitted to the United States upon presentation of a reentry permit.
The applicant filed Declaration of Intention No. 543294 in the United
States District Court, Southern District of New York on July 8, 1943,
and his Petition for Naturalization No. 305811 in the United States
District Court, Boston, Mass., on July 5, 1950.
One May 22, 1946, prior to the applicant's departure from the United
States, he executed and filed an application for the benefits of section
307(b) of the Nationality Act of 1940 to cover his absence from the
United States for naturalization purposes from June 1946 "for about 1
year,' during which time he was to be the sales representative in
Casablanca, Morocco for the Boston Medical Supply Co. of Boston, Mass.
In support of this application the applicant submitted an affidavit
executed May 15, 1946, by Mr. Leo Appleby, treasurer of the Boston
Medical Supply Co., in which the affiant stated that the applicant was
authorized to act as sales representative for the Boston Medical Supply
Co. in French Morocco, North Africa; that the Boston Medical Supply Co.
was an American firm incorporated in the State of Massachusetts engaged
in the development of foreign trade and commerce of the United States in
the sale of medical supplies, equipment, and sundries; that the
applicant was authorized to solicit orders in behalf of the Boston
Medical Supply Co. for the sale of medical supplies, equipment, and
sundries, until notified by the company to the contrary, on the
following terms: Each order subject to the company's written
confirmation setting forth the price, quantity, and commission or other
compensation due on each sale and all merchandise to be paid for by
direct remittance in advance in United States currency, in cash, or
letter of credit.
The record indicates that this Service, on July 9, 1946, sent a
letter to the applicant at the address of the Boston Medical Supply Co.
requesting that he forward a supplementary affidavit evidencing that he
was proceeding abroad principally as an individual employed or under
contract with an American firm or corporation engaged in the development
of foreign trade and commerce of the United States and informing him
that if the solicitation of orders in behalf of the company was merely
incidental to other reasons for his trip abroad, his case would not be
within the provisions of 307(b) of the Nationality Act of 1940. During
his interrogation under oath on July 5, 1950, before an officer of this
Service, the applicant testified that he never received such letter;
that he had left Massachusetts on July 8, 1946, to go to New York and
wait for the ship which was scheduled to leave July 15.
In his statement of facts dated September 29, 1950, the applicant
alleges that from the date of his arrival at Casablanca, he gave full
time to his job as sales representative for the Boston Medical Supply
Co.; that shortly after his arrival the French Government did two things
which seriously interferred with his sales efforts: (1) It sold medical
equipment at much lower prices; and (2) It refused to grant import
licenses for all foreign products which were similar to those
manufactured by French companies; that as a result, the applicant was
able to sell only American medical equipment which did not compete with
French products and such restrictions resulted in a curtailment of
business; that in order to support his wife and son who had accompanied
him from the United States to Casablanca he accepted other employment
although continuing the original arrangement made with his American
employer, the Boston Medical Supply Co.; that that company did not
object to such additional employment for the reason that it realized
that with the imposition of the French restrictions he and his family
would starve unless additional revenue was made available and that if
the applicant did not take other employment to support himself and his
family, it would be necessary for him to return to the United States,
thus wasting all of the preliminary work already performed in exploiting
the sale of medical equipment in behalf of the Boston Medical Supply Co.
The record indicates that prior to his immigration to the United
States the subject was a practicing physician in Casablanca, Morocco,
and rendered valuable service as a medical officer to the United States
Army during the hostilities of the African campaign and to the United
States consulate. The record further indicates that in March 1947 the
applicant was asked by the United States Army Air Transport Command to
take medical care of the military personnel remaining in Casablanca;
that this request was made by the United States Army for the reason that
all medical officers of the United States Army previously stationed
there were being withdrawn and the army hospital closed; that he was
the only physician having adequate knowledge of the English language.
The applicant stated that this employment continued for some period of
time after 1948; that in the beginning this work required 6 hours a day
but this was gradually reduced as more American forces left that
vicinity; that he was paid by United States Government checks through
the United States consulate.
In support of the applicant's statement concerning his employment
with the Air Transport Command, he submitted an order dated March 6,
1947, by Colonel Birchard, Headquarters, 1252d AAF BU (inactive),
European Division, Air Transport Command stating that:
1. This is to certify that Dr. A R , general practitioner, 117,
Boulevard de Lorraine, Casablanca, FM, will take care of all
United States military personnel remaining in Casablanca from a
medical and surgical standpoint and is authorized here with to
enter Cases Air Base at any time.
The above order was signed by Curtis F. Culp, Major, MC, Base Surgeon
and by Thomas B. Nordan, Captain, Air Corps, Adjutant.
The applicant further stated that from 1947 to 1950 he was employed
as an examining physician by the United States consulate in Morocco;
that he was so employed for the reason that he was well known to the
consulate staff by reason of his previous employment as a consular
physician in Morocco from 1932 to 1943 and as a civilian medical
volunteer attached to United States Army Headquarters, Western Task
Forces during the years 1939 to 1942 when the United States armed forces
invaded Casablanca during which time he did special highly important
work for the United States Government at such risk to his own life that
he was placed on a list of protected personnel compiled by the United
States consulate since he would have had no protection in the event of
capture by the enemy. He stated that each alien he examined paid his
fee.
In support of the applicant's employment by the American consulate,
Casablanca, Morocco, the applicant submitted a certificate dated May 17,
1950, signed by Walter S. Blair, vice consul of the United States of
America, stating that:
I, Walter S. Blair, vice consul of the United States, hereby
certify that Dr. A R has been in the employ of the consulate
general as medical examining officer for the visa section from
January 1947 to date. Dr. R also treated members of the consulate
general's staff during this period.
Dr. R 's services had been highly satisfactory. This
certificate is issued in connection with Dr. R 's return to the
United States.
The applicant further stated that from 1947 to 1950 he was employed
as a surgeon by the American Export Lines, an American company. In
support of such employment the applicant submitted a letter dated May
20, 1950, on the letterhead of the American Export Lines, Inc., signed
by Marcos J. Toledano, agent, certifying that:
A G R , M.D., was employed by American Export Lines, Casablanca
Agency, as surgeon, from October 1947 to this date. In this
capacity he treated the crew on board American Export Lines
vessels, attended sick sailors on shore and in the hospitals, and
examined passengers proceeding to the United States.
Dr. R 's services were highly successful and we regret his
departure.
The applicant further stated that he was employed in Casablanca as an
examining and consulting physician from about October 1946 to 1950 by
the Socony-Vacuum Oil Co., and American company. In support of this
employment the applicant submitted a letter dated October 3, 1947, on
the letterhead of the Socony-Vacuum Oil Co. Inc., signed by its general
manager at Casablanca, certifying that:
Dr. A R is recognized by Socony-Vacuum Oil Co., Inc.,
Casablanca, Morocco, as a physician authorized to grant a
certificate of medical condition for -- and to give treatment to
the company's employees -- American, European, and native.
Dr. R has been active in this capacity on behalf of the company
since October 1946.
The applicant's continued employment with the Boston Medical Supply
Co. notwithstanding his other employment as set forth herein is
established by an affidavit by Leo Appleby, treasurer of that company,
executed June 27, 1950, stating that Dr. A R acted as their sales
representative in French Morocco from July 1946 to January 1950,
inclusive.
The record establishes that although each individual employment
required only a portion of the applicant's time, his entire time was
utilized as an employee of the several employers enumerated herein.
The applicant's employments referred to herein are further verified
by the fact that while abroad he submitted applications for extensions
of his reentry permit on six occasions (April 11, 1947, October 17,
1947, April 5, 1948, October 7, 1948, and October 13, 1949), in which
his stated reasons for requesting such extensions were that he might
continue his employment as a physician with the United States Army Air
Transport Command, American consulate, American Export Line, and the
Socony-Vacuum Oil Co., all in Casablanca.
On October 17, 1947, the applicant appeared at the office of the
consulate general of the United States of America, Casablanca, and there
executed an application for the benefits of section 307(b) of the
Nationality Act of 1940 (Form 2363). This application was sworn to by
the applicant before the vice consul. In support of this application
the applicant submitted the order of Colonel Birchard dated March 6,
1947, previously referred to herein, claiming that his continued
residence abroad was on behalf of the United States Government and would
continue for an indefinite period. The applicant stated that the
consulate did not inform him that this application was to be forwarded
to this Service, but merely told him that he had done all that was
necessary to protect his rights under the Nationality Act of 1940. This
application was not delivered to this Service until after the
applicant's return to the United States. The applicant states that he
did not forward this application immediately following its execution for
the reason that no mention was made of it at the consulate and since he
had never heard from this Service concerning his original application of
May 22, 1946, he was fearful that this second application might go
astray if he tried to forward it from Casablanca.
A third application for the benefits of section 307(b) of the
Nationality Act of 1940 (Form N-470) was executed by the applicant on
June 27, 1950, and filed with this Service on that date. This
application sought to cover the applicant's absence for naturalization
purposes for the period from July 1946 to May 30, 1950, and alleged that
the applicant's absence from the United States for such period was on
behalf of the United States Government and on behalf of American firms
engaged in the development of foreign trade and commerce. In support of
this application the applicant submitted the certifications from the
American consulate general, the United States Army Air Transport
Command, the American Export Lines, the Socony-Vacuum Oil Co., and the
Boston Medical Supply Co. previously referred to herein.
The applicant contends that had he ever been informed or of the
belief that he was jeopardizing his chance to apply for United States
citizenship by reason of his absence from the United States he would
never have remained abroad; that he was lulled into a sense of security
that he qualified for the benefits of section 307(b) when the data that
he presented to the American consulate was there accepted as qualifying
him for those benefits and no objections were raised as to his status as
an employee of the Boston Medical Supply Co.; that his employment with
the several organizations previously mentioned herein was useful and
necessary in behalf of the United States Government and organizations
connected with the development of general trade of this country; that
he felt it was his duty to remain in Morocco as there were no American
doctors present; that only the useful and urgent need of his work
abroad kept him from returning to the United States earlier; that his
return to this country in 1950 was made possible by the fact that two
American doctors came to Casablanca; one at the end of 1949, the other
in 1950, thus relieving him from his obligation to remain.
The applicant further stated that upon his return to the United
States he resumed his employment as a medical officer at the Soldiers'
Home and Hospital, Chelsea, Mass., in which institution he had been a
medical officer prior to his departure from the United States in 1946;
that his work there is devoted exclusively to the care and treatment of
the American veterans of World Wars I and II; that his license to
practice medicine was granted conditionally and required his acquiring
United States nationality not later than July 1953; that if such
nationality is not then acquired his license to practice medicine will
be revoked; and that if his application for the benefits of 307(b) is
not granted, it will be necessary for him to obtain a new declaration of
intention and he could not thereafter become a citizen of this country
until a date too late to protect his conditional license.
The application executed and filed with this Service in May 1946 was
proper in all respects and the affidavits submitted in support thereof
adequately established that the applicant's absence from the United
States was to be as an employee of an American firm for the purpose of
engaging in the development of its foreign trade and commerce. The fact
that the applicant's remuneration was based upon a commission rather
than a fixed wage does not by itself preclude the relationship of
employer and employee. Matter of K , A-6231138 (September 8, 1949);
Matter of S , A-6194840 (August 8, 1949); Matter of K , A-7613410 (May
11, 1949). The facts presented are clearly distinguishable from Matter
of D , A-6854090 (December 14, 1949) in which the alien was to look
solely to his customers for his income and not to the firm whose
merchandise he was selling. The instant case is likewise clearly
distinguishable from Matter of C , A-7068510 (January 11, 1950), in
which the alien purchased merchandise from the American firm which he in
turn resold to others his remuneration being the difference between the
price he paid for the merchandise and the price for which he resold it.
The fact that this Service by letter dated July 9, 1946, requested
additional information establishing that the applicant's employment was
his principal reason for departing from the United States, which
additional information was not submitted until after the applicant's
return to this country in 1950 due to the fact that such letter was
never received by him, does not warrant a denial of that application.
Matter of R , A-6301314 (July 31, 1950). As the application for the
benefits of section 307(b) with the necessary supporting evidence was
submitted within the time required by the regulations, it may be
approved for a period from July 1946 to an indefinite date thereafter
notwithstanding that the original period requested was only for one
year.
The approval of the application dated May 22, 1946, confers the
benefits of 307(b) upon the applicant only so long as his employment
with the Boston Medical Supply Co. constituted the principal reason for
his continued absence from the United States. From all of the evidence
of record it appears that his employment with the Boston Medical Supply
Co. ceased being his principal reason for remaining abroad on or about
March 1947 at which time by reason of certain regulations of the French
Government the applicant could no longer perform the duties for which he
had been sent to Morocco. Since his residence abroad was protected up
until March 1947 by the approval of his application executed May 22,
1946, it was necessary for the applicant to either return to the United
States within a year of March 1947 or within that period apply for and
receive the benefits of section 307(b) upon a showing that he was then
entitled to those benefits.
As noted herein the applicant executed an application for the
benefits of section 307(b) on October 17, 1947, before a consular
officer of the United States at Casablanca. This date was within the
year during which such application was required to be submitted. This
application was predicated upon the alien's employment by the United
States Army Air Transport Command and the Socony-Vacuum Oil Co. In
addition to such employment it has been established that on that date
the applicant was also employed by the United States consulate general
as a medical examining officer and by the American Export Lines, Inc.
With reference to the applicant's employment with the Air Transport
Command and the United States consulate, it is noted that the applicant
was not a member of the Armed Forces, military or civilian, and not a
civil-service employee of this Government. Nevertheless, his duties
warrant the conclusion that he was employed by or under contract with
the Government of the United States within the meaning of section 307(
b) of the Nationality Act of 1940. Matter of C , A-2941434 (1949),
where a civilian guard at a post exchange who was neither within the
civil service nor in the employ of the United States Army and whose
wages were met solely from exchange profits, was held to be "in the
employ of or under contract with the Government of the United States';
Matter of O , 2270-D-460267 (1944), where a USO entertainer who was not
a civil-service employee or a member of the Armed Forces was held to be
"in the employ of or under contract with the Government of the United
States.'
Concerning the fact that in connection with his employment with the
consulate the alien applicants for immigration who were examined by the
applicant paid his fee, attention is directed to Matter of O (supra),
wherein this Service stated:
The source of whatever compensation they receive does not
affect the capacity in which they actually serve.
Employ means "to use, to have in service, to cause to be
engaged in doing something, it does not mean to hire, but to use
whether under hire or not.'
The applicant's employment with joint distribution committee is not
being considered in the disposition of his application since it has not
been established that that organization is engaged in the furtherance of
the trade and commerce of the United States.
There can be no question but that the alien's employment with the
consulate general must have been a fact known to the vice consul before
whom the application was executed. Since the alien based this
application on his service with the Air Transport Command and in view of
his testimony that in the beginning of his employment with that command
he spent approximately 6 hours per day in such employment, the
conclusion is warranted that on October 17, 1947, his residence abroad
was occasioned principally by such employment. For the reasons
hereinbefore set forth this application although duly executed and
supported by the required document was not filed with this Service
unitil June 1950, following the subject's return to the United States.
It is to be noted that in the alien's application for an extension of
his reentry permit executed April 11, 1947, he informed this Service
that the extension was desired because of his furnishing medical and
surgical treatment to United States Army personnel remaining in
Casablanca at the request of the United States Army. This extension was
granted. In his application for extension of his reentry permit
executed October 17, 1947, the applicant stated that his continued
residence abroad was necessary by reason of his acting as a physician
for the United States Army Air Transport Command and the Socony-Vacuum
Oil Co. This application for an extension was granted. In a third
application for an extension of his reentry permit executed April 5,
1948, the applicant stated that his continued residence abroad was
required by reason of his employment as a physician for the
Socony-Vacuum Oil Co., the United States consulate, and the United
States Army Air Transport Command. This application was granted. In
the next application for an extension of his reentry permit executed
October 7, 1948, the applicant stated that his continued residence
abroad was required by reason of his employment as a physician for the
American Export Lines, the Socony-Vacuum Oil Co. and the United States
consulate. This application was granted. In the next application for
an extension of his reentry permit executed April 7, 1949, the applicant
stated that his continued residence abroad was required by reason of his
employment as a physician by the American Export Lines, the
Socony-Vacuum Oil Co., the United States consulate and the American
Joint Distribution Committee. This application was granted. In this
last application for an extension of his reentry permit executed October
13, 1949, the applicant stated that his continued residence abroad was
required by reason of his employment as a physician by the joint
distribution committee, the United States consulate, the Socony-Vacuum
Oil Co., and the American Export Lines. This application was granted.
In Matter of F , 246-D-95777 (August 17, 1942) the alien requested
advice from this Service on May 24, 1940, and June 8, 1940, as to the
effect of his contemplated departure from the United States for more
than 6 months while in the employ of this Government. He departed on
July 16, 1940, without receiving a reply and without submitting an
application. Since August 5, 1940, he has been employed with the United
States Army.
The record in the case indicated that on September 18, 1940, in
replying to one of the alien's letters this Service mailed to the alien
an application form required to be submitted in protecting residence for
naturalization purposes while residing abroad. The alien later informed
this Service that during November 1940 he executed and mailed to this
Service the application but no record of its receipt appears. On
February 20, 1942, the alien filed a new application.
The Service concluded that had the alien been promptly informed he
would have been entitled to the benefits of the statute; that his
letters to this Service contained the information essential to establish
his right to those benefits; and that the application allegedly mailed
to this Service in November 1940 should be considered as having been
received by this Service inasmuch as his other communications addressed
to this Service had been received. In view of the equities involved
this Service concluded that the case should be considered on its merits
without strict adherence to the formalities or procedure and granted the
alien the benefits of the statute to cover his absence from the United
States from August 5, 1940, to an indefinite date thereafter.
In Matter of M T , A-6266616 (August 21, 1950) the alien filed an
application on July 12, 1950, for the benefits of section 307(b) of the
Nationality Act of 1940 to cover his absence from the United States for
naturalization purposes from February 11, 1949, to May 3, 1950, while
employed abroad.
The facts in that case indicate that prior to his departure he
approached an officer of this Service for the purpose of executing Form
N-470; that the officer advised him that the execution of such an
application was unnecessary in view of his then contemplated absence of
about 6 months; that when he requested advice as to the effect of his
possible extension of absence, the officer informed him that a letter
from his company explaining the delay would "right the situation'; that
the alien's wife informed this Service by letter that her husband had
been unavoidably detained abroad and requested postponement of his
petition and stated that the applicant was looking forward to the
opportunity to file for citizenship and to "make it possible for him to
appear according to your wishes and to abide by your rules and
regulations.' These letters were not answered by this Service.
In addition, the alien's employer informed this Service by letter
concerning the necessity of the applicant's continued absence and
requested advice as to anything further that had to be done in the
matter. This letter was not answered.
Because of the equities involved in that case this Service concluded
that the applicant had constructively met the requirements of the
regulations with regard to the timely submission of an application for
the benefits of section 307(b) and his application was approved to cover
his absence from February 12, 1949, to May 3, 1950.
In Matter of H , A-6011590 (July 5, 1950), the alien executed an
application on Form N-470 on June 6, 1950, for the benefits of section
307(b) of the Nationality Act of 1940 to cover her absence from the
United States for naturalization purposes from June 7, 1948, to an
indefinite date thereafter, while employed abroad.
The record in that case indicated that the applicant on June 21,
1948, executed an application for extension of reentry permit under oath
before the vice consul of the United States of America at Bombay, India,
in which she stated that she had departed from the United States on
September 2, 1947, and in support of her application for an extension
she stated that she was employed by an American firm engaged in the
development of United States foreign trade and that she did not want to
risk losing the right to become a United States citizen or her 3 years'
continuous residence in the United States and that if her reentry permit
could not be extended without breaking the continuity of her residence
required for admission to citizenship, that the reentry permit be
returned in such time as to enable her to return to the United States
before the expiration of the reentry permit. Attached to the
application for the extension was a statement dated June 11, 1948, from
the alien's employer confirming her employment as of June 6, 1948.
The reentry permit was extended and returned to the petitioner with a
form letter containing no information as to the procedure the subject
was to follow in order to obtain the benefits of section 307(b). The
alien requested a further extension of her reentry permit advancing the
same reasons as in her first application for an extension and requesting
that if the extension would entail the breaking of the continuity of
residence required for admission to citizenship that she be so informed.
One further extension was granted and again returned to the alien with
a form letter with no information regarding section 307(b).
Because of the equities involved this Service concluded that under
the circumstances of the case the application for extension of the
reentry permit be properly considered as an application for the benefits
of section 307(b) of the Nationality Act of 1940 and since this was
mailed on June 21, 1948, and received by this Service on July 6, 1948,
prior to the expiration of 1 year following the subject's departure from
the United States, it was timely as contemplated by the appropriate
statute and could be acted upon at that time.
In Matter of W , A-6496504 (July 5, 1950), the alien executed an
application on April 20, 1950, to cover her absence from the United
States from December 1, 1948, to an indefinite date thereafter while
abroad in the employ of International Engineers, Inc.
The facts in that case indicate that prior to her departure from the
United States on December 1, 1948, the subject obtained a reentry permit
on the basis of an application dated September 27, 1948, which stated as
her reason for going abroad the fact that her employer desired that she
serve as a secretary and translator in Europe and that the firm and its
subsidiaries were engaged in the development of foreign trade and
commerce of the United States of America.
The facts further indicate that on August 1, 1949, the alien
addressed a letter to this Service transmitting her reentry permit with
a request for extension in which she inquired as to whether her absence
from the United States would delay her becoming eligible for
naturalization and expressed the belief that since she was working for
an American company, that her absence would not break the continuity of
her residence. She requested confirmation of that fact. With that
letter the alien submitted a letter from her employer in which he
confirmed her employment abroad since January 12, 1949. The reentry
permit was extended and returned to the subject without comment
concerning the effect of her extended absence on her residence for
naturalization purposes.
On December 6, 1949, the alien again requested confirmation of her
belief and on December 16, 1949, this Service informed her that if she
did not file an application for the benefits of section 307(b) prior to
the expiration of 1 year following the date of her absence, the
continuity of her residence was broken.
Because of the equities involved in that case this Service concluded
that her letter of August 1, 1949, be considered as an application for
the benefits of section 307(b) and a constructive compliance with the
requirement that such application be made prior to the expiration of 1
year following her departure from the United States. Her absence from
the United States from December 1, 1948, to an indefinite date
thereafter was approved.
The application of the subject applicant executed October 17, 1947,
was supported by documentary evidence establishing the applicant's
employment by the United States Army Air Transport Command for an
indefinite period from March 6, 1947. On the basis of the cases above
cited the conclusion is warranted that this application, although it was
not filed with this Service until after the alien's return to the United
States, plus the information supplies to this Service in the six
applications for extensions of his reentry permit be considered
substantial compliance with the statute and regulations and that the
alien be granted the benefits of section 307(b).
Order: It is ordered that the application for reconsideration be
granted.
It is further ordered, That upon such reconsideration, the order of
this Service dated August 28, 1950, be and the same is hereby withdrawn.
It is further ordered, That A R be granted the benefits of section
307(b) of the Nationality Act of 1940 to cover his absence from the
United States from July 25, 1946, to March 1947 and from October 17,
1947, to an indefinite date thereafter predicated upon his employment
with the Boston Medical Supply Co., the Socony-Vacuum Oil Co., the
American Export Lines, Inc., the United States Army Air Transport
Command, and the American consulate general all of such employment
having been performed in Casablanca, Morocco, Africa, with the
understanding that he shall prove to the satisfaction of the court
wherein his admission to United States citizenship is proposed that he
has been absent during those periods for the purposes described in the
application and shall to the satisfaction of that court overcome the
presumption raised by the statute that the continuity of residence
required for naturalization has not been broken by reason of his absence
from the United States for the period from March 1947 to October 17,
1947, an absence of more than 6 months but less than 1 year.
Crime involving moral turpitude -- Abandonment of minor child (Wisconsin).
Abandonment of a minor child in violation of section 351.30 of the Wisconsin Statutes is an offense involving moral turpitude. (See 2, I. & N. 553).
CHARGES:
Warrant: Act of 1924 -- No visa.
Act of 1917 -- Sentenced more than once to imprisonment for a year or more for crimes committed subsequent to entry, to wit: Abandonment of child or wife; larceny of domestic fowl.
Lodged: Act of 1917 -- Convicted and sentenced imprisonment year or
more for crime committed within 5 years after entry, to wit:
Abandonment of child or wife.
Discussion: This record relates to a native and citizen of Canada,
age 46, who last entered the United States at the port of Portal, N.
Dak., during 1943. At the time of that entry he was not in possession
of an immigration visa. He originally entered this country as a child
during November 1908 and has resided here since with the exception of
two short trips to Canada. No record of his original entry can be
located. The documentary charge in the warrant of arrest is sustained.
On February 4, 1944, the respondent was convicted of violating
section 351.30 of the Wisconsin statutes which relates to the
abandonment of child or wife and was sentenced to the State prison for a
term of not less than 1 and not more than 5 years. On January 25, 1949,
he was convicted of violating section 343.174 of the Wisconsin statutes
which relates to the larceny of domestic animals and was sentenced to
the State prison for a term of not less than 1 nor more than 3 years.
The Hearing Examiner has concluded that a violation of section 351.30
of the Wisconsin statutes involves moral turpitude. We agree with that
conclusion. Section 351.30 provides:
Any person who shall, without just cause, desert, or willfully
neglect or refuse to provide for the support and maintenance of
his wife in destitute or necessitous circumstances; or any person
who shall, without lawful excuse, desert, or willfully neglect or
refuse to provide for the support and maintenance of his or her
legitimate or illegitimate minor child or children under the age
of 18 years, in destitute or necessitous circumstances, shall be
guilty of a crime and on conviction thereof shall be punished by
fine not exceeding $500 or imprisonment in the State prison,
county jail, or in the county workhouse not exceeding 2 years, or
both in the discretion of the court. Proceedings under this
section may be instituted upon complaint made under oath or
affirmation by the wife or child or children, or either of them,
the superintendent or acting superintendent or other officer in
charge of public welfare agencies, the director of the department
of public welfare or case work supervisor or by any other person
or persons, or organization, against any person guilty of either
of the above named offenses.
The information upon which the respondent's conviction was predicated
charges, in pertinent part, that he "did without just cause, willfully
neglect and refused to support and maintain and provide for the support
of his minor legitimate children, Betty, Robert, Billy, Irene, Merlin,
Lawrence, Marlene, and Joseph, all under the age of 16 years and then
and there in destitute and necessitous circumstances.'
Statutes dealing with the abandonment of children have been examined
in the past both by this Service and the Board of Immigration Appeals.
In some cases the decision reached was that the statute did not involve
moral turpitude, /1/ while the statutes of other States have been held
to involve moral turpitude. /2/
An examination of the past decisions indicates that in each case
where a statute was held to be one involving moral turpitude with the
exception of the Colorado statute, the statute specifically required
that the failure to provide support be willful and that the child be in
destitute circumstances. One or the other or both of these elements
were absent in each of the cases wherein the decision was reached that
the statute under consideration was one which did not involve moral
turpitude. /3/ Although the decision based upon the Colorado statute
was that it was a statute that did involve moral turpitude, it is noted
that the statute under consideration while requiring the failure to
provide support be willful did not provide in specific terms that the
child be in destitute circumstances. The decision in that case was
based upon what the Board of Immigration Appeals found to be "the narrow
application of the Colorado statute.'
The Wisconsin statute under consideration in the instant case clearly
indicates that the failure to provide support must be willful and that
the child be in destitute or necessitous circumstances. Both elements
being present, the conclusion is warranted that that statute is one
involving moral turpitude. That the section under consideration is not
merely a "nonsupport' statute is evidenced by the fact that the
Wisconsin statutes in effect at the time of this alien's conviction for
"abandonment' contained a separate provision in section 247.095 for a
civil action compelling support by a husband which, if successful,
resulted in a judgment enforcible by contempt proceedings. The attorney
general of Wisconsin ruled that this civil statute, unlike the criminal
statute under consideration, did not legally charge the husband with
"abandonment' and no showing was required as to "destitute or
necessitous circumstances' (29 Op.Atty.Gen. 89).
Further indication that the section under consideration in the
instant case is not merely a "nonsupport' provision is the fact that it
is contained in chapter 351 which is entitled "offenses against
chastity, morality, and decency.'
Section 351.30 of the Wisconsin statutes has been on the statute
books since at least 1927 without change in the substantive provisions
of the offense. The law today was the law in 1929 and 1933. In Matter
of A , 55794/339, the then Board of Review without discussion held on
September 7, 1934, that the crime of "abandonment' under the 1929
Wisconsin statute was an offense involving moral turpitude. In Matter
of W , 55896/351, the then Board of Review held on March 21, 1936, that
the crime of "abandonment' under the 1933 Wisconsin statute was an
offense involving moral turpitude. We agree with those decisions for
the reasons set forth herein.
Upon consideration of the entire record, the findings of fact and
conclusions of law proposed by the hearing examiner and served upon the
respondent and the examining officer, are hereby adopted.
Other Factors: The respondent's father was naturalized a citizen of
the United States on January 7, 1922, during the minority of the
respondent. However, as there is no record of the respondent's
admission to the United States for permanent residence, he is not deemed
to have acquired United States citizenship through his father's
naturalization. The respondent is married to a citizen of the United
States and they are the parents of 9 children. In addition to the 2
crimes mentioned in the foregoing, he was previously convicted for
nonsupport, drunkenness as a repeater, and assault and battery. He
cannot establish that he has been a person of good moral character for
the past 5 years and there is no alternative, therefore, to ordering
that he be deported.
Order: It is ordered that the alien be deported from the United
States pursuant to law on the charges contained in the warrant of arrest
and on the following additional charge:
The act of February 5, 1917, in that on or after May 1, 1917,
he has been sentenced to imprisonment for a term of 1 year or more
because of conviction in this country of a crime involving moral
turpitude committed within 5 years after entry, to wit:
Abandonment.
(1) Matter of N , 55693/375 (E.D. Mo., 1931), Missouri; Matter of Y
, 56064/472 (B.I.A. 1941), California; Matte of S , 56080/651 (B.I.A.
1942), California; Matter of H , 56127/824 (B.I.A. 1943), Canada; and
Matter of E , 56063/394 (B.I.A. 1944), Ohio.
(2) Matter of L , 56081/222 (B.I.A., 1942), Colorado; Matter of S ,
A-1675763 (B.I.A., 1946), New York; and Matter of S , A-5510145 (C.O.,
1947), New Jersey.
(3) The Missouri statute did not require either of the two elements
mentioned. The California statute did not require the child to be in
destitute circumstances. The Canadian statute did not require that the
failure to provide support be willful. The Ohio statute did not require
either of the two elements mentioned.
Reentry permit -- Section 10(f) of the Immigration Act of 1924 -- Effect where alien not entitled to such document, inadvertently issued to him to visit abroad and return to continental United States.
A Filipino, who came to Hawaii in 1927 and resided there until 1946, when he became employed on army transports, who was never admitted to continental United States with an immigration visa, but had come to continental United States as an alien seaman and was admitted as such when he last arrived in continental United States in 1949, was issued inadvertently a reentry permit to visit abroad and return to the continental United States to which he was not entitled; the inadvertency in issuing a permit cannot give to the applicant a status denied him by law. (See 4, I. & N. Dec. 143.)
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 -- No immigration visa.
Act of 1934 -- Philippine resident of Hawaii not entitled to
admission to the mainland, without presenting an immigration visa.
Discussion: The subject of this record is a 44-year-old married
male, a native and citizen of the Philippine Islands who arrived at the
port of San Francisco, Calif., on November 2, 1950, as a passenger
aboard the S.S. President Cleveland and applied for admission to the
continental United States. He was excluded by a Board of Special
Inquiry on the grounds set forth above and has appealed from such
excluding decision.
The evidence of record establishes that the appellant was admitted to
Hawaii in 1927; that he resided there until 1946 at which time he
became employed as a seaman aboard United States army transports. The
record further establishes that the appellant was admitted to the
continental United States at the port of San Francisco, Calif., on
August 18, 1949, pursuant to section 3(5) of the Immigration Act of 1924
having arrived as a seaman aboard the U.S.A.T. Gen. Simon B. Buckner;
and that he was discharged from that vessel August 24, 1949. The
appellant testified that following his discharge he continued to reside
in the United States until his departure in November 1949 for the
purpose of visiting his sister in the Philippine Islands from which
visit he now seeks to reenter the United States.
The appellant is in possession of a reentry permit issued to him by
this Service on November 15, 1949, and which was valid to November 15,
1950. He was also in possession of a Philippine passport issued August
20, 1947, and valid until August 19, 1951, which bears a stamp notation
"This passport is not valid for travel except in necessary countries in
the pursuit of bearer's calling as a seaman.'
Although the appellant was admitted to Hawaii in 1927 as a national
of the United States, by reason of section 8(a)(2) of the act of March
24, 1934, he was and still is precluded from entering continental United
States as an immigrant without presenting an immigration visa.
Accordingly, not having entered continental United States as an
immigrant in possession of an immigration visa and not having previously
entered Hawaii in possession of an immigration visa, he had no lawful
residence in continental United States on which to predicate the lawful
issuance of a reentry permit. Accordingly, the reentry permit dated
November 15, 1949, was erroneously issued to him although such issuance
was without fraud or misrepresentation on the part of the appellant.
The sole question to be determined at this time is the applicability
to the instant case of the decision of the Board of Immigration Appeals
in Matter of V , A-6316992 (October 10, 1950, approved by the Attorney
General October 25, 1950). In that case the Board of Immigration
Appeals stated:
It is our conclusion, therefore, that as a matter of law a
reentry permit secured without fraud or misrepresentation must be
given the effect set forth in the statute (sec. 10(f), Immigration
Act of 1924), to wit: That the holder of the reentry permit is
returning from a temporary visit abroad.
In the instant case the question at issue is not whether the
appellant is returning from a temporary visit abroad but whether he had
a lawful admission to the United States for permanent residence which is
the prerequisite for the lawful issuance to him of a reentry permit.
There is no question but that he had no such lawful admission. Even if
we accept the Board's decision and conclude that "as a matter of law'
his reentry permit secured without fraud or misrepresentation
establishes that the appellant is returning from a temporary visit
abroad, which is all that Matter of V demands, he is nevertheless
inadmissible to the United States since he is not entitled to admission
on the basis of the reentry permit which he presents and to which he is
not lawfully entitled.
Upon consideration of the entire record, the findings of fact and
conclusions of law stated by the board of special inquiry at the close
of the hearing are hereby adopted. No exceptions have been submitted.
Order: It is ordered that the excluding decision of the board of
special inquiry be affirmed, without prejudice to reapplication for
admission within one year when in possession of the necessary documents.
Discussion: We agree with the conclusion reached by the Assistant
Commissioner that the applicant is inadmissible to the United States
even though in possession of a reentry permit which was not obtained
through fraud or misrepresentation.
Briefly, the facts are that the applicant, a Filipino, came from the
Philippine Islands to Hawaii in 1927. From about 1946 until 1949 the
applicant apparently was employed on army transports. He last arrived
at San Francisco on the U.S.A.T. Gen. Simon B. Buckner on August 18,
1949, and was admitted as an alien seaman. He applied for a reentry
permit to visit in the Philippines, and gave as his last arrival in the
United States his arrival at Honolulu, T.H., on November 17, 1927.
Since this arrival was verified, the permit was issued.
Section 8(a)(2) of the Philippine Independence Act, the act of March
24, 1934, provides in effect that a Filipino coming to continental
United States from the Territory of Hawaii shall not be admitted as an
immigrant unless in possession of an immigration visa. (To this there
are exceptions not pertinent to this case.)
The applicant in this case was never admitted to continental United
States with an immigration visa. Hence, he was not entitled to a
reentry permit to visit abroad and return to continental United States,
and, therefore, the reentry permit was inadvertently issued to him. The
inadvertency in issuing a permit cannot give to the applicant a status
denied him by law.
Our conclusion in this case is in no sense inharmonious with our
decision of October 10, 1950, in the Matter of V , A-6316992, approved
by the Attorney General October 25, 1950. There we pointed out that
section 10(f) of the Immigration Act of 1924 provided that a reentry
permit shall have no effect under the immigration laws, except to show
that the alien to whom it is issued is returning from a temporary visit
abroad, and held that upon the return of an alien to the United States
with a reentry permit which had not been procured by fraud or
misrepresentation nor extensions secured by the same means must be
accepted as establishing that the alien to whom it was issued is
returning from a temporary visit abroad. That issue is not involved in
the case before us.
Order: It is ordered that the appeal from the decision of the
Assistant Commissioner be dismissed.
Visa petition -- Beneficiary husband of East Indian race -- Basis for denial.
The beneficiary, who married the petitioner on April 7, 1950, is of
East Indian race (of a face indigenous to India), and must be charged to
the quota of India, as provided by section 4 of the act of July 2, 1946;
he is governed by the Department of State's priorities set up by that
act, and not by the preferences mentioned in section 6(a)(1) of the
Immigration Act of 1924; wherefore the visa petition on his behalf must
be denied.
Discussion: The subject, a native-born citizen of the United States,
has filed a petition for issuance of immigration visa in behalf of her
husband, R P P , who was born in Bombay, India, and whom she married in
the United States on April 7, 1950.
The record shows that the district director has denied the visa
petition on the ground that subject's husband is of the East Indian race
and therefore does not come within the classification of a nonquota or
preference quota immigrant by reason of subject's marriage to him. From
this decision, the petitioner, who resides in the United States, has
appealed. The record further shows that the beneficiary entered the
United States in July 1947 and departed therefrom for England on July
13, 1950.
The evidence relating to the beneficiary establishes that he is of
the East Indian race and is therefore a person of a race indigenuous to
India. Section 4 of the act of July 2, 1946 (Public Law 483, 79th
Cong., ch. 534, 2d sess.) provides "With the exception of those covered
by subsection (b), (d), (e) and (f) of section 4, Immigration Act of
1924 (43 Stat. 155; 44 Stat. 812; 45 Stat. 1009; 46 Stat. 854; 47
Stat. 656; 8 U.S.C. 204), all persons of races indigenous to India
entering the United States annually as immigrants shall be allocated to
the quota for India computed under the provisions of section 11 of the
said act. A preference up to 75 per centum of the quota shall be given
to Indians and other aliens racially eligible to naturalization born and
resident in India or its dependencies.' Section 5(a) of the said act
provides as follows: "For the purposes of section 2(4) of this act, the
term "persons of races indigenous to India' shall mean any person who is
as much as one-half of the blood of a race indigenous to India and who
is eligible to naturalization under section 303 of the Nationality Act
of 1940, as amended by section 1 of this act.'
In view of the fact that the beneficiary is of the East Indian race,
he is deemed to be a person of a race indigenuous to India.
As such, he must be charged to the quota of India, as provided by
section 4, act of July 2, 1946 (supra), and is governed by the
Department of State's priorities set up by that act and not by the
preferences mentioned in section 6(a)(1) of the Immigration Act of 1924.
In view of the foregoing, the action of the district director in
denying the visa petition is affirmed.
Order: It is ordered that the petition for issuance of immigration
visa in behalf of the subject's husband be denied.
It is further ordered, That this decision be transmitted to the
district director at Chicago, Ill., for further appropriate attention in
accordance with part 165.2(e) of title 8 of the Code of Federal
Regulations.
Discussion: This matter is before us by reason of an appeal from the
decision of the Assistant Commissioner of Immigration and
Naturalization, dated December 6, 1950.
The decision of the Assistant Commissioner of Immigration and
Naturalization correctly sets forth the law and the facts in the case,
consequently, there is no necessity for discussing them again.
We have carefully considered all of the representations as contained
in the record as well as those advanced on oral argument before this
Board and it is our conclusion that the appeal must necessarily be
dismissed.
Order: It is ordered that the appeal from the decision of the
Assistant Commissioner of Immigration and Naturalization, Adjudications
Division, dated December 6, 1950, be and the same is hereby dismissed.
"Neutral alien,' who claimed exemption from service in U.S. armed forces -- Ineligibility to U.S. Citizenship -- Sec. 3(a) of Selective Training and Service Act of 1940 -- Admissibility of lawfully admitted immigrant seeking readmission on return from temporary visit abroad -- Sec. 13(c) of the Immigration Act of 1924 -- Exercise of Seventh Proviso relief in such a case to waive a criminal bar to readmission -- Sec. 3 of the Immigration Act of February 5, 1917.
A lawfully admitted alien returning from a temporary visit abroad in Jan., 1950 may, in a proper case, be granted relief under the seventh proviso to Section 3 of the Immigration Act of Feb. 5, 1917 to waive a criminal bar to readmission, notwithstanding his having rendered himself ineligible to citizenship under Sec. 3(a) of the Selective Training and Service Act of 1940 by filing on March 8, 1945, D.S.S. Form 301 claiming exemption as a neutral alien, from service in the U. S. armed forces (See Sec. 13(c) of the Immigration Act of 1924.)
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917 -- Admits crime prior to entry -- Grand larceny.
Act of 1917 -- Convicted of crime prior to entry -- Grand larceny.
Discussion: Upon consideration of the entire record, the findings of
fact and conclusion of law made by the board of special inquiry and read
to the alien on February 1, 1950, are hereby adopted except that finding
of fact (6) and the conclusion of law are amended to show the alien was
convicted of two charges of grand larceny and finding of fact (7) is
amended to show the alien was legally admitted to the United States for
permanent residence, to wit:
Finding of Fact:
(6) That on December 17, 1937, on pleas of guilty, you were
convicted on two charges of grand larceny and sentence was
deferred; that on November 4, 1939, you were sentenced to 3
months' probation and fined $50 and compelled to pay costs in the
sum of $50 on one charge and on the other charge, you were placed
on probation for a period of 3 months to run concurrently with the
probationary period on the first charge.
(7) That you were lawfully admitted to the United States for
permanent residence at New York, N.Y., on April 3, 1928; and that
you resided in the United States continuously until your departure
for Ireland on August 17, 1949.
Conclusion of Law: That under section 3 of the Immigration Act of
1917, you are inadmissible to the United States as an alien who admits
the commission and conviction of a crime involving moral turpitude prior
to entry, to wit: grand larceny, grand larceny.
An appeal was taken but no formal exceptions were filed.
The applicant is a 40-year-old married male, native and citizen of
Ireland, who arrived at the port of New York on January 13, 1950, and
sought admission to resume his permanent residence. He was excluded by
a board of special inquiry on the grounds stated above by reason of his
convictions on pleas of guilty on December 17, 1937, on two charges of
grand larceny.
Larceny in any of its forms involves moral turpitude, Tillinghast v.
Edmead 31 F.(2d) 81 (C.C.A. 1, 1929). The alien's convictions on pleas
of guilty on December 17, 1937, therefore involve moral turpitude and he
is excludible under the Immigration Act of 1917 as one who admits and
who has been convicted of crimes involving moral turpitude prior to
entry.
Since the alien has established that he was returning after a
temporary absence, to an unrelinquished United States domicile of 7
consecutive years, consideration will be given as to whether the
discretion to admit him under the 7th proviso to section 3 of the
Immigration Act of 1917, as amended, should be exercised.
The applicant was lawfully admitted to the United States for
permanent residence on April 3, 1928. He resided in the United States
continuously until August 17, 1949, when he departed for Ireland with
the purpose of visiting his sick father. He alleges that he married one
time; that his wife is a citizen of the United States; and that he has
a 15-year-old daughter who is a citizen of the United States. The alien
alleges that he resides with his wife and daughter. The record reveals
that the alien was arrested only once and that the arrest occurred on
December 16, 1935, and was in connection with the grand larceny charges.
Report of the Identification Division of the Federal Bureau of
Investigation reveals no derogatory information other than the arrest
previously mentioned. Reports of local police authorities having
jurisdiction over the localities where the alien has resided while in
the United States, reveal no derogatory information other than the
arrest in 1935. Independent character investigations conducted by this
Service covering the past 7 years, reveals that all persons interviewed
who knew the alien commented favorably concerning him. These witnesses
include neighbors and employers. The alien's good moral character is
established by the record.
The record reveals that the alien filed an application for relief
from military service (DSS Form 301) with his local Selective Training
and Service Board on March 8, 1945. The alien testified that his reason
in seeking relief from military service was the thought he had at that
time of returning to Ireland to reside there with his family. The alien
now testified that he has given up any thought of returning to Ireland
for permanent residence and that he would fight for the United States.
The independent character investigation previously referred to reveals
that seven persons who have known the alien for at least the past 4
years felt that he appeared to be a person who is loyal to the United
States.
The applicant owns his own home. The family assets total about
$1,300 in cash and he has equity of about $14,000 in two pieces of
property. He is employed as a photographer and earns over $50 a week.
His present employer states that the applicant will be paid $60 a week
upon his return to employment and that the applicant is an honest person
who has been entrusted with responsibility of banking the revenues taken
in by three photo studios. His employer considers his character of the
best and the alien's personal life above reproach.
The alien testified that his convictions for grand larceny occurred
out of transactions where the alien supplied a customer with certain
goods owned by the firm by which the alien was employed without
invoicing the goods properly and that the purpose of not invoicing the
goods was, in effect, to extend the customer additional time to pay the
bills. The information filed in connection with the arrest reveals the
alien supplied certain goods of his employer to another person over the
period of a year. The alien testified that he has made restitution in
the amount of $600 which was involved in connection with the larcenies.
It is for the executive to determine under the foregoing facts
whether administrative discretion is properly to be invoked to enable
this otherwise inadmissible alien to rejoin his American citizen-wife
and 15-year-old, native-born daughter, resume his residence of 22 years'
standing, where he owns a home and other property, and continue a mode
and manner of living and gaining of livelihood which he has followed
through all of his adult life.
It is to be observed that the subject has placed himself, by his
voluntary action on March 8, 1945, in obtaining relief from military
service as a neutral alien through executing DSS Form 301 before his
local board, in a class made ineligible to citizenship. Section 3(a),
Selective Training and Service Act of 1940, 50 U.S.C. 303(a) provides,
as to those making such application, "but any person who makes such
application shall thereafter be debarred from becoming a citizen of the
United States * * *.' The application which this subject executed under
oath contained this sentence: "I understand that the making of this
application to be relieved from such liability will debar me from
becoming a citizen of the United States.'
Having thus placed himself voluntarily and with full knowledge in
such position with reference to his adopted country, he must be prepared
to meet the consequences of his action.
One disability imposed upon aliens ineligible to citizenship is
inadmissibility to the United States (sec. 13(c), Immigration Act of
1924, 8 U.S.C. 213(c)), unless, "admissible as a nonquota immigrant
under the provisions of subdivisions (b), (d) or (e) of section 4, * *
*.' At the present the applicant is within the first exception, being a
"lawfully admitted' immigrant "who is returning from a temporary visit
abroad' (sec. 4, act of 1924, 8 U.S.C. 204).
Section 28 of the 1924 act, supplying "General Definitions,' was
amended, as to subsection (c) (8 U.S.C. 224) by defining the term
"ineligible to citizenship' in an act approved October 29, 1945 (P.L.
205, 79th Cong.), to take note of various changes in the statutes and
particularly the Selective Training and Service Act of 1940 which
followed the World War I Selective Draft Act of similar import
theretofore referred to in section 28(c), and repealed by section 504 of
the Nationality Act of 1940 (8 U.S.C. 904).
When such amendatory bill (H.R. 390) of the 79th Congress, was before
the United States Senate, its committee on immigration, reporting
favorably, made the following comment, pertinent here (Senate Reports,
79th Cong., 1st sess., 1945, vol. 3, Calendar No. 636, Report No. 633,
October 9, 1945):
The section involved was not appropriately amended when certain
laws were enacted, such as * * * the enactment of the Selective
Training and Service Act giving neutral aliens authority to
decline service under the act, but providing that such persons
should never thereafter be eligible to naturalization. The
committee is of the opinion that any person who declined to serve
in the United States armed forces during the war on the ground of
being a citizen of a neutral country should not only be denied the
right of naturalization but if he leaves the United States he
should, likewise, be denied the right of ever returning to this
country. The inclusion of the reference to the Selective Training
and Service Act in Section 28(c) removes any doubt that these
persons might be permitted to reenter the United States. Italics
supplied.
Report No. 346 of House Reports, 79th Congress, first session, March
20, 1945, relating to H.R. 390, presents no similar comment, nor does it
in fact consider the various amendments other than generally, except to
enroll a letter from the Attorney General.
The Senate committee's remarks, because of the exception previously
noted to the general proscription of section 13(c) of the 1924 act as to
aliens "ineligible to citizenship,' may be construed as applying
literally only to those aliens who were not legally admitted immigrants,
or who, after departure, were not returning merely from a "temporary
visit abroad,' and therefore as not reaching the present case. The
language employed, however, does not seem to recognize such
qualification, couched as it is in sweeping terms, to the effect that
such a claimant "if he leaves the United States' should "be denied the
right of ever returning to this country.' The expression stands,
therefore, as an index of the legislative will, or statement of policy,
to be observed when these neutral alien claimants of exemption from
military service seek to reenter the United States.
Manifestly, such expression does not alter the effect of the
unambiguous provisions of the law which, as has been found here, do not
render the applicant inadmissible by reason of his claim of such
exemption. Such expression, however, is considered to be a measure of
the latitude to which administrative discretion may properly extend in
relaxing other excluding provisions of the statute in behalf of such
claimants who have placed themselves in the class of aliens "ineligible
to citizenship.'
It is concluded, for the foregoing reason, that the present case does
not warrant a favorable exercise of administrative discretion to relieve
the applicant of the disability which has attached by reason of his
convictions of the offenses of grand larceny on December 17, 1937, in
the Circuit Court of Genesee County, Mich. The excluding order will
therefore be affirmed.
Order: It is ordered that the excluding decision of the board of
special inquiry be affirmed.
Discussion: This case is before us on appeal from an order of the
Assistant Commissioner excluding the subject alien from admission to the
United States on the above stated charges and denying his readmission
under the 7th proviso to section 3 of the Immigration Act of 1917.
The alien, male, 42 years of age, a native and citizen of Ireland,
arrived at the port of New York on January 13, 1950, and sought
admission to resume residence. He was excluded by a Board of Special
Inquiry because of conviction upon his plea of guilty in December 1937
on two charges of larceny. The record shows that the alien was admitted
to this country for permanent residence on April 3, 1928. He resided in
the United States continuously until August 17, 1949, when he departed
for Ireland for the purpose of visiting his father who was ill. He is
married to a United States citizen and is the father of a citizen
daughter about 15 years of age. Appellant resides with his wife and
daughter.
The Assistant Commissioner has considered the question of whether the
alien should be admitted under the discretionary relief contained in the
7th proviso to section 3 of the Immigration Act of 1917. The appellant
is returning to an unrelinquished domicile of more than 7 years. His
family resides here. Except for the offense which forms the basis of
inadmissibility, he has no criminal record. He has established good
moral character. He is well regarded in his community and by his
business associates.
The Service has declined to authorize exercise of the 7th proviso to
section 3 of the act of 1917. The alien on March 8, 1945, executed DSS
Form 301 before his local draft board and thereby obtained relief from
military service as a neutral alien. By so doing, the alien placed
himself within a class ineligible to United States citizenship. The
Service argues that, once having placed himself voluntarily in such
class, the alien must be prepared to meet the consequences of his
action. The Service points out that one disability imposed upon aliens
ineligible to citizenship is inadmissibility to this country (sec. 13(
c), Immigration Act of 1924, 8 U.S.C. 213(c)) unless "admissible as a
nonquota immigrant under section 4(b), (d) or (e).' The subject is
within subsection (b) since he is a lawfully admitted immigrant who is
returning from a temporary visit abroad. He is in possession of a
passport valid to April 5, 1954; and, he surrendered a permit to
reenter which was valid to July 25, ?? He is not inadmissible to this
country.
The Service refers to a report of the Senate immigration committee
made when considering amendatory legislation (H.R. 390 of the 79th
Cong.), defining the term "ineligible to citizenship.' That committee
was of the opinion that a person declining to serve in the United States
armed forces on the ground of being a citizen of a neutral country
should not only be denied the right of naturalization, but if he leaves
the country, he should likewise be denied the right of ever returning.
The Service points out that the remarks might be construed as applying
literally only to those who were not legally admitted immigrants or who
were not returning merely from a temporary visit abroad. The Service
concedes that such would not reach the present case, but should stand as
an index of the legislative will, or statement of policy, to be observed
when an alien claiming exemption sought to reenter the United States.
The reasoning, as stated above, when used by the congressional
committee, related only to eligibility to citizenship, not to relief
under the 7th proviso. We do not believe such reasoning should be
applied here. The penalty prescribed by law by filing a Form 301 is
ineligibility to citizenship. Another -- exclusion -- should not be
added. Our laws permit a reentry of ineligibles lawfully admitted to
this country who return from a temporary visit abroad. Suspension of
deportation has been granted where an alien refused to serve in the
United States armed forces. Matter of G , A-2146468 (October 9, 1947);
and to certain aliens, Japanese, etc., who are ineligible to
citizenship. It is our conclusion that the appeal should be sustained
and the alien admitted under the 7th proviso.
Order: It is ordered that pursuant to the discretion contained in
the 7th proviso to section 3 of the Immigration Act of 1917, the alien
be admitted to the United States for permanent residence at New York,
N.Y., notwithstanding his inadmissibility as one who admits the
commission of and was convicted of a crime involving moral turpitude, to
wit: Grand larceny, committed in 1935, subject to revocation in the
discretion of the Attorney General, after hearing, if the alien
hereafter commits any crime.
In accordance with the provisions of Title 8, Code of Federal
Regulations, section 90.12, this case is certified to the Attorney
General for review of this Board's decision.
The decision and order of the Board of Immigration Appeals dated
August 20, 1951, are hereby approved.
Crime involving moral turpitude -- Tax "evasion' -- Violation of sections 396 and 401 of the German Tax Code.
An intent to defraud is not an element of the offense involved here (April 4, 1949), which deals with tax "evasion' in Germany in violation of sections 396 and 401 of the German Tax Code, and therefore this crime (as defined in sec. 396, supra) does not involve moral turpitude. (Editor's note. -- Same conclusion reached in unreported Matter of W , A-7394110, B.I.A. December 12, 1950, and Matter of B , A-7376152, B.I. A. December 1, 1950).
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917 -- Convicted of and admits crime -- Defrauding German
Government of revenue.
Discussion: This record is before us on appeal from an order entered
by the Assistant Commissioner on May 24, 1950, affirming the appellant's
exclusion on the above-stated criminal charge. Counsel excepts to the
order on the ground that no crime has been committed by the appellant.
The appellant is a native and citizen of Poland, 28 years of age,
married, who, together with his wife, seeks admission to the United
States as a displaced person for permanent residence under the act of
June 25, 1948. Both are in possession of quota immigration visas issued
by the American consul at Munich, Germany, on February 23, 1950. The
Assistant Commissioner made no final decision in the case of the
appellant's wife for the reason that she did not appear before the board
of special inquiry and their decision was rendered against her in
absentia.
The appellant has been found inadmissible to the United States under
the provisions of section 3 of the Immigration Act of 1917 as a person
who has been convicted of a crime involving moral turpitude. A
certified extract of the court record showing his conviction by a
magistrate's court at Augsburg, Germany, April 5, 1949, for violation of
sections 396 and 401 of the German Tax Code, "in that the accused on or
about April 2, 1949, at Augsburg, purchased and was in possession of
four cartons of untaxed chocolate, thereby depriving the state of its
revenues,' has been entered in the record as exhibit 1.
The pertinent sections of the German law under which the appellant
was convicted, including both the German text and an English translation
thereof, are also a part of the record. We note that the translation of
sections 396 and 401, cited in the opinion under consideration, differs
in many respects from that found alongside the German text in exhibit 2.
Since the offense as described by the German statute must be judged by
standards prevailing in the United States, /1/ a correct, uniform, legal
translation is of primary importance. The following is a translation of
the statutory provisions of the German Tax Code (Reichsabgabenordnung)
cited in the extract of the court record. It was prepared by the staff
of the Foreign Law Section of the Law Library of Congress. The text of
each section is translated as in force when the offense was committed
and punishment imposed. /2/
SECTION 396. (1) Whoever contrives unjustified tax advantages
to his own benefit or the benefit of another, or intentionally
causes tax revenue to be diminished, shall be punished by a fine
for tax evasion. There shall be no limitation as to the highest
amount of the fine. In addition to the fine, imprisonment for not
more than two years may be imposed.
(2) Whoever is granted exemption from taxes or a tax advantage
and uses things for which these were granted for any other purpose
than the one for which the grant was made, and for his own benefit
or the benefit of another intentionally fails to notify the tax
collector's office in due time in advance, shall also be guilty of
tax evasion.
(3) It shall suffice that because of the act a lesser tax has
been assessed or an unjustified tax advantage has been granted or
approved, it shall be irrelevant for the punishment if the amount
to be assessed in any event should have been reduced for other
reasons or the tax advantage could have been claimed for other
reasons.
(4) Failure to comply with the tax regulations shall be
punished as tax evasion only in instances where reduction in tax
revenue or the realization of unjustified tax advantages are
obtained by the intentional violation of duties imposed upon the
offender in the interest of a proper assessment of taxes.
(5) Tax evasion may also be committed with regard to
merchandise, the import, export or transit of which is unlawful.
SECTION 401. (1) In case of conviction for tax evasion
confiscation of the products subject to taxation or the
merchandise subject to duty in regard to which tax evasion has
been committed, as well as of the means of transportation which
the offender has used in committing the act shall be imposed, in
addition to the fine or the term of imprisonment imposed. Means
of transportation engaged in general traffic and operating
independently from instructions of passengers or users shall not
be subject to such confiscation under the preceding sentence.
(2) If confiscation of the products or merchandise is not
feasible, a deposit of an amount representing their value shall be
decreed and if that value cannot be determined, payment of a sum
not more than RM100,000 shall be imposed.
The Assistant Commissioner concludes that the appellant has been
convicted of a crime involving moral turpitude. This conclusion was
reached using the following translation of the pertinent portions of
paragraphs 1 and 4 of section 396 of the German Tax Code:
(1). Anyone who for his own advantage or the advantage of
another surreptitiously obtains unauthorized tax benefit or
exemption or intentionally causes tax receipts to be diminished,
will be punished by a fine for tax fraud. * * *
4. A tax evasion may be punished as a tax fraud only if the
reduced tax revenue, or the acquisition of unjustified tax
advantages is effected in a manner that shows that the offender
intentionally violates duties which he must fulfill in order to
determine the tax assessment.
The Assistant Commissioner reasoned, and properly so, that the
offense defined by the above-cited translation involves an evil intent
to defraud the German Government of tax revenues and therefore is
turpitudinous. Prior to the receipt of the translation prepared by the
Law Library of Congress (supra), we tentatively arrived at the same
conclusion. /3/ However, when the variations in translation became
apparent to us, we realized that in order to judge the offense by
standards prevailing in the United States it was necessary to have
before us an English version of the German text prepared by one familiar
with the jurisprudence of both countries. Past experience has shown us
that the staff of the Foreign Law Section of the Law Library of Congress
is best suited to perform this task.
The immigration laws require that the crime committed by the alien
involve moral turpitude. The offense of tax evasion is defined in the
first sentence of paragraph 1 of section 396 (supra). It reads,
"Whoever contrives unjustified tax advantages to his own benefit or the
benefit of another, or intentionally causes tax revenue to be
diminished, shall be punished by a fine for tax evasion.' Paragraph 4 of
the same section limits the punishment for tax evasion to those who
intentionally violated a duty imposed by the tax regulations, thereby
reducing the tax revenues or realizing an unjustified tax advantage.
The verb "contrives,' as defined by Webster's New International
Dictionary, means "to devise; to plan; to plot.' An intentional
violation of a duty imposed by regulation is to be distinguished from an
intent to defraud even though the offender may have realized an unjust
tax advantage or caused a reduction in tax revenue.
We find upon reconsideration in light of the translation submitted to
us that intent to defraud is not an element of the offense. It is in
the criminal intent that moral turpitude inheres. U.S. ex rel. Meyer
v. Day, 54 F.(2d) 336 (C.C.A. 2, 1931). Under the German statute all
that must be shown to establish guilt is that the accused intentionally
devised, planned, or plotted a tax advantage to his own benefit or the
benefit of another or intentionally caused the tax revenue to be
diminished, thereby violating a duty imposed by a tax regulation. It
has been held that tax evasion in the absence of any intent to defraud
the government of revenue is not a crime involving moral turpitude.
United States v. Corrollo, 30 F.Supp. 3, D.C. Mo. (1939). Judge Otis
in commenting on the turpitudinous nature of the offense of tax evasion
said, "The number of men who have at some time sought to evade the
payment of a tax or some part of a tax to some taxing authority is
legion. Any man who does that should be punished civilly or by criminal
sentence, but to say that he is base or vile or depraved is to misuse
words.' Accordingly, under the standards prevailing in the United
States, the crime defined in section 396 of the German Tax Code does not
involve moral turpitude.
We find no merit to counsel's argument that the conduct in question
does not constitute a crime since it is well settled that where a record
of conviction is introduced in the proceedings, the nature of the crime
is conclusively established by that record. It is not permissible to go
behind the record of conviction to determine the purpose, motive, or
knowledge as indicative of moral character. This rule precludes inquiry
outside the record of conviction as to facts favorable and unfavorable
to the alien. U.S. ex rel. Robinson v. Day, 51 F.(2d) 1022 (C.C.A. 2,
1931); U.S. ex rel. Mylius v. Uhl, 203 Fed. 152, 154 (S.D.N.Y. 1913,
aff'd. 210 Fed. 860).
Order: It is directed that the appeal be and the same is hereby
sustained, the appellant to be admitted when in possession of the proper
documents.
(1) 39 Op.Atty.Gen. 95 (1937).
(2) Sec. 396 of the German Tax Code has been amended several times.
The last amendment was April 20, 1949, 15 days subsequent to the
appellant's trial on April 5, 1949.
(3) Matter of R , A-7290361 (February 24, 1950); Matter of A G ,
A-7366174 (June 27, 1950); Matter of M K , A-7427459 (September 8,
1950).
Editor's note. -- In unreported Matter of P , A-7849415, B.I.A.
December 22, 1950, a conviction (August 1949) in the U.S. Military Court
for Germany, for violation of sec. (pars.) 396, 401, and 403 of the
German tax law, in that she "unlawfully for her own profit,
intentionally cause the collection of taxes to be diminished, to wit:
did buy and dispose of 17.5 kg. of chocolate * * *, taxable items for
which she failed to pay taxes, and/or for which she knew or could
reasonably assume under the circumstances taxes have been evaded', was
held not to involve moral turpitude, the Board of Immigration Appeals
referring to the above interim decision and stating:
"Violation of sec. 403 was not considered in Matter of R (supra).
That section states that a person is guilty of dealing in smuggled
goods, if he buys, takes as security, acquires, conceals, or sells for
his advantage, products or commodities, in respect to which a
consumption tax or customs duty has been evaded or a boundary has been
infringed upon. As counsel for the alien points out, this section
pertains to one who has been an accomplice, and to the penalty for the
offense. On the basis of our holding that a violation of 396 does not
involve moral turpitude, we hold that a violation of sec. 403 does not
involve moral turpitude.'
Previous arrest and deportation -- Ground of inadmissibility under act of 1929 -- Whether deportation pursuant to law.
It is immaterial whether subsequent judicial interpretation is concerned with the substantive or the adjective phase of the law relating to deportation proceedings, when determining the law of the case which became final at the time of deportation. (See 3, I. & N. Decs. 605, 83, 818.)
INADMISSIBLE:
Act of 1929 -- Arrested and deported within 1 year.
Discussion: This case is before us on appeal from a decision of the
Acting Assistant Commissioner dated July 27, 1950, denying the request
for shore leave privileges under the 9th proviso.
Appellant is a 33-year-old native of the Soviet Union and citizen of
Italy by virtue of marriage to an Italian citizen in 1939. She was
granted a legal separation from her husband in September 1947.
Appellant arrived in the United States in February 1949 as a stewardess
on the Polish vessel S.S. Sobieski and was admitted for a maximum of 29
days as a seaman. Appellant overstayed the authorized period, living in
an adulterous relationship with a Polish citizen, illegally in this
country, whom she allegedly planned to marry upon receipt of annulment
papers from Italy.
On September 9, 1949, the Assistant Commissioner ordered appellant's
deportation to Italy on the charge of remaining longer as a seaman.
Voluntary departure was denied. This Board dismissed the appeal on
November 2, 1949, and refused appellant's request for voluntary
departure. Deportation was effected on January 11, 1950.
Counsel asserts that appellant was not deported in pursuance of law.
As alternative relief, counsel seeks an exercise of the 9th proviso
(sec. 3, act of 1917). Counsel contends that appellant was not deported
pursuant to law and, in this connection, distinguishes the rulings in
U.S. ex rel. Steffner v. Carmichael, 183 F.(2d) 19 (C.A. 5, 1950), /1/
and U.S. ex rel. Koehler v. Corsi, 60 F.(2d) 123 (C.C.A. 2, 1932), from
the instant case on the ground that only substantive law was involved in
those cases. Counsel maintains that a valid deportation cannot occur
unless the dictates of the Administrative Procedure Act /2/ are observed
throughout the deportation proceeding.
We feel that it is immaterial whether the subsequent judicial
interpretation is concerned with the substantive or the adjective phase
of the law relating to deportation proceedings. We consider the
Steffner case (supra), as controlling in the instant situation.
Therefore, since our decision of November 2, 1949, affirming the
outstanding order of deportation, was in accordance with the law as it
then existed, /3/ the case is closed and there can be no readjudication
at this time. /4/
Practically speaking, it would be unfortunate and administratively
unsound to permit every deportation proceeding determined prior to
February 20, 1950, to be reopened on the ground which counsel for
appellant suggests. Operation and enforcement of the immigration laws
would be severely impeded, perhaps reduced to chaos. The resulting
uncertainty in the law would be most undesirable. (See Valenti v.
Clark, 83 F.Supp. 167, 168, D.C. 1949.)
Hence, it is determined that appellant has been validly deported and
that the order of deportation became final upon execution. Concerning
relief under the 9th proviso to section 3 (act of 1917), which counsel
seeks in the alternative, we will affirm the action of the Assistant
Commissioner in denying this request.
Order: It is hereby ordered that the appeal be dismissed.
(1) Affirming our order in Matter of Steffner, A-9635850 (August 26,
1949) (Int. Dec. #79), and the subsequent court decision in the United
States District Court, 183 F.(2d) 19 (C.A. 5, 1950). Cert. den.
October 9, 1950.
(2) Act of June 11, 1946; 60 Stat. 237, ch. 324; 8 U.S.C. 1001 et
seq. Cf. Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 383
(1950) for the application of this act to deportation proceedings.
(3) The law of the case became fixed at the time of appellant's
deportation on January 11, 1950, U.S. ex rel. Koehler v. Corsi, 60 F.(
2d) 123 (C.C.A. 2, 1932), Matter of R , A-3844720 (April 29, 1949),
(Int. Dec. #40), and Matter of R , A-5986220 (April 12, 1949). A
mistake of law or a change in interpretation of the law cannot serve as
a basis for varying this established law of the case. Matter of M ,
A-3083881 (October 14, 1949) (See Int. Dec. #192, Ed. note, p. 3);
Union Oil Co. v. Reconstruction Oil Co., 58 Calif.App.2d 30, 135 P.(2d)
621 (1943); McGregor v. Provident Trust Co., 119 Fla. 718, 162 So. 323
(1935); McCracken's Case, 251 Mass. 347, 146 N.E. 904 (1925).
(4) Should appellant's suggestion be followed and a hearing de novo
afforded in the present case, the result would be only a relitigation of
the original facts and issue, previously determined on the basis of the
law as it existed during the prior proceeding. Relitigation of issues,
after a change in judicial interpretation, has been denied consistently
by courts. Concordia Ins. Co. v. School District, 282 U. S. 545
(1931); Commonwealth v. Fidelity & Columbia Trust Co., 215 S.W. 42
(Ky. 1919); Continental Supply Co. v. Abell, 24 P.(2d) 133 (Mont.
1933); Thompson v. Louisville Banking Co., 55 S.W. 1080 (Ky. 1900);
Bolton v. Hey, 31 A. 1097 (Pa. 1895). See also Messinger v. Anderson,
225 U.S. 436 (1911); Page v. Arkansas Natural Gas Corp., 53 F.(2d) 27
(C.C.A. 8, 1931). There appears to be no reason to vary this rule in
the instant situation, for administrative orders must also have final
validity which can be relied on in the interest of concluding
litigation. In re Ft. Dodge, D.M. & S.R. Co., 47 F.Supp. 95 (S.D.
Iowa, 1942); U.S. ex rel. Steffner v. Carmichael (supra); Daskaloff v.
Zurbrick, 103 F.(2d) 579 (C.C.A. 6, 1939). Cf. Gen. Motors Acceptance
Corp. v. Midwest Chevrolet Co., 74 F.(2d) 386 (C.C.A. 10, 1934); State
of Kansas ex rel. Beck v. Occidental Life Ins. Co., 95 F.(2d) 935
(C.C.A. 10, 1938); Western Fire Ins. Co. v. University City, 124 F.(2d)
698 (C.C.A. 8, 1942); Hager v. Honover Fire Ins. Co., 64 F.Supp. 949
(W.D. Mo., 1945).
Editor's note. -- To like effect, in unreported Matter of C ,
A-7092104, B.I.A. July 25, 1950, deportation being effected on January
31, 1950, and in Matter of C R , A-5173361, B.I.A. September 19, 1950
(Int. Dec. #221), deportation being effected in 1949.
Subversive, proscribed organization, member of -- Communist Party of United States of America, membership -- Act of October 16, 1918, as amended by section 22 of Internal Security Act of 1950 -- Evidence of proscribed nature of organization.
(1) An alien, who first entered the United States on August 1, 1923 (admitted for permanent residence), and last entered the United States (as a returning resident) on June 16, 1945, who was a member of the Communist Party of the United States from 1930 to 1939, was charged on October 19, 1950, and then found subject to deportation under the provisions of section 4 of the act of October 16, 1918, as amended by section 22 of Title I of the Internal Security Act of 1950 as an alien who, prior to entry, was a member of one of the classes of aliens enumerated in section 1(2)(C) of the above act, as amended; to wit; a member of the Communist Party of the United States.
(2) It is no longer necessary under the Internal Security Act of 1950 (effective September 23, 1950), to show that the Communist Party is an organization that believes in the overthrow of the Government by force and violence.
CHARGES:
Warrant: Act of October 16, 1918, as amended by the
Acts of June 5, 1920, and June 28, 1940 -- At time of entry, was a member of the following class, set forth in section 1 of said Act: An alien who was a member of and affiliated with an organization, association, society and group that believes in, advises, advocates and teaches the overthrow, by force and violence, of the Government of the United States.
Act of October 16, 1918, as amended by the
Acts of June 5, 1920, and June 28, 1940 -- At the time of entry, was a member of the following class, set forth in section 1 of said act: An alien who was a member of and affiliated with an organization, association, society and group that writes, circulates, distributes, prints, publishes, and displays, and causes to be written, circulated, distributed, printed, published and displayed, and that has in its possession for the purpose of circulation, distribution, publication, issue and display, written and printed matter, advising, advocating, and teaching the overthrow, by force and violence, of the Government of the United States.
Act of October 16, 1918, as amended by the
Acts of June 5, 1920, and June 28, 1940 -- After entry, was a member-of the following class, set forth in section 1 of said act: An alien who was a member of and affiliated with an organization, association, society, and group that believes in, advises, advocates, and teaches the overthrow, by force and violence, of the Government of the United States.
Act of October 16, 1918, as amended by the
Acts of June 5, 1920, and June 28, 1940 -- After entry, was a member of the following class set forth in section 1 of said act: An alien who was a member of and affiliated with an organization, association, society and group that writes, circulates, distributes, prints, publishes and displays, and causes to be written, circulated, distributed, printed, published and displayed, and that has in its possession for the purpose of circulation, distribution, publication, issue, and display, written and printed matter advising, advocating, and teaching the overthrow, by force and violence, of the Government of the United States.
Lodged: Act of October 16, 1918, as amended by the
Internal Security Act of 1950 -- An alien who, prior to entry, has been a member of the following class of aliens set forth in section 1 of said act: An alien who was a member of the Communist Party of the United States.
The hearing examiner recommends that the respondent be deported from
the United States pursuant to the charge lodged at the hearing. No
exceptions have been filed.
Discussion: The material facts in this case have been made the
subject matter of a written stipulation by and between G N Z , the
respondent herein; his attorney, I E , Esq.; and E C C , the Examining
Officer for the Immigration and Naturalization Service. It has been
stipulated and agreed for the purposes of these proceedings and these
proceedings only that the respondent is an alien, a native and citizen
of Bulgaria; that he first entered the United States on August 1, 1923,
at New York, N.Y. and was admitted for permanent residence; that he
last entered the United States on June 16, 1945, at Detroit, Mich., via
the Canadian Pacific Railway and was admitted upon presentation of a
resident alien's border crossing card; and that the respondent was a
member of the Communist Party of the United States from 1930 to 1939.
In addition to the charges contained in the warrant of arrest, a
further charge was lodged against the respondent during the hearing
which was held on October 19, 1950. This additional charge has been
predicated on the act of October 16, 1918, as amended by title I of the
Internal Security Act of 1950 (Public Law 831, effective September 23,
1950). Section 4 of the amended 1918 act provides:
SEC. 4. (a) Any alien who was at the time of entry into the
United States, or has been at any time thereafter, * * * a member
of any one of the classes of aliens enumerated in section 1(2) of
this act shall, upon the warrant of the Attorney General, be taken
into custody and deported in the manner provided in the
Immigration Act of February 5, 1917. The provisions of this
section shall be applicable to the classes of aliens mentioned in
this act, irrespective of the time of their entry into the United
States.
Section 1(2) of the amended 1918 act reads in pertinent part:
That any alien who was a member of any one of the following
classes shall be excluded from admission into the United States.
* * * * * * *
(2) Aliens who, at any time, shall be or shall have been
members of any of the following classes:
* * * * * * *
(C) Aliens who are members of or affiliated with (i) the
Communist Party of the United States, * * *.
In the instant case the respondent has conceded his membership in the
Communist Party of the United States from 1930 to 1939. Accordingly, he
must be found deportable under section 4 of the amended 1918 act as an
alien, who, prior to entry, has been a member of one of the classes of
aliens enumerated in section 1(2)(C) of the said act.
In view of this determination, it is unnecessary to consider the
applicability of the charges contained in the warrant of arrest. It is
noted that the alien has expressed his willingness to depart voluntarily
under a warrant of deportation and, therefore, it may be assumed that he
has conceded his deportability under the immigration laws.
Findings of Fact: Upon the basis of all the evidence presented, it
is found:
(1) That the respondent is an alien, a native and citizen of
Bulgaria.
(2) That the respondent first entered the United States on
August 1, 1923, at New York, N.Y., on the S.S. Rochambeau and was
admitted for permanent residence.
(3) That the respondent last entered the United States on June
16, 1945, at Detroit, Mich., via the Canadian Pacific Railway and
was admitted as a returning resident.
(4) That the respondent was a member of the Communist Party of
the United States from 1930 to 1939.
Conclusions of Law: Upon the basis of the foregoing findings of
fact, it is concluded:
(1) That under the act of October 16, 1918, as amended, and
section 19 of the Immigration Act of 1917, as amended, the
respondent is subject to deportation in that he is an alien who
has been prior to entry a member of one of the classes of aliens,
enumerated in section 1(2) of the act of October 16, 1918, as
amended: An alien who was a member of the Communist Party of the
United States.
Other Factors: A report furnished by the Federal Bureau of
Investigation discloses no criminal data relating to the subject alien,
except an arrest in Pontiac, Mich., in 1930 for violation of the State
Criminal Syndicalism Act and a dismissal of that charge.
Counsel for the respondent stated at the hearing that it is the
desire of the respondent to leave the United States voluntarily under an
outstanding order of deportation and that he proposes to effectuate his
desires as expeditiously as possible. The last mentioned matter, which
is a request for voluntary departure under an outstanding warrant of
deportation, is one which lies within the discretion of the District
Director.
Order: It is ordered that the alien be deported from the United
States pursuant to law on the following charge:
The act of October 16, 1918, as amended, in that he is an alien
who has been prior to entry a member of one of the classes of
aliens enumerated in section 1(2) of the said act: An alien who
was a member of the Communist Party of the United States.
It is further ordered, That this case be referred to the District
Director for consideration of the alien's application for voluntary
departure under a warrant of deportation.
Discussion: During oral argument before this Board counsel requested
that we stay any order of deportation in this case until respondent's
wife and child are permitted by the Department of State to go abroad
with him. We will state the history of this case briefly, omitting the
proceedings as to writs of habeas corpus and the appeals involving those
writs, because they do not come before us. This record was last before
this Board on an appeal from an order of deportation entered by the
Assistant Commissioner on August 23, 1949, and based on the charges that
prior to entry respondent became a member of a proscribed organization
and that at the time of entry and following his entry he was and became
a member of a proscribed organization. On November 25, 1949, we
dismissed that appeal. On February 20, 1950, the Supreme Court in Sung,
v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616 (1950), decided
that as the law then stood the provisions of the Administrative
Procedure Act applied to deportation hearings. Because of that decision
the Immigration and Naturalization Service determined to accord
respondent a warrant hearing de novo held in compliance with the
provisions of the Administrative Procedure Act. This hearing was held
on October 19, 1950.
The Internal Security Act of 1950 became effective on September 23,
1950. At the time of the hearing on October 19, 1950, the hearing
examiner lodged a new charge against respondent under the act of October
16, 1918, as amended by the Internal Security Act of 1950. Following
that hearing the Assistant Commissioner again ordered that the alien be
deported from the United States and ordered that his request for
voluntary departure under the warrant of deportation be referred to the
District Director for consideration. Respondent appeals from that
order.
The record contains a stipulation entered into and filed by
respondent, his attorney, and the examining officer for the Immigration
and Naturalization Service, numbered exhibit 3. This stipulation
contains the following provision: "4. The respondent was a member of
the Communist Party of the United States from 1930 to 1939.' The
Assistant Commissioner's opinion states that respondent has conceded his
membership in the Communist Party and therefore may be assumed to have
conceded his deportability. The order of deportation, therefore, is
based on the lodged charge only and not on the earlier warrant charges.
This case is before us, then, on the single issue of the application of
the Internal Security Act of 1950 to respondent. The distinction
between the new lodged charge and the earlier warrant charges is that
prior to the enactment of the 1950 act it was assumed that it was
necessary in any hearing involving this kind of charge to introduce
evidence showing the nature of the Communist Party during the time of
the alien's alleged affiliation. Section 22 of the Internal Security
Act of 1950 provides that the act of 1918, as amended, shall provide
(sec. 1(2)(c)) that membership in or affiliation with the Communist
Party in and of itself is ground for exclusion or (sec. 4(a))
deportation. It is no longer necessary under this act to show that the
Communist Party is an organization, association, society, or group that
believes in the overthrow of the Government by force and violence.
This is the first case to come before this Board involving this
provision of the new act. It is the contention of respondent's counsel
that this is an unconstitutional provision, but counsel recognizes our
position that we do not conceive it to be our function to determine the
constitutionality of the statutes we must administer.
Counsel informed the hearing examiner during the October 1950
hearing, "It is the desire of the respondent to leave the United States
voluntarily under an outstanding order of deportation and he desires to
effectuate his desires (sic) as expeditiously as possible.' During the
oral argument before us counsel stated that it had been respondent's
desire to depart from the United States on November 10 but that on
October 21 respondent was arrested under the Internal Security Act of
1950 and detained at Ellis Island beyond the date of the sailing of the
vessel on which he had planned to depart. It was the intention of
respondent to take his United States citizen wife and child abroad with
him. Counsel stated that the Department of State refused to issue
United States passports for the wife and child and that a waiver of
documents was also refused. Aside from counsel's statement, the
incident of the request for and the refusal of passports is not
reflected in our record.
As we have already stated, counsel requests that we stay any order of
deportation in this case until respondent's wife and child are permitted
to go abroad with him. It is well established, and it is recognized by
counsel, that we have no authority to order the Department of State to
issue a passport. Nor can we, by indirection, attempt to "pressure'
another Department of the Government on behalf of respondent. It is
recognized that the Department of State has exclusive power over the
issuance of passports.
Under the statute and on this record we have no choice but to affirm
the order of deportation. Whether his wife and child are permitted to
accompany the alien is another question entirely outside our
jurisdiction.
Order: It is ordered that the appeal be and the same is hereby
dismissed.
Admission of the commission of a crime involving moral turpitude prior to entry (perjury) -- Adequacy thereof -- Whether such admission can be used against the alien if on the same set of facts he was convicted of a lesser crime which does not involve moral turpitude.
1. An alien admitted the commission (in 1948, before last entry) of perjury at a board of special inquiry hearing (on May 1, 1950), with respect to false statements as to his birthplace and citizenship, after the offense of perjury was defixed and explained to him adequately; and his tardy denials of such admission at the later board of special inquiry hearing (continued on May 8, 1950), was of no avail and did not detract from his earlier admission, under the circumstances in this case.
2. Such admission of the commission of perjury (a crime involving moral turpitude) can be used against the alien though on the same set of facts he was convicted of a lesser crime (violation of 8 U.S.C.A. 746(18) for falsely representing himself as a citizen of the United States) which does not involve moral turpitude, it being noted there was no judicial adjudication as to the offense of perjury, the alien not being indicted or tried for that offense. (See 3, I & N. Dec. 623, as to the situation in which a use of an admission of the commission of a crime would be deemed inconsistent with a court's dismissal of such offense on other than purely technical grounds; also see footnote 13 on p. 12 of 3, I. & N. Dec. 236.)
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917 -- Admits crime, to wit: Perjury.
Discussion: This matter is before the Board on motion of counsel for
reconsideration of our order of August 10, 1950, dismissing the appeal.
Appellant, a native of Jamaica, British subject, arrived at Miami,
Fla., on April 29, 1950. He was in possession of an unexpired
British-Jamaican passport and an immigration visa issued April 13, 1950,
by the American vice consul at Kingston, Jamaica. A board of special
inquiry found appellant to be inadmissible on the ground set forth
above. The Assistant Commissioner affirmed the excluding decision of
the board of special inquiry.
Appellant first sought admission to this country at Miami, Fla., on
or about September 2, 1948. At that time he applied for admission as a
United States citizen, claiming that he had been born in South Carolina
and taken to Jamaica as an infant. He presented a birth certificate
purporting to show his birth in South Carolina. He was held for a board
of special inquiry. Throughout the proceedings before that board he
continued to assert his claim to citizenship, until the immigration
officials obtained proof in the form of letters from Jamaica that he had
been born in Jamaica. After he was confronted with this proof he
admitted that he had been born in Jamaica and was a subject of Great
Britain. He related the manner in which his entry had been planned and
admitted that he had knowingly and falsely stated under oath that he was
a native-born citizen of the United States and that he had committed the
crime of perjury.
On October 1, 1948, at Miami, Fla., charges were filed against
appellant under 8 U.S.C.A. 746(18). He had a hearing before a United
States Commissioner and he pleaded guilty to having falsely
misrepresented himself as being a citizen of the United States. On
October 29, 1948, he was sentenced and placed on probation by the United
States District Court at Miami, Fla., with a special condition ordered
by the court, as follows:
Committed to the custody of the Attorney General of the United
States of America for confinement in an institution to be
designated by him for a period of 1 year; further, that the above
sentence be suspended and you are hereby placed on probation for a
period of 3 years; special condition, that you only enter the
United States of America hereafter legally (Record, May 1, 1950
hearing, p. 8).
At the conclusion of the criminal proceedings in 1948 appellant
returned to Jamaica where he secured the documents necessary for a legal
entry and again applied for admission as a permanent resident. On May 1,
1950, during proceedings before a board of special inquiry at Miami the
term "perjury' was again defined and explained to appellant. He was
confronted with the testimony given by him at his hearings in 1948. He
admitted that statements made by him during those hearings with regard
to his birthplace and citizenship were false, and that he had committed
the crime of perjury. On May 8, 1950, after the alien had been granted
a week's continuance he again appeared before the board of special
inquiry accompanied by counsel. At this hearing he was interrogated by
counsel and by the chairman of the board of special inquiry. He stated
repeatedly that he did not understand the term "perjury,' and he
continued to deny an understanding of the word, in spite of repeated
explanation by counsel and by the chairman. He was ordered excluded as
a person who admits the commission prior to entry of a crime involving
moral turpitude, to wit, perjury. The Assistant Commissioner affirmed
the order of exclusion.
Before this Board counsel argued that the necessary requisites to a
finding of an admission of the commission of perjury are not present in
the record. That is, she maintained that an adequate and knowing
admission had not been made by appellant during the course of the
hearings. On August 10, 1950, we dismissed the appeal from the
Assistant Commissioner's order of exclusion, on the ground that
appellant's admission of the commission of the crime of perjury was
valid and that his tardy denials in the hearing of May 8, 1950, of his
earlier admissions were of no avail and did not detract from his earlier
admissions.
It is now urged that the United States Attorney in Miami did not
prosecute appellant for the crime of perjury, but for a lesser crime, a
crime not involving moral turpitude, and that it is, therefore, improper
for the immigration authorities to find him excludable as one who admits
the commission of a crime involving moral turpitude, to wit: perjury.
It is the opinion of the majority of the members of this Board that
since the statute demands either a conviction or the admission of the
commission of a crime, that appellant is excludable. "The admission is
treated as evidence of guilt tantamount to conviction.' U.S. ex rel.
Rosen v. Williams, 200 F. 538 (C.C.A. 2, 1912); U.S. ex rel. Karpay v.
Uhl, 70 F.(2d) 792 (C.C.A. 2, 1934). It is our opinion that he was
convicted for a different crime, and he was never tried for the crime of
perjury. It is not as though he had been tried for perjury and been
acquitted. It is not as though he had been charged with perjury and
that the perjury counts had been dismissed by a federal court after
consideration of the case on its merits. Even in such cases it may be
that the law permits the immigration authorities to make an independent
determination of the deportability of an alien without regard to the
judicial action in the criminal proceeding. The following cases do not
involve "Admissions of the commission of crimes,' but they do appear to
constitute authority for independent determination by immigration
authorities.
In Williams v. U.S. ex rel. Bougadis, 186 U.S. 479 (C.C.A. 2, 1911)
the alien had claimed United States citizenship and had been admitted to
the United States as a citizen when he produced citizenship papers
which, in reality, had been issued to someone else. He had been
indicted for the offense of falsely representing himself to be a
citizen. A verdict of acquittal had been directed by the trial court.
The Circuit Court (so termed at that time) later discharged the alien in
habeas corpus proceedings on the ground that he had been discharged in
the earlier proceeding. On appeal the Circuit Court of Appeals reversed
the latter order. With regard to the dismissal of the earlier
proceeding the court said:
In our judgment, the direction of the verdict upon the trial of
the indictment is not res judicata of the present proceeding.
That was a criminal trial, under section 79 of the Criminal Code
(U.S. Comp. St. Supp. 1909, p. 1414), in which the government was
required to establish the defendant's guilt beyond a reasonable
doubt. This is a proceeding under an entirely different law,
instituted by executive officers of the government to ascertain
whether an alien should be deported. It is not a criminal trial.
No punishment has been or can be inflicted.
In U.S. ex rel. Mastoras v. McCandless, 61 F.(2d) 366 (C.C.A. 3,
1932), the alien and his wife had been arrested upon a charge of
conducting a bawdy house. The wife pleaded guilty, was sentenced and
served a term in prison. The alien was acquitted by direction of the
court. Following these proceedings he was arrested on the charge that
he had been found in the United States in violation of the immigration
laws, in that, he had been found connected with the management of a
house of prostitution. The court held that the fact that he was
previously acquitted of the charge under which the deportation warrant
was issued is immaterial, that it does not constitute res judicata in a
deportation proceeding, citing Lewis v. Frick, 233 U.S. 291, 34 S.Ct.
488, 58 L.Ed. 967.
In the case of Lewis v. Frick (supra), the alien had been indicted on
the charge that he knowingly imported an alien woman from a foreign
country for an immoral purpose. The trial of the indictment resulted in
a verdict of not guilty. The Supreme Court held that the trial court
erred in holding that in the absence of a conviction for a felony that
it was not possible to deport the alien for this offense. The court
said:
We agree with the circuit court of appeals that the verdict and
judgment acquitting petitioner under the indictment does not
render the present controversy res judicata. The issue presented
by the traverse of the indictment was not identical with the
matter determined by the Secretary of Commerce and Labor. And,
besides, the acquittal under the indictment was not equivalent to
an affirmative finding of innocence, but merely to an adjudication
that the proof was not sufficient to overcome all reasonable doubt
of the guilt of the accused. The distinction between a criminal
prosecution and an administrative inquiry by an executive
department or subordinate officers thereof has been often pointed
out. (Citing cases.)
The above cases do not involve the "admissions' provision, but it
seems to us that when an alien has admitted the commission of a crime
the reasoning of these cases applies with greater force. It has been
our custom to consider ourselves bound by a judicial adjudication in a
cause and not to hold the alien on an independent admission, unless the
court's action in dismissing a charge is based purely on technical
grounds. It is our opinion that our findings herein are not
inconsistent with the judicial action; there was no adjudication of the
charge of perjury, because appellant was not indicted or tried for that
offense. He was tried for the crime of false claim to citizenship.
We do not consider the cases cited in the minority opinion to be
binding or to be inconsistent with the holding herein.
Order: It is ordered that the motion be denied.
Dissenting: LEIGH L. NETTLETON and ROBERT M. CHARLES, Members.
Discussion: The facts in this matter are adequately stated by the
opinion of the majority members of this Board, except it is important to
note that during the hearing on May 8, 1950, counsel protested the
questions put to the alien in previous hearings when he was not
represented by counsel, questions which sought to obtain an admission of
the commission of the crime of perjury. Counsel objected on the grounds
that such questions "might tend to degrade, incriminate, and subject to
prosecution' the appellant. The chairman of the board of special
inquiry informed counsel as follows:
You are advised that in October 1948, while the applicant was
under proceedings in this office, the charge against him for the
commission of perjury was presented to the United States District
Attorney in Miami, at which time the United States Attorney
declined to prosecute on that charge. Therefore, the question and
answer under discussion will not be stricken from the record. Do
you understand?
A. Yes. In other words isn't the Government's contention now
that the question is academic?
Q. Yes.
A. I will accept that for the record.
Appellant was charged with false claim to citizenship. He pleaded
guilty to this charge and was sentenced for this offense. Admittedly,
false claim to citizenship has been held to be a crime not involving
moral turpitude. Matter of T , 56156/584 (January 4, 1944); Matter of
H , A-5918387 (56156/910) (May 1, 1944).
At the outset let it be stated that the law requires the exclusion of
an alien (i) who has been convicted of, or (ii) who admits having
committed a felony or other crime or misdemeanor involving moral
turpitude.
As shown above there was presented to the United States Attorney the
charge that the alien herein had committed perjury. For reasons best
known to the United States attorney he declined to prosecute on a
perjury charge but did prosecute the alien for having made a false claim
to citizenship, in violation of 8 U.S.C. 746(18). The alien has
admitted in this proceeding that he committed perjury, and thereafter he
sought to recant such admission. It is clear that there can be no
recantation (U.S. v. Norris, 300 U.S. 564); but there remains the issue
of law, and the only issue in controversy, whether it is competent to
receive from an alien who has been convicted of a particular offense --
one which does not involve moral turpitude and does not operate against
his admission into the United States -- his admission, based on the same
set of facts, that he in fact committed another, but related, offense
which involves moral turpitude and which admission, if accepted,
prevents his entry into the United States.
We think that the acceptance of such admission, at variance with the
judicial proceeding, is improper.
Quite aside from the cold legal issue, we would point out that the
alien is of a low intellectual level and to accept his admission when he
is without the benefit of counsel is somewhat unfair. The Government,
however, with the advantage of the professional legal talent of the
United States attorney, concluded to prosecute the alien for the less
serious offense and secured conviction of that offense, although then in
full possession of the facts on which the alien was prevailed upon to
admit his commission of the more serious offense.
A careful reading of the record, clearly shows that the alien
admitted committing an offense the elements of which he did not fully
understand, and to hold this against him would be manifestly unfair and
would be taking advantage of this alien's ignorance of legal matters.
Also aside from the issue is the fact that if it be held competent to
receive the admission it will result in the alien's permanent exclusion
from the United States where he is seeking to join his wife, a native of
Jamaica, a resident of the United States, and allegedly an applicant for
naturalization. It may well be that decision to deny admission will
result in disrupting what is apparently a happy marriage. However, we
do not rest our opinion on the hardship phase.
Of particular significance in this case but again beside the legal
issue involved, there has been introduced a communication dated January
5, 1950, addressed to the applicant, L E I , Kingston, Jamaica, British
West Indies, by the Assistant Commissioner of Immigration and
Naturalization, reading as follows:
Receipt is acknowledged of your recent communication concerning
permission to reapply for admission to the United States. The
circumstances are such that permission to reapply is not
necessary. It is suggested that application for a permit to enter
the United States be made at any American consular office.
Certainly this alien was endeavoring to comply fully with the order
of the court entered at the time of his conviction as hereinbefore set
forth for unlawfully representing himself to be a citizen of the United
States, on which occasion the court said, "that you only enter the
United States of America hereafter legally.'
All of the foregoing tends to show that it was indicated that this
individual could return to the United States in a lawful manner
notwithstanding his conviction.
The cases cited in the opinion of the majority concerning
commercialized vice are not controlling on the point concerned herein
inasmuch as such grounds for exclusion, or deportation, are not
dependent upon there having been a conviction or admission of the
offense, but are dependent upon a finding by the immigration authorities
that such misconduct occurred.
It is our belief that the judicial action taken in this case
constitutes a full definition of any criminal offense for which
appellant may be charged in connection with his attempt to enter the
United States in September 1948. Appellant was not charged with
perjury, and the immigration authorities are bound by the judicial
action.
When there is an inconsistency between the admission and the judicial
proceedings, the judicial proceedings should prevail over the admission.
This Board has followed this rule in a number of cases, which we
consider in point. In Matter of H , 55714/554 (December 21, 1944), the
alien had been convicted of the crime of possession of stolen goods, to
wit: a revolver. He admitted to the immigration authorities having
committed the crimes of (1) receiving stolen goods and (2) possession of
an offensive weapon. The facts of the case seem to establish all of
these crimes, both the crime of which he had been convicted and the
crimes which he admitted. This Board held that the judgment indicated
the conviction only of "possession of an offensive weapon.' We held that
his admission as to the other crimes was only a "legal conclusion' by
him and said, "The admission of something legally nonexistent is of no
consequence.'
In Matter of B , 56096/347 (October 14, 1941), the alien had been
convicted of the crime of vagrancy. He admitted the crime of grand
larceny. We held that the admission of grand larceny was not binding,
that the enforcing authorities had probably concluded that there was no
grand larceny because they did not prosecute for that crime, but instead
had accepted a plea of guilty to a vagrancy charge.
In the Matter of McG , 56175/450 (June 5, 1945), the alien had been
convicted of two crimes (1) grand larceny and (2) attempt to break and
enter with intent to steal. He admitted to the immigration authorities
having committed the crimes of (1) theft and (2) breaking and entering.
The facts showed the crimes as admitted. We held that the convictions
superseded the admissions and excluded him on the charges of the
convictions rather than on the admissions.
Matter of G , 55917/390 (June 9, 1944), involved a judicial
determination that the alien had committed the crimes of alse
personation and making false statements under oath in violation of
section 22, paragraph (b) and (c) of the Immigration Act of 1924, a
crime held not to involve moral turpitude. This Board held that where
the alien had been convicted of a certain offense his admission of the
commission of a greater offense should not be accepted, that the
admission of a different offense based upon the same facts and
circumstances was ineffective when the crime had already been judicially
determined.
The court's action in the present proceeding was not based on purely
technical grounds such as the running of the statute of limitations.
Appellant did not obtain an acquittal on the basis of perjured
testimony. He was found guilty of the crime of false claim to
citizenship and sentenced. The sentence was suspended by the court, and
he was placed on probation for three years with the provision that the
probation would be violated if the alien reentered the United States
illegally.
It has been judicially determined that we may not go behind the
record of conviction to determine that the alien was blameless (Robinson
v. Day, C.C.A. 2, 1931, 51 F.(2d) 1022) or to determine the precise
circumstances of the crime (Meyer v. Day, (C.C.A. 2, 1931), 54 F.(2d)
336). That being the rule, it would seem equally true that we may not
go behind the record of conviction to determine on the same set of facts
that the alien in truth committed a different crime than the one for
which he was convicted. While the rule as stated by the courts usually
arises to prevent a convicted criminal from escaping the consequences of
his conviction, by the same token it may operate to protect him from an
unwise admission of having committed a more serious crime than that for
which he was convicted. Thus the rule may operate either against him or
in his favor.
In the face of the conviction for having made a false claim of
citizenship on the same facts upon which the perjury charge has been
predicated, it is our belief that we are not now at liberty to make an
independent determination at variance with the judicial proceeding.
As a dissent has been recorded by two members of the Board, this case
is certified to the Attorney General for review pursuant to 8 C.F. R.
90.12.
The decision and order of the majority of the Board of Immigration
Appeals dated October 31, 1950, are hereby approved.
Citizenship -- Expatriation -- Section 2 and section 3 of the act of March 2, 1907.
A native-born woman citizen of the United States who went to Canada in 1910, married a native-born citizen of the United States in Canada in 1910, returned to the United States to live before he was naturalized in Canada in 1912, and who resided here since, did not expatriate herself under the provisions of section 2 of the act of March 2, 1907, by "naturalization' abroad, nor did she become expatriated under the provisions of section 3 of the above act merely because of the subsistence of such marriage after his naturalization in Canada in 1912.
NOT EXCLUDED BY BOARD OF SPECIAL INQUIRY:
(Admitted as a returning legal resident alien.)
Discussion: The appellant, 67-year-old female, applied at the port
of Blaine, Wash., for admission as a United States citizen. A board of
special inquiry on March 11, 1949, found her to be an alien and
authorized her admission as a returning legal resident. Upon appeal,
the Central Office declined to take jurisdiction in view of the fact
that the applicant had been admitted to the United States, and on June
23, 1950, the applicant made application for amendment of her record of
entry on March 11, 1949, from that of a legally resident alien to that
of a United States citizen. Upon consideration, in view of the
importance of the question of citizenship presented herein, we have
decided that a denial of a claim to citizenship by a board of special
inquiry is appealable, and we will consider the case as an appeal from
the adverse decision of the board of special inquiry on March 11, 1949.
The applicant testified that she was born at Webster, S. Dak., on May
29, 1883, and presented a delayed birth certificate. She stated she
married in 1902 in the United States a person born in Germany who had
been a soldier in the United States but as to whose citizenship status
at the time of her marriage, she did not have any definite information.
Her marriage to this husband was terminated by a divorce procured by her
in the United States on January 19, 1910. She presented a divorce
decree to establish the termination of such marriage. She stated she
continued to reside in the United States after the termination of such
marriage until March 22 or 23, 1910.
The appellant states that she went to Canada about March 22 or 23,
1910, and married a native-born citizen of the United States in Canada
on March 23, 1910. A marriage certificate was submitted as to such
marriage. The appellant's marriage to her second husband has not been
terminated to date. He testified as to his birth in the United States
and presented a delayed birth certificate. He was a United States
citizen when he married the subject in 1910.
Her birth in the United States, her continuous residence in the
United States during her first marriage and after its termination, and
her marriage in 1910 to a citizen of the United States indicate that she
was a citizen of the United States on March 23, 1910, when she married
her present husband.
The appellant stated that she continued to reside in Canada from
about March 23, 1910, until November 1912 and that at all other times
since her birth she has resided in the United States. Her present
husband and she both testified that she was in the United States by
November 27, 1912, at which time her father's birthday was being
celebrated. Other data was mentioned which enabled them to fix the date
as November 1912, at which time the appellant stated that she entered
the United States for permanent residence as a citizen of the United
States.
The record shows that there was submitted copy of a naturalization
record in Canada showing the present husband's naturalization in Canada
on December, 3, 1912, at which time the appellant had already taken up
permanent residence in the United States. He testified that he entered
the United States for permanent residence about February 1913 and he
presented a naturalization certificate showing his admission to United
States citizenship in Montana on April 11, 1923.
The question presented is whether under this set of facts the
appellant became expatriated as a result of her husband's naturalization
in Canada on December 3, 1912.
Under the provisions of section 2 of the act of March 2, 1907, a
citizen of the United States expatriated himself by naturalization in
accordance with the laws of a foreign country. Accordingly, the present
husband of the appellant became expatriated upon his naturalization in
Canada on December 3, 1912. The Service has taken the view that between
March 2, 1907, and September 22, 1922, expatriation would occur if a
woman national acquired nationality of a foreign country in which the
husband (a united States citizen at time of marriage) was naturalized
(after the marriage), through his foreign naturalization and by taking
up residence abroad with her husband. Loss of citizenship by such a
woman national was considered to have occurred under section 2 of the
act of March 2, 1907. In other words, she was considered to have become
naturalized in conformance with the law of a foreign state.
In the present case, the appellant was permanently residing in the
United States when her citizen husband was naturalized in Canada on
December 3, 1912. She had not submitted herself to Canadian
jurisdiction at the time of his naturalization there nor has she ever
done any affirmative act to show an adoption of or concurrence or
acquiescence in any act by her present husband relating to his
naturalization in Canada on December 3, 1912, when she was residing in
the United States.
It is, therefore, concluded that the appellant did not expatriate
herself on December 3, 1912, under the provisions of section 2 of the
act of March 2, 1907, by becoming naturalized in conformity with the
laws of a foreign country, in view of her continued residence in the
United States on and after November 1912.
The question which remains to be considered is whether the appellant
expatriated herself under the provisions of section 3 of the act of
March 2, 1907, because of the fact that for a time she was married to an
alien. It is to be noted that section 3 (supra), specifies "that any
American woman who marries a foreigner shall take the nationality of her
husband' and how such a woman could resume her citizenship at the
termination of such a marital relation. It is clear from the decision
of the Supreme Court in Mackenzie v. Hare, 239 U.S. 299, that the
statute provided a consequence of the marriage to a foreigner in spite
of the woman's contrary intent and understanding as to her American
citizenship and the court noted that the marriage was voluntarily
entered into with notice of the statutory consequences of such marriage.
In such a case, the voluntary nature of the expatriative act of
marriage is apparent and meets the condition indicated in Perkins v.
Elg, 307 U.S. 325, that expatriation is a result of a voluntary act.
In the present case, the appellant married a citizen of the United
States in 1910 and during the subsistence of their marriage he became
naturalized in Canada on December 3, 1912, at which time she had taken
up permanent residence in the United States. The question narrows down
to whether the subsistence of the marriage has a bearing in our case as
to expatriation under section 3 (supra). There have been conflicting
views on this point in the past because of the theory that there was a
merger of nationality during the expatriative period from 1907 to 1922,
the American woman's nationality being submerged in the dominant
nationality of her husband during coverture. In pursuing this theory,
the view of the Supreme Court as to the voluntary nature of
expatriation, as expressed in Perkins v. Elg (supra), was, of course,
not considered because that view antedated the Supreme Court's decision
in the Elg case. It is the Service's view that under section 3 of the
act of March 2, 1907, the expatriative act is the marriage of an
American woman to an alien during the expatriatable period.
In the case where a woman marries an American citizen and thereafter
he becomes an alien without acquiring foreign nationality as, for
instance, where he becomes expatriated for desertion or by taking an
oath of allegiance to a foreign country, the fact that he is an alien
during coverture and during the expatriatable period (1907 to 1922) is
of no expatriative consequence (30 Op. Atty. Gen. 412 (1950)). Even if
the husband acquires a foreign nationality, which the woman already had
herself (a dual national), upon the citizen husband becoming naturalized
abroad after the marriage, she was held not to have become expatriated
(Matter of B , A-5831995, Adjudications Office, November 1, 1946). It
appears clear that it is the marriage to an alien which has the
expatriative effect under section 3 (supra), and if she marries an alien
(1907 22), it is no matter whether or not she may or may not acquire a
foreign nationality by such marriage (Mackenzie v. Hare (supra); Techt
v. Hughes, 229 N.Y. 222; Matter of T , A-6792774, C. O., December 4,
1947). If the husband had both United States nationality and foreign
nationality when she married him, she did not lose her citizenship by
such marriage (Matter of T , 23/45188, C.O. April 22, 1940).
It has been held (1945) that a minor child while married to an alien
during this expatriative period nevertheless derived United States
citizenship through the naturalization of her father and by her
residence in the United States, under section 5 of the act of March 2,
1907, she being still a minor and still married to the alien during this
expatriatable period and before September 22, 1922. Here the theory of
merger of nationality of the American wife with that of her alien
husband was not indulged (his as the dominant one), and the unreported
case of Majefsky, U.S.D.C., So. D. of Calif., 246-P-29263, was cited
(see Digest of Passport Laws and Precedents, Code 3.4 of September 18,
1940, second paragraph). /1/
It is concluded that the appellant did not become expatriated under
the provisions of section 3 of the act of March 2, 1907, by marriage to
an alien, inasmuch as she was married to a citizen in 1910 who later
became an alien by naturalization in Canada on December 3, 1912, at
which time she was residing permanently in the United States and
continued to reside here since November 1912.
There is nothing in the record to indicate that the appellant has
expatriated herself in any manner. Accordingly, her appeal will be
sustained and her admission as a United States citizen authorized.
Order: It is ordered that the appellant's appeal be sustained and
that she be admitted into the United States as a United States citizen.
(1) Matter of W , B.I.A., August 5, 1941, 56088/710 dealt with a
naturalization in Canada of a United States citizen's husband while he
was married to a United States citizen residing with him in Canada at
the time of his naturalization there. The language there used as to
sec. 3 of the act of March 2, 1907, would appear to rest on the fiction
as to the merger of the wife's nationality status in the dominant
nationality of the husband. This decision could have rested on the
facts before it showing that expatriation had resulted under sec. 2 of
that act by virtue of her naturalization in Canada where she resided.
Likewise, in Central Office decisions of Matter of A , 56099/577, August
20, 1942 and Matter of C , A-7268496, September 29, 1949.
It is to be noted that the act of marriage to an alien was considered
to have the expatriative effect under sec. 3 (supra), in the case of In
re Varat, 1 F.Supp. 898, 1932, where the citizen woman had married an
alien on January 27, 1920, after the bar to expatriation (because of the
war period) terminated on July 2, 1921, the expatriative effect of the
marriage to the alien became operative because the continuance of the
marital status (with such alien) showed an affirmance of the
expatriative act of marriage to the alien. (See 39 Op.Atty.Gen. 474,
481.)
Crime involving moral turpitude -- Attempted suicide in violation of section 270 of the Canadian Criminal Code.
The offense of attempted suicide in violation of section 270 of the Canadian Criminal Code (conviction on December 18, 1946) does not involve moral turpitude. /*/
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917 -- Admits commission of crime involving moral turpitude, to wit: Attempt to commit suicide.
Act of 1917 -- Convicted of crime involving moral turpitude, to wit:
Attempt to commit suicide.
Discussion: This record relates to a 23-year-old single female, a
native and citizen of Canada, who, upon application at the port of
Niagara Falls, N.Y., for temporary admission for a visit of several
hours, was excluded by a board of special inquiry on the grounds above
stated. She has appealed from the excluding decision.
At the hearing before the board of special inquiry, the appellant
testified that she did not intend to reside permanently in the United
States; that she had been entering the United States on the average of
twice a week, usually to attend a movie; that, although never married,
for the past 4 years she has been residing in Niagara Falls, Ontario,
Canada, as husband and wife with a married man who is legally separated
from his spouse; and that she had only been arrested on one occasion;
namely, December 1946 in Niagara Falls, Ontario, Canada.
In connection with the aforementioned arrest, the appellant presented
a certification from the county crown attorney and clerk of the peace,
Welland, Ontario, Canada, stating that, according to the official record
of conviction, the appellant appeared in the Magistrate's Court at
Niagara Falls, Ontario, on December 18, 1946, "charged with attempt to
commit suicide, contrary to section 270 of the Criminal Code of Canada.
Pleaded guilty as charged. Sentence suspended and placed in custody of
her mother, E D , to return to Timmins, and make it her home.'
Section 270 of the Criminal Code of Canada, under which statute the
appellant was convicted, provides:
Everyone who attempts to commit suicide is guilty of an
indictable offense and liable to 2 years' imprisonment.
Whether the appellant is subject to exclusion on the grounds urged by
the board of special inquiry is dependent upon whether the offense of
which she was convicted; namely, attempt to commit suicide, is a felony
or other crime or misdemeanor involving moral turpitude. The words
"involving moral turpitude' refer to conduct which is inherently base,
vile, or depraved, contrary to accepted rules of morality. /1/ Whether
a particular criminal offense involves moral turpitude is determined by
standards prevailing in the United States. /2/
The following excerpts relating to suicide and attempt to commit
suicide appear in Corpus Juris: /3/
In its technical and legal sense it means self-destruction by a
sane person or the voluntary and intentional destruction of his
own life by a person of sound mind, the further qualification
being added by some definitions that he must have attained years
of discretion. * * *
By the early English common law suicide was a felony punishable
by forfeiture of the goods and chattels of the felo-de-se, as the
suicide was called, and the ignominious burial of his body in the
highway; but since the forfeiture of the property of a felon is
now abrogated by statute, and burial in the highway is either
forbidden by statute or has fallen into disuse owing to adverse
public sentiment, and since the successful suicide himself is no
longer amenable to human punishment, the question of criminality
of his act is of importance only incidentally as determining the
criminality of aiders and abettors or of persons joining in
suicide pacts, or of attempts to commit suicide, or in determining
whether or not his act is such that it exempts an insurer from
liability because his death is in or in consequence of a violation
of law. According to some authorities, since the act is one for
which no punishment is provided, it is not regarded as criminal,
with the result that the incidents of a criminal act do not follow
therefrom. Other authorities, however, take a different view.
If the act of suicide fails to accomplish its purpose, it
constitutes an attempt to commit suicide, which is unlawful and
criminal, and an indictable offense both as common law and under
some statutes. Under other statutes, however, an attempt to
commit suicide is held not an indictable offense for the reason
that no penalty of any kind attaches to the suicide if actually
committed. It is necessary to find that there was an intent to
take away life in order to constitute an attempt. A statute
providing for the crimes of an attempt, or assault with intent to
commit murder, is not applicable to attempt to commit suicide.
The act of suicide ranges in the various jurisdictions of the United
States from a felony to no offense and the courts are divided on the
question of whether the attempt to commit suicide is an indictable
offense today. Suicide is a crime in South Carolina (State v. Levelle,
34 S.C. 120); Kentucky (Com. v. Hicks, 118 Ky 637); New Jersey (State
v. Carney, 69 N.J.L. 478); Alabama (Penn Mut. Life Ins. Co. v. Cobbs,
23 Ala.App. 205). Suicide has been held not to be a crime in New York
(Hundert v. Com. Trav. Mut. Acc. Ass'n, 279 N.Y.S. 555); Maine (May v.
Pennell, 101 Me. 516); Massachusetts (Com. v. Dennis, 105 Mass. 162;
also see Com. v. Mink, 123 Mass. 422); Ohio (Blackburn v. State, 23
Ohio St. 146); Illinois (Royal Circle v. Achterrath, 204 Ill. 549);
Iowa (State v. Campbell, 251 N.W. 717); Texas (Grace v. State, 44 Tex.
Cr. 193; Sanders v. State, 54 Tex.Cr. 101). /4/ Attempt to commit
suicide has been held not to be a crime in Maine (May v. Pennell,
supra); Massachusetts (Com. v. Dennis, supra); Pennsylvania (Com. v.
Wright, 26 C.C.(Pa.) 666); New York (25 Journal of Criminal Law and
Criminology 125); Hawaii (King v. Ashee, 2 Am.L.R. 794); Texas (Grace
v. State, supra; Sanders v. State, supra); Illinois (Royal Circle v.
Achterrath, supra); Iowa (State v. Campbell, supra). /5/
In his article, Legal Aspects of Suicide /6/ (p. 44), the author
states:
In legal acceptation as well as in a popular sense the term
"suicide' is employed to characterize the act of self-destruction.
"Self-murder' frequently is used as an equivalent expression.
The act has been viewed in both a moral and legal sense from
widely varying standpoints by the jurists and philosophers of
different ages and stages of civilization. Homicide generally is
punished because it strikes at the security of society, and
because it deprives the state of a life which is considered a
thing of value. The former of these considerations plainly is not
present in the case of suicide. Not only does it not produce the
terror that attaches to assassination, but at times it concededly
is accomplished with praiseworthy motives. Indeed, suicide always
is inspired by motives of a very different character from those
which are present in case of felonious homicide generally. At
times the act of self-destruction is the product of a sense of
religious duty; at other times a sense of honor inspires the
actor; and, again, it may and not infrequently does result from
motives of humanity.
Although the writer of The Criminal Aspect of Suicide /7/ (p. 51),
expresses his personal opinion that attempts at suicide should be
criminally punished, he concedes that:
Public opinion generally has seemed to reach the stage that it
no longer recognizes suicide as a crime and, therefore, there are
scarcely any criminal proceedings against those who attempt
suicide. Even in England the practice persists of the coroner's
jury pronouncing that the act was the result of insanity, thus
allowing the perpetrator a full Christian burial. The family is
spared the greater of two evils, for the perpetrator is said to
die insane instead of felo-de-se. Consequently, when the
completed act is not popularly countenanced as an act of criminal
nature, the argument succeeds that the unsuccessful attempt should
not be criminally punished. Even in those states where it is
reasonably held that the attempt is criminal, prosecutions against
those persons who do attempt suicide are not promoted, for there
is only one reported case in each of these jurisdictions. In New
York, where the attempt was a felony by statute for thirty-eight
years, it was said that policemen frequently were seen waiting at
hospitals to arrest persons who had attempted suicide. On the
other hand, in North and South Dakota where the attempt has been
made a felony by statutory enactment, cases coming within the
statute are not prosecuted.
In an article which appeared in the Harvard Law Review, /8/ the
author states:
The question remains whether legal provisions directly
affecting an unsuccessful suicide himself are justifiable and
expedient. Several references have already been made to the
portions of Mr. Lecky's work on European Morals treating of
suicide, which are valuable alike for their collation of the
literature of the subject and the author's own enlightened and
judicial views. The present writer, nevertheless, feels
constrained to except to Mr. Lecky's sweeping dismissal of legal
interference. He says: "Suicide is indeed one of those acts
which may be condemned by moralists as a sin, but which, in modern
times, at least, cannot be regarded as within the legitimate
sphere of law; for a society which accords to its members perfect
liberty of emigration cannot reasonably pronounce the simple
renunciation of life to be an offense against itself.' This is
substantial Catonism, and the doctrine is not only in accord with
the axioms of modern democracy, but is supported by the spirit of
positive provisions of American Constitutional law. * * *
The State of New York has a statute which makes an attempt at
suicide a crime punishable by imprisonment not exceeding 2 years,
or by a fine not exceeding one thousand dollars, or both. /9/ The
specific policy of this law is wrong. Public opinion is against
it and it has proved unenforceable. During the year 1902, 21
cases, and during the first half of 1903, 9 cases of attempted
suicide were held for the grand jury by magistrates in the
Boroughs of Manhattan and the Bronx of the city of New York. In
every case the grand jury refused to find an indictment and the
proceeding was dismissed. Such action was entirely satisfactory.
The contention of Cato and Mr. Lecky is certainly valid to the
extent that one who attempts suicide should not be treated as a
criminal. * * *
In considering the standards prevailing in the United States in order
to determine whether attempted suicide involves moral turpitude,
cognizance must be taken of the following factors:
(1) Public opinion in the United States no longer regards
suicide as a crime.
(2) Courts in the United States have not been in agreement as
to whether attempt to commit suicide is an indictable offense.
(3) In several states, attempted suicide is not a crime.
(4) In the states in which such attempt is a crime, violations
are not being prosecuted.
Logically and generally, acts which are "inherently base, vile, or
depraved, contrary to accepted rules and morality,' such as murder,
larceny, abortion, rape, are crimes in every jurisdiction of the United
States and the perpetrators of such offenses are prosecuted therefor
whenever apprehended. It is extremely difficult to conceive, therefore,
that an act, notwithstanding that it may be against public policy and
religious tenents, which is not recognized by public opinion generally
in the United States as being criminal, which is not an indictable
offense in many jurisdictions in this country, and which is rarely made
the subject of prosecution even in the States where it is a crime, is of
such nature that it is "inherently base, vile, or depraved, contrary to
accepted rules of morality.' Accordingly, applying the Attorney
General's test, /10/ attempt to commit suicide, the offense of which the
appellant herein was convicted in Canada, is not regarded, under
standards prevailing in the United States, as a felony or other crime or
misdemeanor involving moral turpitude. The appellant, therefore, is not
subject to exclusion on the grounds assigned by the board of special
inquiry.
Order: It is ordered that the appeal be sustained and the alien be
admitted as a temporary visitor.
(*) Editor's note. -- To like effect unreported Matter of G , 56096/
893, B.I.A., December 19, 1941 (Canada).
(1) Coykendall v. Skrmetta, 22 F.(2d) 120 (C.C.A. 5, 1927).
(2) 39 Op.Atty.Gen. 95, 96.
(3) 60 Corpus Juris 995-998 (1932 Ed.).
(4) Cases cited in "The Criminal Aspect of Suicide,' Richard Wolfrom,
39 Dickinson Law Review, 42-52; "Legal Aspects of Suicide,' Carl V.
Venters, 38 Law Notes, 44-47.
(5) See footnote 4, supra.
(6) See footnote 4, supra.
(7) See footnote 4, supra.
(8) "Suicide and the Law,' Wilbur Larremore, 17 Harvard Law Review,
338-340.
(9) Secs. 174 and 175 of the New York Penal Code were repealed and
attempt to commit suicide has not been a crime in New York since 1919
(now Penal Law, sec. 2304).
(10) See footnote 2 (supra).
Reentry permit -- Section 10(f) of the Immigration Act of 1924 -- Effect of such document to show alien to whom issued returning from a temporary visit abroad.
Upon the return to the United States of an alien with a reentry permit which had not been procured by fraud or misrepresentation (nor had extensions thereof been secured by such means), such reentry permit (as extended) must be accepted as establishing that the alien to whom it was issued is returning from a temporary visit abroad. (4, I. & N. Dec. 189.)
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 -- No immigration visa.
Discussion: This case is before us on a motion by the Immigration
and Naturalization Service asking that we reconsider our decision of
July 31, 1950, which sustained the appeal and authorized the appellant's
admission to the United States; and instead, that we affirm the action
of the Service excluding the appellant from admission to this country.
The principal issue involved is a question of law, to wit: The
effect to be given reentry permits in accordance with the provisions of
section 10(f) of the Immigration Act of 1924. The appellant involved in
this proceeding is a native and citizen of Nicaragua. He was first
lawfully admitted for permanent residence upon presentation of an
immigration visa on June 6, 1929. He was then a lad of 9 years. After
this admission he testified he remained in the United States for 2
years, went back to Nicaragua, stayed 3 months and came back to the
United States. He stayed on the second occasion about 2 years and then
left the United States. He next returned, he testified, about 1942.
There is a record of his admission with an immigration visa issued as a
native of Nicaragua on September 10, 1942. He then lived here for about
2 years. He was employed and also went to college. He left the country
roughly about 1944, stayed away about 2 years and was again admitted as
a nonquota immigrant because of birth in Nicaragua, at Laredo, Tex., on
May 29, 1946. After this admission he lived in the United States about
2 years, principally in San Francisco, and was engaged in gainful
employment. He applied for a reentry permit which was issued to him on
January 20, 1948. On applications properly made the validity of the
permit was extended first, to July 20, 1949; second, to January 20,
1950; and third, to July 20, 1950. He arrived at Miami, Fla., May 9,
1950, well before the validity of the reentry permit expired.
The first extension of the reentry permit was based on the following
statement made by the appellant: "I desire the extension for the
following reasons or purposes: I am working as secretary to my father,
the Nicaraguan Minister to Colombia.' His foreign address was given as
the Legacion de Nicaragua, Calle 46 No. 15-55 -- Bogota, Colombia, S.A.
In his application for the second extension of the validity of the
permit, the appellant's affidavit stated:
That the reason for asking for a further extension of the above
described permit is that he has been employed by the Nicaraguan
Government in the diplomatic service. He has returned to
Nicaragua from Colombia and plans to go to El Salvador to look
into the business prospects. He plans to return to the United
States in December, 1949.
The third application for extension of permit executed January 21,
1950, before an American vice consul at Managua, gives the reason for
requesting extension, as follows:
He is employed by the Nicaraguan Government as secretary to the
Nicaraguan Legation in Colombia. He plans to return to the United
States in June 1950. The reason this affidavit is delayed is that
Mr. V was away from Managua for a matter of weeks and unable to
appear before an American consular agent.
The decision of the Assistant Commissioner is based on the premise
that the appellant's testimony shows he has not maintained a domicile in
this country and that he has been employed abroad with no intention of
living permanently in the United States, that he is not returning from a
temporary visit abroad, and that the reentry permit is not valid for
readmission to the United States as a returning resident. Point was
also made of the fact that the appellant did not indicate in his
testimony that now he intended to remain the United States permanently.
On this point he was asked this question:
Q. Do you intend to remain in the United States permanently on
this trip? Emphasis supplied.
A. No; not permanently.
Also in pertinency to this are the following questions and answers:
Q. Do you have any fixed place of residence or domicile in the
United States?
A. Well, no; I wouldn't say so. This is the first time I have
come to this side of the States.
Q. I mean anywhere in the United States?
A. Yes; in San Francisco, 715 Duboce Avenue.
Q. What sort of an establishment is there?
A. My sister lives there, and that is her home. She is
married.
Q. Do you intend to make your home there now?
A. No.
Q. How long do you intend to be in the United States on this
trip?
A. Well, I couldn't exactly say.
Q. What is the maximum time?
A. Maybe 6 months, or maybe over 6 months, maybe longer.
Q. Do you intend to work in the United States during this time?
A. I don't think so.
Q. Do you intend to establish a home in the United States?
A. Live here? No.
This testimony admittedly is somewhat equivocal, but we must remember
that the appellant is a young unmarried man who has worked at a variety
of jobs in different localities but still seems to consider his sister's
home in San Francisco as his residence. In his appeal to this Board,
the appellant states as follows:
That I consider my married sister's home in San Francisco as my
fixed residence since this is the place to which I return whenever
I am in the United States, though I plan to go to Chicago for
medical treatment for a period of 6 months or longer.
The appellant also points out that he went to an American vice consul
in Managua who personally told him that the reentry permit he had was
all that was necessary for his lawful admission to the United States.
In argument before the Board, the Service representative objects to our
consideration of anything except the transcript of the record. While as
a matter of law we are bound by the record compiled before the board of
special inquiry, we must remember that this appellant was not and is not
now represented by counsel. If there is any question as to the facts in
the case, it should be a matter of elementary procedure for the Service
to request a reopening so that the case could be developed more
thoroughly. At a minimum, this we would direct if we were not satisfied
that on this record, as a matter of law, admission must be authorized.
The issue in this case is whether a reentry permit obtained without
misrepresentation or fraud and extension of its validity secured by a
frank revelation of the truth has the effect of establishing in
accordance with the provisions of section 10(f) of the 1924 act that the
alien "is returning from a temporary visit abroad.' We are concerned
only with the appellant's status of a returning resident under the 1924
act. It is, of course, clear if the appellant upon application for
readmission should be found inadmissible for other reasons, such as
afflicted with tuberculosis, the reentry permit gives him no right to
readmission.
In this case, the Service takes the position it is at liberty to go
into the issue brand new just as if it had never seen or heard of the
case before. This it does and reaches the conclusion that the appellant
is not returning from a temporary visit abroad.
Section 10(f) of the Immigration Act of 1924 as quoted previously by
us in our prior decision is as follows:
A permit issued under this section shall have no effect under
the immigration laws, except to show that the alien to whom it is
issued is returning from a temporary visit abroad; * * *.
The Service chides us because we did not quote the remaining portion
of the sentence. We did not because it is immaterial to a decision in
this case. The remaining part of the sentence reads as follows:
but nothing in this section shall be construed as making such
permit the exclusive means of establishing that the alien is so
returning.
The Service would use this language as giving it carte blanche
authority to relitigate the returning resident status of an alien with a
permit. It cites no authority for such an alarming proposition. This
language has been construed in Johnson v. Keating, 17 F.(2d) 50 (C.C.A.
1, December 31, 1926), as meaning that a reentry permit is a document an
alien may obtain to prove his resident alien status, but he is not
limited to such a method and may establish his right to reenter as a
returning resident although without a permit or an immigration visa.
This ruling was based on regulations then in effect which have
subsequently been changed. The importance of the decision is only to
show that the language upon which the Service relied so heavily goes
only to the fact that the alien is not limited to establishing a
returning resident status by a reentry permit. It has never been
interpreted judicially as giving the Service authority to find that an
alien is not returning from a temporary visit abroad even though he has
a permit.
There are judicial decisions to the effect that a reentry permit is
only prima facie evidence of the alien's status. The language employed
by the courts, however, must be considered in light of the issue then
before the courts. In U.S. ex rel. Orisi v. Marshall, 46 F.(2d) 853
(C.C.A. 3, January 29, 1931), such language was employed but the court
pointed out that the reentry permit was secured by the alien giving the
wrong date of his last entry into the United States. This clearly was
affirmative fraud on the part of the alien in securing the permit. In
U.S. ex rel. Iodice v. Wixon, 56 F.(2d) 824 (C.C.A. 2, March 7, 1932),
the court stated:
In the absence of any proof that this reentry permit had been
obtained through fraud, failure to give it the force and effect
accorded to it by the statute was arbitrary and capricious action
which made the proceedings, which culminated in his exclusion
because he had no quota visa, unfair.
In that case the alien had obtained a reentry permit on the basis of
an entry in 1913. The position of the Immigration and Naturalization
Service was that he had been in Italy for a considerable period of time
thereafter, and that his last entry was not in 1913 and he had not
established that he had been legally admitted upon his last entry. The
court found that the evidence to establish the alien's absence from the
country subsequent to 1913 unsubstantiated and hence that the permit
must be given the force and effect contemplated by the statute.
From the foregoing decisions, we think it is clear that fraud or
misrepresentations in obtaining a reentry permit where if the truth had
been known in the permit could not legally have been issued renders the
permit invalid. On the other hand, where there has been no fraud or
misrepresentations employed in the application for the permit or in
securing any extension of its validity then it is necessary to accord
the permit the effect prescribed by statute; that is, the permit shows
that the alien to whom it is issued is returning from a temporary visit
abroad. We feel, therefore, that in the absence of fraud or
misrepresentation, it is not proper for the immigration authorities to
re-try the question of whether the alien has maintained a residence in
the United States or his absence from the United States was temporary.
The Service points to section 176.202(e), which provides that an
alien who is a lawful permanent resident of the United States, who is
returning from a temporary visit abroad, may present an unexpired permit
to reenter in lieu of a passport or visa. It also points to section
176.101(n), which says that a lawful permanent resident of the United
States means an alien who has been legally admitted for permanent
residence and who has since such admission maintained his domicile in
the United States. The argument of the Service is that the record as a
whole does not show that the appellant has maintained a domicile in the
United States. As we have stated, since the Service issued a reentry
permit and extended the validity thereof with no misrepresentations as
to the facts, we believe it is precluded now from going into the
question of whether the appellant maintained a domicile in the United
States. The Service should have remembered these regulations when the
reentry permit application was made and when extensions of the validity
of the permit were sought, if material to the facts in the case.
Parenthetically, we observe nowhere in the law in relation to this
particular subject is the word "domicile' used. The 1924 act
contemplates residence. The term "domicile' as used in the regulations,
we feel, must be construed as meaning "residence' rather than "domicile'
as otherwise the regulation purports to amend the law.
There is another phase of this case which does require very serious
consideration. The reentry permit was sought in good faith, was issued
without misrepresentations, the validity of the permit was extended with
the full truth being presented to the immigration authorities, and the
appellant before embarking for the United States was informed that the
permit was valid for his admission to this country. On this set of
facts, good faith on the part of the Government requires it to recognize
the validity of the permit. It is particularly arbitrary and capricious
for this Department on the one hand to issue a document which clearly
indicates to the holder his right to return to the United States under
the status of a returning resident, and then upon his arrival at a port
of entry to re-litigate the entire issue and deny admission where fraud
or misrepresentations are not present.
It is our conclusion, therefore, that as a matter of law a reentry
permit secured without fraud or misrepresentation or its validity
extended without fraud or misrepresentation, must be given the effect
set forth in the statute (sec. 10(f), Immigration Act of 1924), to wit:
That the holder of the reentry permit is returning from a temporary
visit abroad. Even if not required by law to attach the weight to the
reentry permit, as a matter of governmental good faith it should be
done.
Order: It is ordered that the motion of the Service be denied.
The Service has requested that if we do not agree with their decision
that the case be submitted to the Attorney General. Since there is
involved a question of law and an important question of policy, we will
certify the case to the Attorney General under the provisions of Title
8, Code of Federal Regulations, section 90.12.
The decision and order of the Board of Immigration Appeals dated
October 10, 1950, are hereby approved.
Sentenced to imprisonment -- Section 19, Immigration Act of February 5, 1917 -- Commitment to Youth Authority and subsequent incarceration in Vocational Institution (California).
An alien was convicted in the Superior Court at Los Angeles, Calif., on December 30, 1949, for the commission of the crime of burglary, second degree, on or about October 16, 1949. This court found him to have been over 19 but under 21 years of age when apprehended, and ordered him to be committed to the Youth Authority of the State of California for the time prescribed by law. He was incarcerated in the California Vocational Institution at Lancaster, Calif., for a term of a year or more. Such alien was sentenced to imprisonment within the meaning of the immigration laws.
CHARGES:
Warrant: Act of 1924 -- No immigration visa.
Lodged: Act of 1917 -- Crime within 5 years -- Burglary in the
second degree.
Discussion: The respondent, a native and citizen of Mexico, last
entered the United States at Del Rio, Tex., about January 23, 1947. He
secured entry by presenting a fraudulent certificate indicating that he
had been born in the United States. At the time of entry it was his
intention to seek employment. He was not then in possession of an
immigration visa and had never been lawfully admitted to the United
States for permanent residence. The warrant charge is, therefore,
sustained.
With respect to the lodged charge, exhibit 4 shows that the
respondent was convicted of the crime of burglary, second degree, a
felony, on December 30, 1949, in the superior court at Los Angeles,
Calif., the crime having been committed on or about October 16, 1949,
within 5 years of his entry. The information charged that the
respondent entered a building with the intention of committing theft.
It is clear, therefore, that the crime involved moral turpitude. Matter
of V T , 2, I. & N. Dec. 213.
The remaining question is whether the respondent has been sentenced
to imprisonment for a term of 1 year or more. Under section 461 of the
Penal Code of California, burglary in the second degree is punishable by
imprisonment in the county jail for not exceeding 1 year or in the State
prison for not less than 1 year or more than 15 years. The commitment
in the case sets forth that on March 1, 1950, the court found that the
respondent was under 21 years of age and over 19 years of age at the
time of his apprehension, and the court ordered that he "be committed to
the Youth Authority of the State of California for the time prescribed
by law.' It is stated in exhibit 3, which is a letter from the
California Vocational Institution, Lancaster, Calif., that the
respondent was received at that institution on April 7, 1950, under a
commitment dated March 1, 1950, from the superior court of Los Angeles
County. The respondent is still incarcerated in that institution.
The hearing examiner made a finding in this case that the respondent
was sentenced to imprisonment for a term of 1 year or more. An official
of the California Vocational Institution, who appeared at the hearing as
a Government witness, testified that the respondent's confinement in
that institution was an imprisonment, and he answered in the affirmative
when asked whether the respondent's imprisonment was for a term of 1
year or more. Since this testimony represents merely the opinion of the
witness in the nature of a legal conclusion, it is not of assistance in
reaching a determination. It does not appear that this Service has
previously considered the question of whether a commitment to the Youth
Authority of California and subsequent confinement in an institution
constitute a sentence of imprisonment within the meaning of the
immigration laws.
In Matter of C , 55829/975 (1936 C.O.), the following rule /*/ was
adopted on March 13, 1936, with respect to sentences to reformatories:
Confinement in a reformatory is a sentence to imprisonment
within the meaning of the Immigration Act, unless the local
statutes under which such confinement was ordered indicate that
the primary purpose of such confinement was corrective rather than
penal. Such confinement may be taken to be corrective when it
appears that the person was committed as a minor and
(a) Under local statutory provisions is a juvenile delinquent
required to be confined principally for corrective and educational
treatment in a penal institution, or
(b) If not brought before a court exercising juvenile
jurisdiction, that his minority was the determining factor in the
designation of the place of confinement or the length of the term.
It should be noted, first, that the respondent does not come within
subdivision (a) of the rule in the C case. Under section 700 of the
Welfare and Institutions Code of California, the jurisdiction of
juvenile courts extends to persons under 21 years of age who come within
certain specified classifications, one of which relates to persons who
have violated any law of the State and, under section 740 of that code,
a person adjudged to be a ward of the juvenile court may be committed to
certain associations or institutions, one of which is the Youth
Authority. With respect to persons over 18 and under 21 years of age,
however, section 833.5 of that code provides that any criminal court may
certify the case to the juvenile court, but the criminal court is not
required to do so. Since the record of commitment shows that the
respondent was convicted in the Superior Court and that the proceedings
were not in a juvenile court, it is clear that he was not treated as a
juvenile; that he was not committed to the Youth Authority as a ward of
the juvenile court; and that he was tried under the general provisions
of the penal code.
The next matter to be considered is whether the respondent comes
within subdivision (b) of the rule in the C case (supra), insofar as it
refers to minority as the determining factor in the designation of the
place of confinement. It appears that the commitment to the Youth
Authority was because the respondent was under 21 years of age since
section 1731.5 of the Welfare and Institutions Code (as last amended in
1949) specifies the conditions under which a criminal court may refer to
the Youth Authority a person convicted of a public offense, one of these
conditions being that the individual must have been less than 21 years
of age at the time of apprehension. As stated in the C case, the fact
that minority was a determining factor in the designation of the place
of confinement may be taken to indicate that the confinement was
corrective, but the important consideration is whether the primary
purpose of the confinement was corrective or penal.
Chapter 1 of Division 2.5 of the Welfare and Institutions Code, which
relates to the Youth Authority Act of 1941 as amended in 1943 provides,
in section 1700, that the purpose of this chapter is to protect society
more effectively by substituting for retributive punishment, methods of
training and treatment directed toward the correction and rehabilitation
of young persons found guilty of public offenses. Section 1710, as
amended in 1943, provided as follows:
There is hereby created a Youth Authority for this State,
hereinafter called "the Authority,' whose function is to provide
and administer preventive and corrective training and treatment
for persons committed to it as hereinafter provided.
Section 1710 was amended in 1945 to read as follows:
There is hereby created a Youth Authority for this State,
hereinafter called "the Authority.'
The amendment which was made in 1945 is perhaps significant as
indicating that the function of the Youth Authority is no longer
considered as being restricted merely to providing and administering
preventive and corrective training and treatment, and that its present
functions may include also functions similar to those of other agencies
dealing with persons sentenced to prisons and other institutions.
It appears that the Young Authority, which was created by the act of
1941 as amended in 1943, was originally not an integral part of the
prison system of California. However, section 5000 of the Penal Code of
California (1949) shows that the Department of Corrections was
established by the act of 1944, and section 5001 contains the statement
that the Department of Corrections is composed of various agencies among
which are the Youth Authority and the Adult Authority.
Section 2036 of the penal code of California, which section relates
to the California Vocational Institution in which the subject is
confined, is as follows:
The California Vocational Institution shall be an intermediate
security type institution. Its primary purpose shall be to
provide custody, care, industrial, vocational and other training,
guidance and reformatory help for young men, too mature to be
benefited by the programs of correctional schools for juveniles
and too immature in crime for confinement in prisons. Italics
supplied.
It will be seen from the underscored portion of section 2036 that the
California Vocational Institution is specifically stated to be other
than a correctional school for juveniles. The Welfare and Institutional
Code, which relates, in part, to delinquents and wards of the juvenile
court and to youths, lists in section 1000 the institutions which are
established and maintained in the State of California as correctional
schools for the reception of wards of the juvenile court and other
persons committed to the Youth Authority. Only two institutions for
males are listed; namely, the Preston School of Industry and the Fred
C. Nelles School for Boys. The California Vocational Institution, in
which the respondent is confined, is not listed in Section 1000, and
since it is specifically treated in section 2036 of the Penal Code, that
factor, in itself, indicates that this institution is a penal
institution.
The conclusion that the California Vocational Institution is a penal
institution is borne out by the fact that section 5003 of the penal code
states that the Department of Corrections has jurisdiction over the
California State Prison at San Quentin and Folsom and various other
specified prisons and institutions including the California Vocational
Institution. Section 6082 of the penal code provides that references in
title 7 to "prisons' refers to all facilities, camps, hospitals and
institutions for the confinement, treatment, employment, training and
discipline of persons in the legal custody of the Department of
Corrections. This, therefore, includes in the term "prison' the
California Vocational Institution which is specifically referred to in
section 5003 of title 7.
Part 3 of the penal code relates to imprisonment generally; title 1
of part 3 relates to imprisonment of male prisoners in State prisons;
and chapter 1 of title 1 relates to establishment of State prisons.
Under chapter 1, each of the California prisons and institutions is
treated in a separate article, article 4 of that chapter relating to the
California Vocational Institution.
Section 2041 of the penal code specifically provides that the
provisions of part 3 of this code (relating to imprisonment generally)
apply to the California Vocational Institution and to the persons
confined therein so far as such provisions may be applicable. Section
2042 provides that every person confined in the California Vocational
Institution who escapes or attempts to escape therefrom is guilty of a
crime and shall be imprisoned in a State prison for not exceeding 5
years or in the county jail for not exceeding 1 year.
Section 1771 of the Welfare and Institutions Code of California
provides that every person convicted of a felony and committed to the
Youth Authority shall be discharged when such person reaches his 25th
birthday, unless a petition is filed under article 5. Sections 1780 and
1782 of article 5 of that code provide that if the date of discharge
occurs before the expiration of a period of control equal to the maximum
term prescribed by law for the offense of which he was convicted, and if
the Youth Authority believes that unrestrained freedom for said person
would be dangerous to the public, the Youth Authority shall petition the
court by which the commitment was made; that the court may thereupon
discharge the person, admit him to probation or may commit him to the
State prison; and that, in the case of a person committed to a State
prison under this section, the maximum term of imprisonment shall be a
period equal to the maximum term prescribed by law for the offense of
which he was convicted less the period during which he was under the
control of the Youth Authority. As stated above, the maximum punishment
for the crime of which the respondent was convicted is a term of not
more than 15 years, and under section 1771 the respondent may be
discharged by the Youth Authority when he reaches the age of 25, which
would be a period of over 5 years from the date of his conviction.
Particularly pertinent is the statutory provision above mentioned to the
effect that, from the maximum term, there shall be deducted the time a
person was under the control of the Youth Authority, in cases where the
individual was later committed to a State prison. This shows that the
period under the custody of the Youth Authority is considered an
imprisonment under California law and supports a conclusion that the
confinement in the California Vocational Institution is an imprisonment
within the meaning of the immigration laws.
From the foregoing it will be seen that the maximum punishment for
the crime of which the respondent was convicted is 15 years and that his
commitment to the Youth Authority extends until he becomes 25 years of
age, or a period of 5 years from the date of the respondent's
conviction. The respondent was not tried as a juvenile but under the
general provisions of the penal code. He was not committed to an
institution for the purpose of receiving merely corrective and
reformatory care during his minority, but is subject to the custody of
the Youth Authority until he becomes 25 years of age. /**/ In addition,
the respondent was not committed to one of the established correctional
schools for juvenile delinquents, but is confined in the California
Vocational Institution which is treated in the penal code with other
prisons and institutions of California and which is clearly a part of
the prison system of that State. The definition of "prison' in section
6082 of the penal code, which classes as "prisons' all institutions for
the confinement of persons in the legal custody of the Department of
Corrections (of which the Youth Authority is a part), also establishes
that the confinement of the respondent in the California Vocational
Institution is an imprisonment within the meaning of the immigration
laws. Adding weight to such a conclusion, is the statutory provision,
specifically relating to the California Vocational Institutional, which
makes it a crime, punishable by imprisonment in a State prison for not
exceeding 5 years, for any person confined in that institution to escape
or attempt to escape, and the provisions of section 1782 which permits
the period an individual is under the control of the Youth Authority to
be deducted from the maximum term of imprisonment if he is not
discharged by that Authority and is committed to a State prison. In
view of these factors, it is concluded that the respondent's commitment
to the Youth Authority and subsequent confinement in the California
Vocational Institution constitutes a sentence to imprisonment for a term
of 1 year or more because of conviction in this country of a crime
involving moral turpitude committed within 5 years after entry. The
criminal charge is, therefore, sustained.
Upon consideration of the entire record, the findings of fact and
conclusions of law of the hearing examiner are hereby adopted, except
that finding of fact (6) is amended and findings of fact (7) and (8) are
added as follows:
(6) That on March 1, 1950, in connection with his conviction
for the foregoing offense, the court ordered that the respondent
be committed to the Youth Authority of California for the time
prescribed by law.
(7) That the respondent was received at the California
Vocational Institution on April 7, 1950, under the commitment
dated March 1, 1950, of the Superior Court of Los Angeles County,
Calif.
(8) That the maximum punishment for the crime of which the
respondent was convicted is imprisonment for a term of not more
than 15 years.
Order: It is ordered that the alien be deported to Mexico at
Government expense on the charge stated in the warrant of arrest and on
the following additional charge:
The act of February 5, 1917, in that on or after May 1, 1917,
he has been sentenced to imprisonment for a term of 1 year or more
because of conviction in this country of a crime involving moral
turpitude committed within 5 years after entry, to wit: Burglary
in the second degree.
(*) Editor's note. -- The Solicitor of Labor's view was followed;
also see U.S. ex rel. Cerami v. Uhl, 78 F.(2d) 698 (C.C.A. 2), as to
commitment of a minor to the New York House of Refuge and also see U.S.
ex rel. Popoff v. Reimer, 79 F.(2d) 513 (C.C.A. 2), re commitment of a
17-year-old to the New York State Reformatory, which was held to be a
sentence to imprisonment; the commitment to the New York House of
Refuge was held not to be a sentence to imprisonment. In the unreported
Matter of P , 56074/609, now A-3417212, B.I.A., September 17, 1943, a
violation of 18 U.S.C. 502 (new 2275) and 371 was involved, the unlawful
acts being committed when this alien was 17, and on conviction on March
29, 1941, this alien was committed to the Attorney General for
imprisonment in an institution of a reformatory type and he was
committed to the Federal Reformatory at El Reno, Okla. This reformatory
was regarded in the same light as the Federal Industrial Reformatory at
Chillicothe, Ohio, commitments to which were treated as sentences to
imprisonment.
(**) Editor's note. -- In the unreported Matter of D (55944/389,
Board of Review, November 3, 1937), a sentence of a 22-year-old to the
Pennsylvania Industrial Reformatory in 1921 (for larceny and receiving
stolen goods) was considered a sentence to imprisonment, since the
purpose of commitment was not shown to be primarily corrective.
Likewise in the unreported Matter of W (55916/875, Board of Review, July
3, 1937), as to an alien 17-year-old but not adjudged a juvenile
delinquent although the law would have permitted it (in fact was
convicted of third-degree burglary in 1928) who was confined to the
Minnesota Reformatory.
"Neutral alien,' claiming exemption from service in United States armed forces -- Ineligibility for United States citizenship -- Section 3(a) of the Selective Training and Service Act of 1940, as amended -- Effect of volunteering for induction thereafter.
A "neutral alien,' who last entered the United States as a stowaway on October 24, 1938, with intent to reside here permanently, and who claimed exemption from service in United States armed forces as a "neutral alien' by filing DSS Form 301 on May 6, 1942, rendered himself ineligible to citizenship thereafter under the provisions of section 3( a) of the Selective Training and Service Act of 1940, as amended, it being clear that he had full knowledge of the attendant consequences for filing such a claim. (See Moser v. U.S. of A., 341 U.S. 41, 71 S. Ct. 553.) He was bound by his elective act and his subsequent withdrawal of such claim and application for voluntary induction did not remove the basis for his ineligibility to citizenship. (McGrath v. Kristensen, 340 U.S. 162, held not applicable.)
CHARGE:
Warrant: Act of 1924 -- No visa.
Discussion: This is a motion to reconsider an order directing the
respondent's deportation to Portugal on the warrant charge stated above.
Oral argument on the motion was granted July 25, 1950. Relief is
sought under the provisions of section 19(c) of the Immigration Act of
1917, as amended by Public Law 863 of the 80th Congress.
Respondent, a native and citizen of Portugal, 42 years of age,
arrived in the United States on October 29, 1938, as a stowaway.
Respondent filed a DSS Form 301 on May 6, 1942, and secured exemption
from military service under the Selective Training and Service Act of
1940 as a national of a neutral country. During April of 1944
respondent sought to withdraw this claim for exemption and to volunteer
for military service. Upon receiving a physical examination for
induction, he was rejected. He married a native of Puerto Rico, a
citizen of the United States, in 1945. The record establishes that the
respondent's wife is unemployed and solely dependent upon him for
support.
No issue is raised as to the respondent's deportability. The only
question before us is whether the respondent can legally adjust his
immigration status. Counsel in requesting reconsideration contends that
when respondent volunteered for induction he was thereafter no longer
ineligible for citizenship notwithstanding that he subsequently was
rejected for military service by the armed forces. We find no merit to
counsel's contention.
It has been held that an attempt to withdraw DSS Form 301 filed under
section 3(a) of the Selective Training and Service Act of 1940, as
amended, short of actual service in the armed forces, leaves the neutral
alien ineligible to naturalization. Matter of O , A-1141799 (April 29,
1946); Matter of B N , A-3180834 (September 13, 1949). An alien
ineligible for citizenship cannot be granted suspension of deportation
under the provisions of section 19(c) of the Immigration Act of 1917, as
amended. Matter of G , A-3591839 (July 12, 1946).
Respondent elected in May of 1942 not to serve in the armed forces of
the United States. His wish was respected by the Selective Service
officials. He was accorded the exemption provided by section 3(a) of
the Selective Training and Service Act. Although he applied for
voluntary induction in April of 1944, we must hold that he is bound by
his election in May 1942 and that he is barred from the relief he seeks.
Matter of J , A-4558054, 2, I. & N. Dec. 545 (A.G. June 9, 1947);
Matter of W , A-5113737, 2, I. & N. Dec. 899 (October 14, 1947).
The respondent was 35 years of age when he executed the application
for relief from military service as a neutral alien. He has resided in
this country intermittently for a total of 11 years. He should have had
sufficient intelligence and knowledge to know or inform himself of his
various responsibilities and obligations under the law. Under the
circumstances, we find no merit in the arguments advanced by counsel.
Cf. In re Martinez, 73 F.Supp. 101 (D.C. W.D. Pa., July 23, 1947). The
motion will be denied.
Order: It is ordered that the motion be and the same is hereby
denied.
In accordance with the provisions of section 90.12(a) of title 8,
Code of Federal Regulations, the decision and order of the Board dated
September 26, 1950, are hereby certified to the Attorney General for
review.
The question involved is whether the above-named alien, a native and
citizen of Portugal, a neutral country, can legally adjust his
immigration status after having claimed exemption from United States
military service during World War II.
The applicable provision of the Selective Training and Service Act
(50 U.S.C.App. 303(a)) reads as follows:
Provided, 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 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: * * *.
The applicable provision of the Immigration Act of May 26, 1924, as
amended October 29, 1945 (8 U.S.C. 224(c)), reads as follows:
The term "ineligible to citizenship,' when used in reference to
any individual, includes an individual who is debarred from
becoming a citizen of the United States under sections 703 and 706
of this title, or section 303(a) of appendix to Title 50, or under
any law amendatory of, supplementary to, or in substitution for,
any such sections.
The Immigration Act of February 5, 1917, as amended and supplemented
(8 U.S.C. 155(c)(2)), provides that the Attorney General may suspend
deportation of certain aliens if they are "not racially inadmissible or
incligible to naturalization in the United States * * *.' Italics
supplied.
Mr. C last entered the United States on October 24, 1938, as a
stowaway with intent to reside here permanently but without an
immigration visa. He is, therefore, subject to deportation.
On October 16, 1940, Mr. C registered for Selective Service. On May
6, 1942, he claimed exemption from military service as a national of a
neutral country. On March 12, 1913, a warrant for his arrest in
deportation proceedings was issued under the Immigration Act of 1924 --
No visa. On January 17, 1944, Mr. C was granted a hearing on the
warrant in deportation proceedings. The findings of the presiding
inspector, at this hearing, recommending deportation, at Government
expense, were served on Mr. C 's representative on April 21, 1944. Mr.
C filed a withdrawal of his claim for exemption from military service,
April 30, 1944, and applied for voluntary induction. He was examined
and found physically disqualified on June 5, 1944.
Mr. C , on May 11, 1945, married a native-born citizen of the United
States. No children have been born to this marriage.
The Board of Immigration Appeals has heard oral argument, at Mr. C 's
request, on three occasions and, in order, has affirmed the deportation,
dismissed an appeal of the denial to reopen, and denied a motion to
reconsider the deportation order.
The alien, through counsel, on November 11, 1950, filed a petition
with the Attorney General requesting the relief denied him by the
Immigration and Naturalization Service and by the Board of Immigration
Appeals. The petitioner contends that he had an elderly mother in
Portugal who was financially dependent upon him and that he knew of no
way she could get help if he were inducted into the Army. While this
may be an appealing factor it is not determinative of the rights and
equities in the matter. Many American boys, as well as some from other
lands, who responded to the call to colors did so with considerable
financial sacrifice and much concern for the welfare of their dependents
at home. Nevertheless, they served the country when needed despite
personal and domestic hardships.
The petitioner further contends that he lacked advice of any kind
which would enlighten him as to the consequences of his executing and
filing DSS Form 301. This contention is not borne out by the record
which reflects that the petitioner at his original hearing on the
warrant in deportation proceedings testified as follows:
Q. Did you know that by filing that request for relief from
military service, you could never become a citizen of the United
States?
A. Yes.
Q. Who told you that by filing that form you could never become
a citizen of the United States?
A. The clerk at the local board.
At his reopened hearing, May 5, 1945, ordered to discover, among
other things, whether Mr. C fully understood the consequences of his
request for exemption from military service, he testified as follows:
Q. Did you file that form with the intention or hope of evading
military service?
A. I did not intend to evade military service. I was misled.
Q. You did know, however, that you would be forever ineligible
to United States citizenship by filing DSS Form 301. Did you not?
A. Yes. I was told so at the local board.
By the above-quoted provision of the Selective Training and Service
Act, aliens who elected to claim the benefits thereunder were required
to assume the burdens and responsibilities thereof. Mr. C elected to
claim the benefits; namely, exemption from military service. His wish
was respected and he was, in fact, accorded the exemption provided in
such cases. By his own testimony on two separate occasions it is
abundantly clear that in claiming exemption from military service C did
so with full knowledge of the attendant consequences of his act;
namely, that he would thereafter be debarred from becoming a citizen of
the United States. The language of the statute seems plain and I think
that Congress intended that an alien who elected to claim exemption from
United States military service with full knowledge of the consequences
of his act should be bound by his election. To hold otherwise would
require reading into the act provisions which do not exist.
On the basis of the above facts, the applicable provision of the
Selective Training and Service Act (supra), and the applicable provision
of the Immigration Act of May 26, 1924, as amended (supra), it is my
conclusion that the alien is not eligible to United States citizenship.
Being ineligible to citizenship the alien is thereby ineligible for
suspension of deportation under section 19(c) of the Immigration Act of
February 5, 1917 (8 U.S.C. 155(c)(2)). Therefore, the question before
me; namely, can the above-named alien legally adjust his immigration
status, must be answered in the negative. The petition of the alien is
hereby denied and the order and decision of the Board of Immigration
Appeals, dated September 26, 1950, are hereby approved.
Discussion: This case is before us on motion requesting
reconsideration of the order for the alien's deportation on the charge
that he is in the United States in violation of the act of 1924 in that
he was not in possession of a valid immigration visa at the time of
entry. The alien, a native and citizen of Portugal, about 42 years of
age, entered the United States on October 29, 1938, as a stowaway. On
May 6, 1942, he signed a DSS Form 301 requesting exemption from military
service under the Selective Training and Service Act of 1940 as a
national of a neutral country. During April 1944 he sought to withdraw
the claim for exemption and volunteered for military service; however,
he was rejected for service following a physical examination.
The alien is married to a United States citizen. Discretionary
relief looking toward adjustment of his immigration status in this
country has been denied him as he is ineligible for naturalization
because of seeking relief from military service in the armed forces.
Counsel seeks reconsideration of the case on the basis of the
decision of the United States Supreme Court in J. Howard McGrath v.
Peder Kristian Kristensen, decided December 11, 1950. Counsel in his
motion fails to point out any similarity between the instant case and
the Kristensen case. The Kristensen case was concerned with a neutral
alien who had been admitted to the United States temporarily. The issue
in that case was whether Kristensen was residing in the United States.
In the instant case, the subject alien entered this country as a
stowaway with the intent of remaining permanently in the United States.
The issue in the Kristensen case is not present in the instant case. In
addition, this case was exhaustively reviewed by the Acting Attorney
General, and on December 20, 1950, he affirmed an order of this Board
denying the request for further consideration. This decision was made
after the decision of the Supreme Court in the Kristensen case.
In view of the foregoing factors, the request for stay of
deportation, and for further consideration, and for oral argument will
be denied.
Order: It is ordered that the motion requesting further
consideration and oral argument be and the same is hereby denied.
It is further ordered, That a stay of deportation be denied.
"Entry' into the United States within meaning of Immigration Laws.
An alien, who departed from the United States to Mexico in 1944, and returned to the United States in 1944, while on furlough from the United States Army (wherein he served from October 12, 1942, to October 6, 1945, when he was honorably discharged) is deemed to have made an entry (when he returned in 1944) within the contemplation of the immigration laws; and he was deemed to have been deported in 1949 pursuant to law on the basis of such entry /*/ (and in addition, it was too late to attack the validity of the order of deportation executed in this case in 1949 as one not in pursuance of law; see 4, I. & N. Dec. 173).
CHARGES:
Warrant: Act of 1924 -- No immigration visa.
Act of 1929 -- Arrested and deported -- reentered within 1 year.
Lodged: Act of 1917 -- Admits crime prior to entry: Burglary.
Act of 1917 -- Convicted of crime prior to entry: Burglary and
larceny.
Discussion: This matter is before us by reason of an appeal from the
decision of the Assistant Commissioner of Immigration and
Naturalization, Adjudications Division, dated August 18, 1950, wherein
deportation of the subject hereof to Mexico has been directed on all of
the charges hereinabove set forth, except as to the offenses of larceny.
The subject of this proceeding testified that he was born in
Guadalajara, Jal., Mexico, on August 10, 1907, and that he is a citizen
of the country of his nativity. He further testified that he last
entered the United States from Mexico at Del Rio, Tex., in an automobile
accompanied by two Army officers.
The evidence of record shows that the appellant first entered the
United States at Laredo, Tex., during the year of 1924 or 1925 and that
he remained here until about the month of June 1944. It is asserted
that his mother died and for that reason he proceeded to Mexico. He
reentered the United States either during the month of November or
December 1944 at El Paso, Tex., at which time he presented evidence of
furlough from the United States Army, he having been inducted on October
12, 1942. He was honorably discharged from the United States Army on
October 6, 1945.
The evidence of record also shows that the subject hereof was
deported from the United States on January 21, 1949, and he alleges that
although he twice applied for permission to reapply for admission he had
received no response to his letters of application. Notwithstanding the
prior deportation, he nevertheless entered the United States in the
circumstances hereinabove first set forth.
On August 10, 1939, the alien was convicted in Illinois for stealing
United States currency in the value of $14, but because of alleged
irregularity in procedure this offense will not be considered in
connection with the present proceeding.
On July 29, 1935, the appellant was convicted in Texas for the
offense of burglary for which offense he was sentenced to 3 years'
imprisonment, but the execution thereof was suspended during good
behavior. He was also charged with absence without leave in 1945 by the
military authorities for which he was sentenced to 3 months'
imprisonment. The offense of burglary in 1935 forms the basis for the
present order of deportation on the charges placed against the alien
during the course of the proceeding.
No record of the entry of the appellant can be located, either in
1925, 1944, or 1949, and inasmuch as he was coming to the United States
to remain, his entry subsequent to the approval of the Immigration Act
of 1924 (approved May 26, 1924), required him to have a consular
immigration visa, as a prerequisite to lawful admission (8 U.S.C. 213).
Inasmuch as he was not in possession of such document, he is subject to
deportation pursuant to the provisions of that act (8 U.S.C. 214, 215).
In addition thereto, the evidence shows this individual was arrested and
deported from the United States on January 21, 1949, and his subsequent
entry without permission, as required by statute, renders him subject to
deportation on the additional charge hereinabove set forth, to wit:
Reentered after arrest and deportation pursuant to law (act of March 4,
1929).
That this alien is subject to deportation is established adequately
by the evidence of record.
The facts in this case are discussed in considerable detail in the
opinion of the Assistant Commissioner of Immigration and Naturalization,
Adjudications Division, and it is believed unnecessary to repeat all of
the discussion therein contained.
The principal contention of counsel on appeal is that the alien's
entry in 1944 was as a member of the Armed Forces of the United States
and that as such he did not effect entry to the United States within the
meaning of the law and that by reason thereof he was not deported in
pursuance of law in 1949.
As hereinabove set forth no record of lawful admission of the
appellant can be located. Section 4(b) of the Immigration Act approved
May 26, 1924 (8 U.S.C. 204) defines a nonquota immigrant as an immigrant
previously lawfully admitted to the United States who is returning from
a temporary visit abroad.
The act of June 28, 1940 (54 Stat. 673, 8 U.S.C. 451) provides "any
alien seeking to enter the United States who does not present a visa
(except in emergency cases defined by the Secretary of State), a reentry
permit or a border crossing identification card, shall be excluded from
admission to the United States.'
Section 14 of the act approved May 26, 1924 (8 U.S.C. 214), provides:
Any alien who at any time after entering the United States is
found to have been at the time of entry not entitled under this
act to enter the United States * * * shall be taken into custody
and deported in the same manner as provided in sections 19 and 20
of the Immigration Act of 1917 * * * (8 U.S.C. 155).
The evidence of record in this case shows that the alien proceeded to
Mexico in 1944 because of the death of his mother while he was on
furlough. It cannot be disputed that according to his own testimony he
reentered the United States physically from Mexico in 1944. In the case
of Schoeps v. Carmichael, 177 F.(2d), 391 (C.A. 9, 1949), at page 396,
the court said:
In order for an alien's return to this country to constitute an
"entry' as contemplated by 8 U.S.C.A. sec. 155(a) (supra), his
departure must have been voluntary, with knowledge that his
destination is foreign. /1/ The intention to return to this
country, whether after a mere few hours or an extended vacation
abroad, is immaterial. If the length of time spent abroad is an
element to be considered, it must be made so by Congress, not the
courts.'
The departure of the subject alien was voluntary in all respects and,
therefore the case of U.S. v. Karnuth, 1 F.Supp. 370, is not analogous
to the case at bar.
In addition, it is too late to attack the validity of the order of
deportation executed in this case in 1949 as one not in pursuance of
law. In the case of U.S. ex rel. Koehler v. Corsi, 60 F.(2d) 123 (C.C.
A. 2, 1932), the court said "it is now too late to attack that
deportation as one not in pursuance of law.' This Board has held
similarly on numerous occasions. See W J R , A-3844720 decided April
29, 1949. The courts have supported this position, and in the case of
U.S. ex rel. Steffner v. Carmichael, 183 F.(2d) 19, June 21, 1950 (C.C.
A. 5), the court said:
Where an alien has been deported from the United States
pursuant to a warrant of deportation, we do not think it
permissible to allow a collateral attack on the previous
deportation order in a subsequent deportation proceeding unless we
are convinced there was a gross miscarriage of justice in the
former proceeding.
We believe the principal problem in this case is one pertaining to
possible discretionary action predicated upon the alien's long residence
in the United States and the hardship to obtain to the six United States
born children in the event the subject parent should be deported.
The appellant alleged that he was first married in 1928 and his wife
died in 1943, and he further alleged that during that year he remarried
and the second wife died in 1946. There is some question as to these
allegations as hereinafter explained. The alien asserts that he is the
father of six children born in this country, all of whom are citizens of
the United States, their ages ranging from 12 to 20 years, but these
children were apparently born out of wedlock, as hereinafter explained.
It is said that not only these children are dependent upon the subject
but he also maintains his sister and her offspring.
The criminal offenses herein set forth were committed in 1935 and
1938. On our previous consideration of this case on June 18, 1948, we
pointed out that the six native-born children hereinabove referred to
were the offspring of a common-law relationship of the alien with one L
R , a citizen of this country. The record indicates that she died in
1943 and the custody of the said children was awarded by the juvenile
court in Chicago, Ill., to the appellant's sister-in-law. The
sister-in-law previously stated that she received $76 every 15 days from
the Office of Dependent Children, Cook County, Ill., for the support of
the said children and that the appellant contributed very little to
their support, subsequent to his discharge from the Army.
Despite the fact that the alien has resided in the United States for
an aggregate of almost 25 years and the fact that the criminal offenses
herein set forth occurred many years ago, the record pertaining to this
alien's case, which record must be considered in its entirety -- since
the question before us is now one of discretionary relief -- including
all of the representations of counsel, leads us to the conclusion that
this alien does not sufficiently establish that his case is one wherein
other than dismissal of the appeal is warranted.
Order: It is ordered that the appeal from the decision of the
Assistant Commissioner of Immigration and Naturalization, Adjudications
Division, be and the same is hereby dismissed.
(*) Editor's note. -- Cf. Matter of J , A-6972834, C.O. March 18,
1949 (3, I. & N. Dec. 536 and Matter of O'D , A-1194276, B.I.A. June 7,
1949 (Int. Dec. 51) 3, I. & N. Dec. 632.)
(1) Delgadillo v. Carmichael, 332 U.S. 388 (1947), 68 S.Ct. 10, 92
L.Ed. 17; United States ex rel. Claussen v. Day, 279 U.S. 398 (1929),
49 S.Ct. 354, 73 L.Ed. 758; United States ex rel. Stapf v. Corsi, 287
U.S. 129 (1932), 53 S.Ct. 40, 77, L.Ed. 215; Carmichael v. Delaney, 170
F.(2d) 239 (C.A. 9, 1948); Di Pasquale v. Karnuth, 158 F.(2d) 878
(C.C.A. 2, 1947).
Expulsion hearings -- Applicability of Administrative Procedure Act (1946)
The Administrative Procedure Act (June 11, 1946), is not applicable to an expulsion proceeding initiated previous to September 11, 1946. /*/ (60 Stat. 237, 5 U.S.C. Secs. 1001 et seq.).
CHARGES:
Warrant: Act of 1917 -- Prostitute at time of entry.
Act of 1917 -- Found practicing prostitution after entry.
Act of 1924 -- Immigration visa not valid because procured by fraud
or misrepresentation.
Discussion: On July 7, 1950, we dismissed the appeal from an order
of deportation entered by the Assistant Commissioner. The charges on
which the order was based were that the respondent was a prostitute at
the time of her entry into the United States and that her immigration
visa was not valid because it was procured by fraud and
misrepresentation.
The case is presently before us on motion by counsel asking for
reconsideration. The basis assigned for the motion are (1) that the
hearing did not conform to the requirements of the Administrative
Procedure Act (2) that additional evidence shows the confession relied
upon to support the charges was improperly obtained, and (3) that new
evidence now available to the respondent shows bias on the part of an
important Government witness.
If there were anything in the record or submitted by counsel in any
wise showing that the respondent had been treated unfairly in this
proceeding, we would be quick and eager to correct it, particularly
because the case has certain sentimental appeal by reason of the
respondent's youth and inexperience when the events involved occurred
and because of her young child; but our review of the record and
representations by counsel convinces us that the proceeding has been
eminently fair, that it conforms to established standards, and resolving
in her favor any doubt which might exist would not result in altering
the conclusion heretofore reached.
The first point presented by counsel can be readily disposed of. The
act concerned was enacted on June 11, 1946, and became effective (with
exceptions, not involved herein) 3 months thereafter. Section 12,
however, provided that "no procedural requirement shall be mandatory as
to any agency proceeding initiated prior to the effective date of such
requirement.' It has been judicially determined that the act is
inapplicable to a proceeding initiated previous to September 11, 1946.
(Harisiades v. Shaughnessy, 90 F.Supp. 431 (and 397) (S.D.N.Y., 1950)).
Examination of the record shows the warrant of arrest was issued on
October 29, 1945, and was served on the respondent on May 21, 1946, and
that it set forth the charges sustained in the order of deportation.
Hence the motion cannot prevail on the first point contained therein.
Counsel has submitted with his motion an affidavit, dated September
11, 1949, by P E V , wherein he states that he was the respondent's
husband from 1941 to 1944 and that from his personal knowledge and
observation the respondent did not at any time practice prostitution and
that the statement taken from her was taken, in his opinion, by putting
her in fear of being separated from her child. Presumably this
constitutes the "additional evidence' on which counsel relies to support
points (2) and (3).
The probative value of the statement by the respondent's former
husband is minimized when considered with the record. In the
"confession,' acceptance of which is opposed by counsel, the respondent
stated on July 25, 1942, at the Boston, Mass., Police Department:
I also admit I have been having intercourse for the last three
months with men, and receiving money for same. I have had a hard
time getting along as my husband works for the United Fruit Co. I
have not seen him for the last five months.
During the course of the hearing Police Officer Cote testified in
reply to queries by the respondent's representative, as follows:
Q. Did you meet her husband at all?
A. After the arrest.
Q. You met him in the Roxbury District Court?
A. No; in the station. He had just come from sea, I believe.
The respondent testified concerning her living conditions and the
court proceedings (which followed her giving the "confession') on a
charge of being "an idle and disorderly person' as follows:
I was living at 69 Gainsboro Street. I was here all alone. I
was very lonely. I made friends with some people in the building.
* * * They locked me up at Charles Street. Finally my husband
came in and bailed me out. Then I appeared in court. You have the
record. Judge Miles said, "Why don't you take this young lady
home and we will forget the matter.' My husband said "No; I want
her to go on probation so she could be watched.' So he put me on
probation * * * (p. 14).
Thus it is apparent that when the events occurred which are the basis
for the present proceeding, the respondent's then husband was absent
from her and had been for some considerable time and could not have had
personal knowledge concerning her conduct; also, her testimony shows
that when she was before the court he, the then husband, was
mistrustful. Subsequent events may well have removed that mistrust;
but neither his confidence in her integrity, nor lack of confidence, can
outweigh the evidence supplied by the respondent herself, even though
received with the utmost caution, when it is corroborated as here.
The full discussion of the record contained in our memorandum of July
7, 1950, makes further recital unnecessary for disposition of the
motion.
Order: It is ordered that the motion for reconsideration and stay of
deportation be denied.
(*) Editor's note. -- Public Law 843, 81st Cong., approved September
27, 1950, relates to the inapplicability of the Administrative Procedure
Act (supra), to expulsion proceedings and provides as follows:
"Proceedings under law relating to the * * * expulsion of aliens
shall hereafter be without regard to the provisions of Sections 5, 7,
and 8 of the Administrative Procedure Act (5 U.S.C. 1004, 1006, 1007).'
Editor's note. -- To like effect in unreported Matter of P ,
A-1631944, B.I.A. January 5, 1951.
Board of Special Inquiry hearing -- Applicability of Administrative Procedure Act (1946). /*/
The Administrative Procedure Act (June 11, 1946) does not apply to Board of Special Inquiry hearings /**/ (60 Stat. 237, 5 U.S.C. secs. 1001 et seq.).
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 -- No visa.
Act of 1917, as amended -- Departed to avoid military service.
Discussion: This case is before us on appeal from an order of the
Assistant Commissioner of June 14, 1950, affirming a decision of a board
of special inquiry excluding the subject alien from admission to the
United States on the above-stated grounds.
We have carefully reviewed the record in the case and counsel's brief
on appeal. The facts and circumstances of the case are fully discussed
by the Assistant Commissioner in his opinion, and we agree with the
conclusion reached that the subject alien is inadmissible to this
country.
Counsel's brief on appeal is directed mainly to the hearing before
the board of special inquiry. It is maintained that the hearing was
unfair and illegal in that the board of special inquiry was one in which
that Board acted as investigator, prosecutor, judge, and jury. In
support of this position, counsel cites Wong Yang Sung v. McGrath, 339
U.S. 33, 70 S.Ct. 445, 94 L.Ed. 383 (1950). In this regard it should be
pointed out that it has been held that the Administrative Procedure Act
does not apply to board of special inquiry hearings. (U. S. ex rel.
Saclarides et al. v. Shaughnessy, 180 F.(2d) 687 (C.A. 2, 1950); U.S.
ex rel. Frisch v. Miller, 181 F.(2d) 360 (C.A. 5, 1950), 18 L.W. 2466).
The appeal from the decision of the Commissioner will be dismissed.
Order: It is ordered that the appeal be and the same is hereby
dismissed.
(*) Editor's note. -- As to its inapplicability to civil fine
proceedings, see unreported Matter of S.S. Bunty, F-5532, B.I.A.
6-16-50 (Sec. 20 of Immigration Act of 1924 involved).
It has been held inapplicable to a hearing provided for in 8 C.F.R.
171.5 when an adjustment of status is requested pursuant to the
provisions of section 4 of the Displaced Persons Act of 1948 (said
statute not requiring a hearing) in Matter of B , A-6815891, C.O.
4-17-50 (Int. Dec. #147).
(**) Editor's note. -- To like effect as in above Interim Decision,
unreported Matter of L T , A-6815697, B.I.A. 6-12-50 and Matter of R ,
A-7138126, 7, B.I.A. 6-16-50.
Government official, killing of -- When "political offense' within the meaning of the 2d proviso to section 3 of the Immigration Act of February 5, 1917 -- Crime involving moral turpitude -- Premeditated manslaughter (Poland, 1927) -- Applicability of exclusion ground under act of October 16, 1918, as amended, relating to killing of government official.
(1) For an offense to constitute an "offense purely political,' within the meaning of the second proviso to Sec. 3 of the Imm. Act of Feb. 5, 1917, it must be committed in connection with some action in concert with others (or a common movement) for a political purpose; so that the benefits of this proviso are not deemed available to one who commits the act individually, independently without being connected with anyone else.
(2) Premeditated manslaughter (in Poland in 1927) is an offense which involves moral turpitude.
(3) To sustain an exclusion-charge under the Act of Oct. 16, 1918, as amended, on the ground of the alien's belief in the necessity of assaulting or killing an official of an organized government, it must be found that the assassin was motivated because of the victim's official capacity (the character of his office rather than the personal character of the victim).
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917 -- Convicted of and admits crime -- homicide (husband).
Act of October 16, 1918, as amended -- Believed in the duty,
necessity, and propriety of the unlawful assaulting and killing of
officers of an organized government (husband).
Discussion: The record relates to a 38-year-old married female and
her 42-year-old husband and 7-year-old daughter, all of whom are natives
of Poland, who allegedly never acquired citizenship in Poland or any
other country and are stateless. The record discloses that the husband
entered Germany in 1944 from Poland and departed therefrom in 1945. He
remained outside of Germany until March 1949. During the interim he
resided in Lichtenstein until July 1946 and then in France until March
1949. He testified that he departed from Germany to avoid falling into
the hands of the Russians.
The wife and daughter entered Germany in 1945 and have since resided
in that country. Upon their application for classification as displaced
persons, the wife was given the characterization of the principal
applicant because she qualified under the Act of June 25, 1948, and the
husband and child were classified as the accompanying spouse and minor
child.
The appellants are in possession of quota immigration visas issued on
December 8, 1949, by the American counsel at Munich, Germany, under the
Displaced Persons Act of June 25, 1948. The passport requirements have
been waived by the Department of State.
The husband testified that he was arrested on June 7, 1927, in
Warsaw, Poland, and was convicted by a duly constituted court in Poland
of the crime of premeditated manslaughter. No record of conviction was
introduced into evidence and apparently is unavailable. However two
publications were introduced into evidence they being "The Case of Boris
Kowerda' published July 15, 1927, and a copy of "Tchasowoj La
Sentinelle' of June 15, 1937. The husband stated that he was familiar
with the contents of these publications, that they related to him and
the incidents which resulted in his arrest and conviction. He further
stated that the author had access to the official court records.
The record discloses that on June 7, 1927, the husband in a railroad
station at Warsaw, Poland, fired six shots at the officially accredited
Ambassador of the Union of Soviet Socialist Republics. One of the shots
fired by the husband took fatal effect and resulted in the death of the
Ambassador. What purports to be a copy of the official indictment,
states that the act was committed with the intention of taking the life
of the Ambassador. The husband was convicted of premeditated
manslaughter and sentenced to life imprisonment, which was commuted in
1928 to 10 years of hard labor. He testified that he was released from
imprisonment on June 15, 1937.
The record discloses that the husband has testified that he took the
life of the Ambassador with premeditation and malice aforethought and
that he assumed that the section of law under which he was convicted
included the premeditated taking of a life. He testified that his act
of assassination was committed in furtherance of his desire to overthrow
the existing regime and also because his victim was a close associate of
Lenin and one of the chief administrators of the Ural District, infamous
for his acts of persecution against the Russian people and a direct
participant in the execution of the Czar and his family and a member of
the Comintern. He further testified as follows:
Q. Did you take the life of W solely because he was a member or
official representative of the Soviet Government?
A. Yes; but the other facts I have stated helped me make the
decision.
Q. At the time you took the life of W , did you believe in,
advise, advocate or teach the unlawful assaulting or killing of
any officer or officers, either of specific individuals, or
officers generally, of any organized government, because of their
official character?
A. I committed this act independently, individually without
being connected with anyone else.
On the bases of the foregoing, the board of special inquiry found the
husband inadmissible under the act of 1917 as one who has been convicted
of and admits the commission of a crime involving moral turpitude, to
wit: the taking of the life of another with premeditation and malice
aforethought and under the Act of October 16, 1918, as one who believed
in the necessity of the unlawful assaulting or killing of a specific
individual, official of an organized government because of his official
character.
In reference to the ground that he was convicted of and admits the
commission before entry of a crime involving moral turpitude, it is
noted that the 2d proviso to section 3 of the Immigration Act of
February 5, 1917, provides:
That nothing in this act shall exclude, if otherwise
admissible, persons convicted, or who admit the commission, or who
teach or advocate the commission of an offense purely political.
In order to determine whether or not the husband is entitled to the
benefits of this proviso, it must first be ascertained whether he
committed an "offense purely political.' The 1917 act does not define
the clause and the proviso itself gives no indication of what
circumstances are necessary to bring an offense within the terms of the
clause. There was considerable comment on the floor of the House and on
the floor of the Senate concerning the proviso, but the remarks give no
clear indication of the legislative intent or the basis upon which a few
of the legislators predicated their conclusions that several offenses
discussed were or were not political offenses. No court cases have been
found interpreting the meaning of the clause.
It appears to be proper, therefore, to consider the construction that
has been put upon the meaning of the term "political offenses' appearing
in extradition treaties, for which extradition will not be granted.
These treaties do not define the term and, except for making provision
in some of them that acts against the life of the sovereign or head of a
state, or members of his family, shall not be regarded as political
offenses, give no indication of its meaning. Black's Law Dictionary, p.
1376, citing 2 Stephen's Criminal Law 70, states that, "as a designation
of a class of crimes usually excepted from extradition treaties,' the
term political offenses "denotes crimes which are incidental to and form
a part of political disturbances; but it might also be understood to
include offenses consisting in an attack upon the political order of
things established in the country where committed, and even to include
offenses committed to obtain any political object.'
The Stephen's definition was considered in the Castioni case (1 Q.B.
149, 1891), in which extradition was sought on a charge of murder and
was refused. The deceased was a member of the State Council of a canton
in Switzerland. He was shot to death by the accused, who was one of an
armed crowd that broke into the municipal palace. The crowd occupied
the palace and a provisional government was set up, which was dispersed
by the armed intervention of the Federal government. During the habeas
corpus proceedings, one of the witnesses stated that the death was a
misfortune, not necessary to the uprising, and some question was raised
regarding whether Castioni was motivated by revenge. It had been
suggested by Mr. J. S. Mill that "political offense' might be defined as
any offense committed in the course of or furthering of civil war,
insurrection, or political commotion. Reference had also been made to
the Stephen's definition, which is quoted in the Court's comments below,
suggesting that criminals were not to be surrendered up for extradition
crimes if those crimes were incidental to and formed a part of a
political disturbance.
Judge Denman stated:
I do not think it necessary or desirable that we should attempt
to put into language in the shape of an exhaustive definition
exactly the whole state of things, or every state of things which
might bring a particular case within the description of an offense
of a political character. I wish, however, to express an opinion
as to one matter upon which I entertain a very strong opinion.
That is, that if the description given by Mr. John Stuart Mill
were to be construed in the sense that it really means any act
which takes place in the course of a political rising without
reference to the object and intention of it, and other
circumstances connected with it, I should say that it was a wrong
definition and one which could not be legally applied to the words
used in the acts of Parliament.
Sir Charles Russell suggested that "in the course of' was to be
read with the following words, "or in furtherance of,' and that
"in furtherance of' is equivalent to "in the course of.' I cannot
quite think that this was the intention of the speaker, or is the
natural meaning of the expression; but I entirely concur with the
observation of the Solicitor General that in the other sense of
the words, if they are not to be construed as merely equivalent
expressions, it would be a wrong definition. I think that in
order to bring the case within the words of the act and to exclude
extradition for such an act as murder, which is one of the
extradition offenses, it must at least be shown that the act is
done in furtherance of, done with the intention of assistance, as
a sort of overt act in the course of acting in a political matter,
a political rising, or a disturbance between two parties in the
state as to which is to have the government in its hands, before
it can be brought within the meaning of the words used in the act
* * * Then it is reduced to the question of whether, upon the
depositions sent over and upon the depositions before the
magistrate and upon the fresh facts, if there be any, which are
brought before us on the affidavits, we think that this was an act
done, not only in the course of a political rising, but as part of
a political rising. Here I must say at once that I assent
entirely to the observation that we cannot decide that question
merely by considering whether the act done at the moment at which
it was done was a wise act in the sense of being an act which the
man who did it would have been wise in doing with the view of
promoting the cause in which he was engaged. I do not think it
would be at all consistent with the real meaning of the words of
the statute if we were to attempt so to limit it * * *. The
question really is, whether, upon the facts, it is clear that the
man was acting as one of a number of persons engaged in acts of
violence of a political character with a political object, and as
part of the political movement and rising in which he was taking
part * * *. I have carefully followed the discussion as to the
facts of the case, and if it were necessary I could go through
them all one by one, and point out, I think, that, looking at the
way in which the evidence was given, and at the evidence itself,
there is nothing in my judgment to displace the view which I take
of the case, that at the moment at which Castioni fired the shot
the reasonable presumption is, not that it is a matter of absolute
certainty (we cannot be absolutely certain about anything as to
men's motives, but the reasonable assumption is that he, at the
moment knowing nothing about Rossi, as far as we know, fired that
shot -- that he fired it thinking it would advance, and that it
was an act which was in furtherance of, and then intended it to be
in furtherance of, the very object which the rising had taken
place in order to promote, and to get rid of the Government, who,
he might, until he had absolutely got into the place, have
supposed were resisting the entrance of the people to take that
place.
In the same case, Judge Hawkins also took occasion to point out that
he would not regard as a political offense a murder committed during a
political rising by a person who was motivated by a desire for private
revenge or for the purpose of doing injury to another. As to what
constitutes a political offense he stated:
I have thought over this matter very much indeed and I have
thought whether any definition can be given of the political
character of the crime -- I mean to say, in language which is
satisfactory. I have found none at all and I can imagine for
myself, none so satisfactory and, to my mind, so complete as that
which I find in a work which I now have before me and the language
of which, for the purpose of my present judgment, I entirely
adopt, and that is the expression of my brother Stephen in his
History of the Criminal Law of England * * *. "The expression in
the Extradition Act ought (unless some better interpretation of it
can be suggested) to be interpreted to mean that fugitive
criminals are not to be surrendered for extradition crimes, if
those crimes were incidental to and formed a part of political
disturbances.'
Judge Stephen also sitting in the same case cautioned against giving
too wide a meaning to his definition and stated that, having given his
view upon the interpretation to be placed on the act, he had nothing to
add to it.
According to the Castioni case (supra), therefore, a political
offense is an offense incidental to and forming a part of a political
disturbance. "Accepting the court's definition in the Castioni case as
embodying the general view entertained on the subject as to what
constituted political crime, we find that two conditions must concur to
bring the act, otherwise criminal, within the exemption. These
conditions are:
(a) The existence of political revolt or disturbance; (b) the fact
that the act in question was incident to and formed a part of such
disturbance.' (Coudert, Proceedings American Society of International
Law, 1909 p. 134).
In a later case (In re Meunier, 2 Q.B. 415 (1894)), extradition was
granted of an anarchist who had blown up a barracks. The court in that
case stated:
It appears to me that, in order to constitute an offense of a
political character, there must be two or more parties in the
state, each seeking to impose the government of their own choice
on the other, and that, if the offense is committed by one side or
the other in pursuance of that object, it is a political offense,
otherwise not. In the present case there are not two parties in
the state, each seeking to impose the government of their own
choice on the other; for the party with whom the accused is
identified by the evidence, and by his own voluntary statement,
namely, the party of anarchy, is the enemy of all governments.
Their efforts are directed primarily against the general body of
citizens. They may, secondarily and incidentally, commit offenses
against some particular government; but anarchist offenses are
mainly directed against private citizens * * *. I am of the
opinion that the crime charged was not a political offense within
the meaning of the Extradition Act.
With reference to the Meunier case (supra), Deere commented:
The rise of terroristic crimes in recent years, however, has
met the disapproval of the United States as well as of Great
Britain, but there is no United States case corresponding to the
Meunier case in Great Britain * * *. In denying a political
character to the offense, Justice Gave said: "In order to
constitute an offense of a political character, there must be two
or more parties in the state, each seeking to impose the
government of their own choice on the other, and * * * if the
offense is committed by one side or the other in pursuance of that
object, it is a political offense, otherwise not.' Obviously, this
definition was directed against anarchists and although it has
been criticized as unduly restrictive, there was apparently no
intention to supplant or modify the Castioni case, in which the
formula was certainly broad enough to cover any relative political
offense.
The definitions appearing in the Castioni case were considered in the
case of the Salvadoran refugees, 62 Fed. 964 (D.C.N.D. Calif., 1894) and
62 Fed. 972. See also 29 American Law Review 1). Extradition was sought
in these cases (a) for the hanging of four persons, who allegedly had
not given their assistance in defending the government against a revolt;
(b) for the particularly brutal killing of a fifth person, alleged to
be a spy; (c) for the robbery of a bank, the proceeds of which were
allegedly to be used to pay soldiers of the defending forces; (d) for
the shooting of a sixth person, a military officer of the defending
forces, who had allegedly gone over to the attacking forces. The
offenses were committed during the existence of a state of siege in the
country and the progress of actual hostilities between the contending
forces, wherein the persons sought to be extradited were seeking to
maintain the authority of the then existing government against a
revolutionary uprising. They were held to be political offenses, and
not extraditable.
Judge Morrow, in deciding the case, cited with approval the Castioni
case, stating that the array of distinguished counsel appearing in
connection with it and the character of the court commended the case as
one of the highest authority. He did not attempt to define a political
offense, nor did he specifically adopt any of the definitions proposed.
He relied apparently merely upon the similarity of the facts in the two
cases:
The opinions of the judges as to the political character of the
crime charged against Castioni, upon the facts stated, is
exceedingly interesting, but I need only refer to the following
passage. Judge Denman says: "The question really is whether,
upon the facts, it is clear that the man was acting as one of a
number of persons engaged in acts of violence of a political
character with a political object, and as part of the political
movement and rising in which he was taking part.' * * * Applying,
by analogy, the action of the English Court in that case to the
four cases now before me, under consideration, the conclusion
follows that the crimes charged here, associated as they are with
the actual conflict of armed forces, are of a political character.
In U.S. ex rel. Giletti v. Commissioner (35 F.(2d) 687 (C.C.A. 2,
November 4, 1929)), where deportation to Italy was sought for conviction
of a crime in the United States and was resisted as an abuse of
discretion for failure to permit Giletti to leave for some country other
than Italy, the court, in upholding his deportability, stated during the
course of its discussion that the offense was "apparently political, for
which he could not be extradited.' Giletti had killed another Italian in
New York, apparently in a brawl between Fascists and anti Fascists.
The Attorney General of the United States in an opinion (39 Op. A.G.
215), quoted Lord Denman's definition of a political offense in the
Castioni case and also the Stephen's definition. He also quoted a
proposed definition in a draft Convention on Extradition, prepared by
the Harvard Research in International Law. He did not adopt any of
these definitions, however, and stated that it was generally agreed that
no satisfactory and acceptable definition of the term had as yet been
found.
In the Cazo case (Case of Cazo, I Moore, Extradition 324-325),
extradition was sought and refused for murder, assault with intent to
commit murder, and robbery, committed by revolutionists during a raid on
a town. In the Guerra case (Case of Guerra, IV Moore, Digest of
International Law, 335, 336), extradition was sought and refused for
murder, arson, robbery, and kidnapping in connection with an attack by
revolutionary forces upon 40 Mexican soldiers in the town of San
Ignacio, during the course of which private citizens were also assaulted
and robbed and their houses burned and three persons kidnapped. The
Ruiz case (Case of Ruiz, IV Hackworth, Digest of International Law, 50
52), arose out of the same attack.
In the Peuren case, the accused had been a member of a revolutionary
party. Extradition was sought for murder and robbery. The United
States Commissioner held Peuren to be extraditable. The Secretary of
State ordered a new hearing on the ground of new evidence tending to
establish that the offenses were political, and extradition eventually
was refused (Deere, Political Offenses in the Law and Practice of
Extradition, 27 American Journal of International Law, p. 267. See also
Foreign Relations of the United States, 1909).
In the Rudewitz case (IV Hackforth Digest of International Law,
49-50), extradition was sought for the murder of three persons and the
robbery and burning of their premises. The United States Commissioner
for the Northern District of Illinois found against the accused.
Extradition was refused by the Secretary of State. The accused was a
member of a revolutionary group that had voted the killings and the
burning. The Secretary stated:
In view of these facts and circumstances, the Department, after
a mature and careful consideration of the evidence so adduced in
this case, finds it is forced to the conclusion that the offenses
of killing and burning with which the accused is charged are
clearly political in their nature, and that the robbery committed
on the same occasion was a natural incident to executing the
resolutions of the revolutionary group and cannot be treated as a
separate offense, certainly not as a separate offense by this man
without some specific identification of him with that particular
act, and of this there is no evidence * * * However much the
Government of the United States may deplore or condemn acts of
violence done in the commission of acts having political purpose,
however necessary or unjustified they may be considered, if those
acts were in fact done in the execution of such a purpose, there
is no right to issue a warrant of extradition therefor.
The Government of the United States finds itself impelled to
these conclusions not only by the generally accepted rules of
international law which forbid the surrender of political
fugitives, by the principles of internal jurisprudence, which,
proclaimed and acted upon by the courts of this and other
countries, declared that "a person acting as one of a number of
persons engaged in acts of violence of a political character, with
a political object, and as part of the political movement and
rising in which he is taking part' is a political offender and so
entitled to an asylum in this country; and by the long and
consistent course of rulings in which the executive branch of this
Government has expressly adopted and carried out such laws and
principles -- but also by the express provision of article III of
the Extradition Treaty between this Government and Russia, which,
in precise terms, prohibits the surrender of political offenders.
In volume II of his work on International Law, Charles Cheney Hyde,
formerly the Solicitor for the Department of State, analyzed the
circumstances present when a fugitive within the United States whose
surrender had been sought by a foreign government had been regarded by
the executive or by the judicial department of the United States as a
political offender within the meaning of a treaty provision and
therefore, had been discharged from custody. He concluded that in every
case the following elements had been present:
(1) There had been an uprising of revolutionary origin and
purpose, of vast or insignificant proportions, against the
demanding government.
(2) The accused had been connected with the movement.
(3) Either the acts charged against the accused had been deemed
to be incidental to the movement or the evidence had failed to
show that acts committed in the course of the uprising which
possibly might not be justly regarded as incidental thereto, had
in fact been committed by the accused.
It was his conclusion that, in the absence of an uprising, acts of
violence, whether for the purpose of inciting revolution or spreading
anarchy, would not be regarded as political offenses under the treaties
of the United States.
As far as it has been possible to ascertain, the question of what
constitutes a political offense within the meaning of the immigration
laws has been considered on very few occasions, both under the 1907 act
and under the 1917 act. In the C case (53166/24), the former President
of Venezuela sought admission into the United States in December 1912,
and was excluded in January 1913. The point at issue in the case, which
was eventually decided in favor of the alien, was whether C 's refusal
to answer might be construed by the board of special inquiry as an
admission of complicity in a killing. It was charged that C , while
President of Venezuela and in full possession of the authority of that
country, directed the killing of P , without trial or hearing of any
kind, P at that time having been made a prisoner while engaged in a
revolt against C . In a memorandum dated January 30, 1919, Secretary of
Commerce and Labor Nagle stated as follows:
Insofar as this phase of the case is to be considered, a
further question arises; namely, whether the killing of P meets
the exception of the statute and is to be regarded as an offense
purely political not involving moral turpitude. In extradition
cases the decisions seem to hold that the act here in question
would be a political offense, although this view has been
questioned by high authority. The question is, whether these
decisions, rendered under the extradition law then in force, are
controlling in this case. Two things must be borne in mind.
First, the offense was not committed by a person engaged in
revolution against constituted authority. It was committed by the
President of the republic in full control of the authority of the
State who denied the benefit of the very law which he was charged
to preserve. Second, the immigration law was substantially
amended in 1903. Up to that time it read, "Provided, That nothing
in this act shall be construed to apply to, or exclude, persons
convicted of a political offense, notwithstanding said political
offense may be designated as a felony, crime, infamous crime, or
misdemeanor, involving moral turpitude by the laws of the land
whence he came or by the court convicting.' The law now reads,
"Provided, That nothing in this act shall exclude if otherwise
admissible persons convicted of an offense purely political not
involving moral turpitude.'
Necessarily, force must be given to this amendment, and I
cannot assume that any act of violence, committed by the highest
authority of the State during a disturbance in disregard of
constituted authority, must under all circumstances be regarded as
purely political and not involving moral turpitude. If such a
conclusion were to be accepted, then burning at the stake, or
subjecting a victim to torture, or indeed any offense committed by
an official in charge would satisfy the exception, provided the
act is committed during political excitement, and against a
participant.
In the M case (53550/650), the alien who had been convicted of a
libel against the King of England sought admission into the United
States in December 1912 and was excluded as a person who had been
convicted of a crime involving moral turpitude. It was eventually
judicially determined that the offense was not one involving moral
turpitude, but during the consideration of the question of whether the
offense was a political one, Secretary Nagle stated, in part, in a
memorandum dated January 16, 1913:
The only question left for discussion is, whether the offense
should be regarded as "purely political not involving moral
turpitude,' and therefore meets the exception in the statute * *
*.
I have not found a clear definition of "political offense.' The
accepted rule seems to be that, to constitute a political offense,
it is necessary to show something in the nature of concerted
action. Mr. Moore says, "The theory that any offense inspired by
a political motive is to be considered as a political offense is
now discarded.' There must be parties to a political controversy,
an uprising or a common movement, as a part of which the offense
is committed. When this is true, even a common crime may be
regarded as a mere incident to the promotion of a political cause
* * *.
In the P case the alien had been a leader in the Militant Suffragette
movement in England and sought admission to the United States. She had
been convicted in England in 1913 of conspiracy to destroy property and
incitement to such destruction in connection with her activities in such
movement. Her admission was approved with the comment that the offense
of which she was convicted was undoubtedly political.
In the S case (53956/88 and 2304 C-2223932), the subject entered the
United States in 1914 under an assumed name. He subsequently
surrendered to the Service in October 1915 and admitted that in 1908 he
had shot and killed the Governor of the Province of Galicia. S had been
a member of a secret revolutionary society that had determined upon the
assassination of the Governor for the purpose of improving political
conditions affecting the Ukrainians, and he had been selected to carry
out, and had carried out, the decision of the group. He was convicted
abroad and was sentenced to death. The death sentence was later
commuted to imprisonment and he eventually escaped. Assistant Secretary
Post, in a memorandum dated December 11, 1915, to the Commissioner
General, stated as follows:
Before it becomes mandatorily the duty of the Secretary of
Labor to issue a warrant of deportation in this case, he must be
satisfied that the case does not fall within that proviso of
section 2 of the immigration laws, which reads as follows:
"Provided, That nothing in this act shall exclude, if otherwise
admissible, persons convicted of an offense purely political, not
involving moral turpitude.'
An extremely literal interpretation of this proviso might
require the Secretary to expel political refugees who had taken or
assisted in the taking of human life as an incident to their
pursuit of a revolutionary cause, unless they had done so as
recognized belligerents. For upon such an interpretation unlawful
homicide, even though clearly political in character, might be
considered as being a crime involving moral turpitude. But in the
face of our historic policy, which has made this country a refuge
for the oppressed of all nations, such an interpretation of the
legislative intent would be unreasonable. It would, at any rate,
be too doubtful an interpretation at the best to reasonably
satisfy the Secretary of Labor that this refugee is not within the
political proviso quoted above. The warrant is, therefore, issued
and canceled.
In the A case (A-4944576), without any discussion, the assassination
of the Austrian Prime Minister was held to be a purely political offense
within the meaning of the 2d proviso to section 3 of the act of February
5, 1917 (C.O. order March 13, 1943). A stated that he had shot and
killed the Minister on October 21, 1916, for political reasons, because
he had totally suppressed the legal democratic institutions of the
country and had illegally set aside the Parliament for 3 years,
violating and destroying the constitutional rights and institutions of
the Austrian citizens. He further stated that he was sentenced to death
for the offense but was later pardoned by the Emperor; that
subsequently the Austrian Republican Government revoked all legal
consequences of the sentence; and that he was eventually elected to
Parliament. There is no indication in the file that the assassination
was a part of any concerted movement or uprising.
In the R case et al. (A-5326956), the Board of Immigration Appeals
held that the offenses of conspiracy to tamper with the motive power of
a vessel of foreign registry and damaging the motive power of a vessel
of foreign registry were not purely political offenses. The aliens were
Italian seamen, who on March 29, 1941, on instructions from their
government had damaged a vessel of Italian registry while it was in a
port in the United States. The Board rejected the theory that the
offenses were political offenses, stating that it was doubtful that
political aspects should be attributed to an offense committed against
the laws of this country by subjects of a nation with which we were then
at peace, and found that the offenses committed were not purely
political offenses within the meaning of the Immigration laws.
Thus it appears from the cases cited that in order for an offense to
constitute a political one, there must be concerted action for a
political purpose. In all the cases cited, with the exception of the A
case, there appeared to have been such concerted action. The A case was
decided without any discussion as to the conclusion reached that the act
performed by such person was a political offense. In the present case,
the husband has testified that he "committed this act, independently,
individually without being connected with anyone else.' In view of such
statement, it cannot be held that the offense committed by the husband
was a political offense within the meaning of the 2d proviso to section
3 of the Immigration Act of February 5, 1917. Consequently the husband
is not entitled to the benefits of such proviso. The evidence of record
establishes that he admitted and was convicted of the commission before
entry of a crime involving moral turpitude. The first ground of
exclusion urged against the husband is therefore sustained.
In reference to the second ground of exclusion, the applicable
provisions of the act of October 16, 1918, are as follows:
SECTION 1. That any alien who at any time, shall be or shall
have been a member of any one of the following classes shall be
excluded from admission into the United States.
(c) Aliens who believe in, advise, advocate or teach, * * * (2)
the duty, necessity or propriety of the unlawful assaulting or
killing of any officer or officers (either of specific individuals
or of officers generally) of the Government of the United States
or of any other organized government, because of his or their
official character, * * *.
It is fundamental that to sustain the second ground of exclusion we
must find that the husband's belief in the necessity of assaulting and
killing the Soviet Ambassador arose because of his official character.
The phrase "because of their official character' has been employed to
exclude cases where the personal character of the officer in any way
motivated the assassin. In other words the office of the individual
must be the sole animation (Matter of de E , A-6808388 (April 1, 1948)).
In the instant proceeding, the husband was motivated to commit the
act as much because of the personal character of his victim as his
official capacity. The victim's acts as chief administrator of the Ural
District in persecuting the people therein and his participation in the
execution of the Czar and his family marked him in the eyes of the
husband as one deserving extinction. Moreover the record discloses that
the husband is not or was not opposed to all organized government and
forms of law but rather his opposition was directed to the particular
regime in Russia because of its persecution of his fellow countrymen.
It is therefore concluded that the second ground of exclusion urged
against the husband is not sustained.
The wife has stated that she did not wish to emigrate to the United
States at this time, in the event that a decision is made adverse to the
admission of the husband and that she wished her case and that of her
child held in abeyance pending final decision in the husband's case. In
view thereof, no determination is made in respect to the admission of
the wife and child at this time.
Order: It is ordered that the excluding decision of the Board of
Special Inquiry be affirmed solely on the ground that the alien is
inadmissible as one who has admitted and been convicted of a crime
involving moral turpitude, to wit: Homicide.
Racial eligibility for naturalization -- Section 303 of the Nationality Act of 1940, as amended -- Test of eligibility as a "white person.'
Tartars of eastern Russia in the Ufa area (between the Volga River and the Ural Mountains) are members of the white or so-called European race, in spite of their Asiatic origin; the test of eligibility as a "white person' eligible for naturalization under section 303 of the Nationality Act of 1940, as amended, being the racial composition evaluated at the present time rather than the origin of the racial strain.
Excluded by Board of Special Inquiry:
Act of 1924 -- Racially ineligible to naturalization in the United States.
Act of 1924 -- No unexpired immigration visa.
Discussion: This case is before us on appeal from a decision of the
Acting Assistant Commissioner dated May 15, 1950, directing that the
excluding decision of the board of special inquiry be affirmed on the
above-stated grounds.
Appellant a 32-year-old native and citizen of Russia of the Tartar
race, born in Ufa, Russia. Appellant is single and has no relatives in
the United States, only friends of his father. He is a Mohammedan by
religion. Appellant was a soldier in the Russian army from 1941 to
January 1945, when he was captured by the Germany Army; he had served
inside the borders of Russia until 1943, when he was sent to Rumania and
Bulgaria. Appellant entered Germany in 1945 and lived in an UNBRA camp
in Austria until 1946; during that period, he stated that he was born
in Istanbul, Turkey, to avoid repatriation to Russia. Since that time,
appellant has been housed in a DP camp in Germany.
Appellant was issued a Soviet quota immigration visa under section
6(b) of P.L. 774 (80th Cong., act of June 25, 1948) by the American
consulate at Munich on October 28, 1949. Appellant was excluded by a
board of special inquiry at Camp Grohn, Bremen, Germany, on November 22,
1949. Apellant's sponsor, obtained through the efforts of the Church
World Service, Inc., of New York City, has given assurance that
appellant will be employed as a laborer in Santa Paula, Calif.
The Acting Assistant Commissioner held that appellant should be
excluded on the ground that he had not shown that he was of
preponderantly white blood or that he had a preponderance of some other
blood racially eligible for naturalization. The Acting Assistant
Commissioner also stated that Tartars are members of the Mongolian race
originating in Turkestan, a region of central Asia and that the general
racial ineligibility of "Mongolians and other Asiatics or those
descended from Mongolians or other Asiatics' serves to render appellant
racially ineligible for naturalization (sec. 303, Nationality Act of
1940; sec. 3, act of 1917).
Although the Tartars were originally considered Asiatic barbarians of
the Mongolian variety, the majority of Tartars have for several
centuries lived in eastern Russia, have become civilized and partially
absorbed or assimilated by association and intermarriage. In language
and religion, they may be designated as near Eastern or closely related
to that portion of western Asia bordering on southwestern Russia. (See
appendix.) The Tartar strain, from which the appellant springs, has
become well integrated with other peoples inhabiting the eastern
European section of Russia which lies between the Volga River and the
Ural Mountains. /1/ There has been considerable admixture of Tartars
and Ruthenians. The Tartar group have become absorbed into the mass of
Eastern Russian peoples and more or less Europeanized in blood and
custom, even though the racial traces are still discernable. The Soviet
rule during the past 33 years has probably hastened the process of
integration, since the Soviet Government requires all communities to
speak Russian, in addition to their own traditional language.
The test of eligibility for naturalization under section 303,
Nationality Act of 1940 (sec. 703, 8 U.S.C.) as a "white person' is not
the origin of the applicant's racial strain, but rather the racial
composition evaluated at the present time. United States v. Thind, 261
U.S. 204 (1923). In the Thind case, a Hindu of Caucasian ancestry was
held ineligible for naturalization as a person whose racial makeup was
no longer "white' as a result of intermarriage. Conversely, upon
applying the Thind test in the present case, we conclude that the
Tartars of eastern Russia in the Ufa area are members of the white or
so-called European race, in spite of their Asiatic origin. /2/ The
charge that appellant is racially ineligible to citizenship is not
sustained.
While appellant must of course have a valid immigration visa when
embarking for this country, a replacement visa may be obtained from the
United States consul for the visa now held, which expired during the
course of the present administrative inquiry. Matter of V , A-7366161
and A-7394626 (July 5, 1950). The no visa charge under the 1924 act is
not sustained.
Order: It is hereby ordered that the appeal be sustained and that
the alien be admitted to the United States for permanent residence,
provided he has a valid immigration visa at the time of embarking for
this country.
(1) Ufa, in the Idel-Ural section of Soviet Union (appellant's
birthplace and former home), lies within the region bounded by the Volga
River on the west and the Ural Mountains on the east. The people of
this area are reportedly being systematically displaced or exterminated
and replaced by a special military class of so-called Russianized
Cossacks or trusted members of the Red Army's communists youth
organization. (See, Treatise of Ayaz Ishaki-Idelli, found in the
record.)
(2) Certain racial groups in nearby Asia Minor have been held
eligible for naturalization for similar reasons:
Arabs -- Either as members of a race which inhabits Europe or as
members of a race having the same general, cultural characteristics as
Europeans. Ex parte Mohriez, 54 F.Supp. 941 (Mass., 1944).
Armenians -- Common understanding of the racial characteristics of
the group identifies them with the Europeans. United States v.
Cartozian, 6 F.(2d) 919 (D. Oregon, 1925); In re Halladjan, 174 Fed.
834 (C.C. Mass., 1909).
Syrians -- As so closely related to their neighbors on the European
side of the Mediterranean that they should be classed as white. Dow v.
United States, 226 Fed. 145 (C.C.A. 4, 1915); In re Najour, 174 Fed.
735 (N.D. Ga., 1909); In re Mudarri, 176 Fed. 465 (Mass., 1910); In re
Ellis, 179 Fed. 1002 (Oregon, 1910).
Afghans -- Ethnologically and scientifically, they are considered as
a European race of the Mediterranean racial zone, closely related to the
Iranians (Persians), even though some Afghans have some Mongoloid and
Indian strains. Matter of M , 56065/802 (A.G., May 26, 1945).
Editor's note. -- As to Annamese (from Indochina) it has been held
they are not of a race idigenous to India, but are of a racial group
indigenous to the Southeastern peninsula of Asia, and are not eligible
for naturalization under sec. 303 of the Nationality Act of 1940, as
amended. See, Matter of N , A-7483378 (56247/95) C.O. May 16, 1950.
Dictionary of Races or Peoples, Senate Document 662, 61st Congress,
Third Session, 1910-1911.
(NOTE. -- Since the establishment of the Soviet Union, that
government has permitted very few visitors in the eastern and
southeastern portions of European Russia. Hence, statistics cannot
readily be verified and represent a reliable estimate.)
The area between the Volga and the Ural Mountains in which Ufa is
situated was occupied in the eighth and ninth centuries by the Kehajars.
Then in the latter part of the ninth century, the Magyars, who were
originally classed as Mongols, began to make inroads into Europe,
eventually settling in Hungary. In the days of the "Great Khanate' of
Jenghiz Khan, during the late twelfth and early thirteenth centuries,
the inhabitants of the area north of the Caspian Sea were called The
Golden Horde; during the succeeding era of Kublai Khan, the area was
ruled by Kublai's brothers with little interference from the Asiatic
side.
The adherence of the present inhabitants of the Idel-Ural sector to
the Moslem faith appears to date back to 1395, when they were conquered
by Timur of Tamerlane and Samarkand, an ardent Mohammedan zealot. Upon
Tamerlane's death in 1405, the empire vanished and reverted to minor
tribal chiefs; the process of stabilization and assimilation then
began, progressing very slowly from the advent of rising Russian power
under Ivan the Terrible in the sixteenth century through the twentieth
century of the Romanov and Soviet regimes. The process of Europeanizing
Russia began about 1700 by command of Tsar Peter I, "The Great,' and was
continued by Catherine the Great, who made Russia a great world power
for the first time.
Illustrated World History, Hammerton and Barnes, N.Y., 1928.
Ancient and Modern History, Hayes & Moon, N.Y., 1933.
Crime involving moral turpitude -- Attempted bribery -- Violation of section 333 of the German Criminal Code.
Where visa expired, but "no visa' charge not sustained.
The offense of attempted bribery in violation of Sec. 333 of the German Criminal Code involves moral turpitude (conviction in February 1948). /*/ The exclusion ground of "not in possession of an unexpired consular immigration visa' need not be sustained, where a replacement visa is readily obtainable. (Repeated in unreported Matter of W , A-7394110, B.I.A. December 1, 1950.)
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917 -- Conviction of crime involving moral turpitude prior to entry, to wit: Attempted bribery (adult male appellant).
Act of 1924 -- Not preference quota as specified in visas (adult
female and minor appellants).
Discussion: This case is before us on appeal from a decision of the
Acting Assistant Commissioner dated April 14, 1950, which found
appellant M V inadmissible as one convicted of a crime involving moral
turpitude and found the other appellants inadmissible as persons not in
possession of the necessary unexpired immigration visas.
Appellant, M V , 44 years old and his wife, appellant L V , 42 years
old, are both natives and citizens of Czechoslovakia, who have been
living in Germany since November 1945. They now seek admission for
permanent residence under the provisions of the Displaced Persons Act
(act of June 25, 1948, P.L. 774, 80th Cong.) for themselves and their 3
children. Their daughters, R (14 years old) and B (11 years old), are
natives and citizens of Czechoslovakia, while their son, F (4 years
old), is a native of Germany and citizen of Czechoslovakia. On August
1, 1949, appellants received Czech quota visas from the American
Consulate at Schweinfurt, which were valid for 4 months; passport
requirements were waived by the Secretary of State. Appellant, M , has
a preference quota visa under section 6(c), act of June 25, 1948, and
his family were given visas as the spouse and dependent children of an
eligible displaced person. The family are destined to appellant M 's
brother-in-law, J W , in Philadelphia, Pa.
Appellant, M was charged with violation of section 333 of the German
Criminal Code, /1/ he pleaded not guilty, and was convicted in February
1948 by a Summary Military Government Court at Augsburg of attempted
bribery (the bribe was refused). Appellant was given a 3 months'
suspended sentence.
Counsel contends that, since the crime of bribery is an offer of
reward /2/ or an "attempt' to influence a public official in the
performance of his duty, the offense is an attempt to commit an attempt
or an attempt once removed and is not a crime involving moral turpitude
in the United States. It is not fully settled in this country that an
attempt to bribe or a rejected bribe is never included within the
framework of the crime of bribery, /3/ for some courts have defined the
crime of bribery in a sufficiently broad manner so that it also
comprehends the attempt to bribe. /4/ However, in the United States
under variously worded statutes (both similar and dissimilar to the
German one before us), a rejected offer of a reward made to a peace
officer is called an "attempted bribe' or an "attempt to bribe,' on the
theory that an express or implied acceptance of the promise or gift is
essential to perfect the crime of bribery. People v. Peters, 265 Ill.
122, 106 N.E., 513 (1914); Barefield v. State, 14 Ala. 603 (1848); 2
Bishop Criminal Law (9th Ed.), sec. 88. In the interest of uniformity,
the unaccepted offer is generally treated as an attempt, rather than as
the substantive crime.
But, regardless of caption, such an act is punishable in some manner
at the time the offer or promise of reward is made, whether the offer is
then accepted or rejected. State v. Sullivan, 110 Mo.App. 75, 84 S. W.
105 (1904); People v. Ah Fook, 62 Calif. 493 (1881); Dishon v. Smith,
10 Iowa 212 (1859).
Counsel also contends that the offense now under consideration is not
a crime involving moral turpitude in the United States. However,
appellant was convicted in Germany and this portion of the record is of
primary concern to as at this time. The mere absence of similar
wrongdoing in the United States does not prove that the offense does not
in fact involve moral turpitude. Conversely, numerous acts, which are
morally wrong have not been denounced as crimes. Statutes are being
added daily to the body of our criminal law denominating acts, which
were legally blameless before, as crimes involving moral turpitude. /5/
In the instant case, we have a record of conviction for a crime,
defined in section 333 of the German Criminal Code, which has always
been considered malum in se in both Anglo-American and Continental law
/6/ and, therefore, involves moral turpitude. Since appellant has been
convicted for the commission of a crime involving moral turpitude, he is
inadmissible under section 3, act of 1917, Matter of W , 5036088 (May 8,
1947); U.S. ex rel. Meyer v. Day, 54 F.(2d) 336 (C.C.A. 2, 1931).
The Acting Assistant Commissioner held that appellant L and her three
children were inadmissible because their visas have expired. These
visas were valid at the time the administrative inquiry was initiated by
the Immigration Service in Germany.
Appellants L V and the three children must of course have valid
immigration visas when embarking for this country; replacement visas
may be obtained from the United States consul. Therefore, we will not
now exclude the appellants because the immigration visas issued to them
have expired. For the above reasons, the appeal of the appellant M V is
dismissed. The appeals of appellants L , R , B , and F V are sustained,
provided they obtain replacement visas.
Order: It is hereby ordered that the appeal of M V be dismissed and
that the appeals of L V , R V , B V , and F V be sustained provided they
have valid immigration visas at the time of embarking for the United
States.
(*) Editor's note. -- Likewise in unreported Matter of R , A-7290361,
B.I.A. February 24, 1950, the "official' involved being a policeman, as
defined in section 359 of the German Criminal Code. Attempted bribery
in violation of section 43 of the German Criminal Code involves moral
turpitude, also (unreported Matter of D , A-7394992, B.I.A. July 24,
1950).
(1) Whoever offers, promises or furnishes to any official or member
of the armed forces a gift or other benefit in order to induce him to do
an act constituting a violation of the duty imposed by his office or
service, shall be punished for bribery by imprisonment; the loss of
civic rights may also be imposed.
(2) "Bribery is the voluntary giving or receiving of anything of
value in corrupt payment for an official act done or to be done.' 2
Bishop Criminal Law (9th Ed), sec. 85; State v. Ellis, 33 N.J.L. 102
(1868).
(3) At common law, an offer of a bribe to an official was punishable
as an attempted bribe, because it tended to corrupt the morals of the
community. People v. Bennett, 182 App.Div. 871, 170 N.Y.Supp. 718
(1918); Rudolph v. State, 128 Wis. 222, 107 N.W. 466 (1906); People v.
Peters, 265 Ill. 122, 106 N.E. 513 (1914); United States v. Gloria, 4
Philippine Rep. 341 (1905); Hutchinson v. State, 36 Tex. 293 (1871);
Commonwealth v. Warren, 20 N.W.C.(Pa.) 378 (1887); State v. Potts, 78
Iowa 656, 43 N.W. 534 (1889). See also, Commonwealth v. Hunt, 216 Mass.
126, 103 N.E. 399 (1913); State v. Miller, 182 Mo. 370, 81 S.W. 867
(1904); Sabbatino v. United States, 298 Fed. 409, cert. den. 266 U.S.
602 (C.C.A. 2, 1924); State v. Tummons, 225 Mo.App. 429, 37 S.W. 2d
499 (1931).
(4) According to other courts, it is the offering of the bribe that
constitutes the substantive crime of bribery, although such an offer has
been held separately indictable as an attempt to bribe. Walsh v.
People, 65 Ill. 58 (1872); State v. Ellis, 33 N.J.L. 102 (1868);
Coleman v. State, 132 Fla. 845, 182 So. 627 (1938); State v. Vallee,
136 Me. 432, 12 A.2d 421 (1940); State v. McDonald, 106 Ind. 233, 6 N.
E. 607 (1886). See also, United States v. Worrall, 2 U.S. (2 Dall.) 384
(1798); 18 U.S.C. 201-223, in which an offer is included in the
definition of bribery, with officials, who may be reached by a tender of
reward, enumerated and enlarged.
(5) Bankruptcy Act, 18 U.S.C. 151-155; Bankruptcy Code
(Kondursordnung) of Germany, secs. (KO) 239-244, enacted February 10,
1877. Revenue Act (Income Tax Evasion), 26 U.S.C. 145.
(6) An attempt to influence a person in authority has always been
considered wrong, as an act against justice and governing authority.
Matter of R , 1, I. & N. Dec. 118 (56071/174, June 13, 1941); Ng Sui
Wing v. United States, 46 F.(2d) 755 (C.C.A. 7, 1931; Matter of E , 2,
I. & N. Dec. 328 (A-5923798, Atty. Gen., July 11, 1945; 37 Op.Atty.
Gen. 293, 294 (1933); 39 Op.Atty.Gen. 215, 220, 221 (1938). II
Catholic Encyclopedia 778; 4 Encyclopedia Brittanica 110; Gen., July
11, 1945); 37 Op.Atty.Gen. 293, Encyclopedia Americana 488.
Citizenship -- Expatriation -- Foreign "naturalization' acquired involuntary -- Act of March 2, 1907 -- Effect of voluntary acceptance of such foreign nationality -- Evidence.
(1) Marriage by a United States citizen to an alien prior to March 2, 1907, together with residence abroad in the country of which her husband is a national, will not have expatriative effect in the absence of a "naturalization treaty' between the United States and the country of which he is a national (Serbia).
(2) Under the operation of the provisions of article 53(1) of Yugoslavian Law of Nationality of September 21, 1928, the subject's husband and she acquired Yugoslav nationality by "naturalization,' and the subject's conduct thereafter manifested a voluntary acceptance of the Yugoslav nationality bestowed upon her by operation of law in 1928, her expatriation (United States) would result, under the provisions of the act of March 2, 1907.
(3) The case in which the United States citizen woman marries an
alien after September 22, 1922, and thereby acquires foreign nationality
is distinguished.
Discussion: By memorandum dated September 14, 1946, the New York
field office requested a determination of the citizenship status of the
above-named subject. On March 17, 1947, an interim order was entered,
in which it was concluded that, even assuming that subject had acquired
Serbian citizenship through her marriage in 1902, she could not be
regarded as having been expatriated solely by reason of such marriage in
the absence of a "naturalization treaty' with Serbia. However, the
question was raised as to whether subject, having acquired dual
nationality subsequent to birth, may have been expatriated by reason of
the voluntary acceptance of Serbian or Yugoslav nationality acquired
involuntarily.
Before a determination as to subject's citizenship status could be
made, it was then deemed advisable to obtain from the Department of
State certain information regarding the provisions of Serbian and
Yugoslavian law. On May 19, 1949, the Department of State informed this
Service that the information requested in a letter from this Service,
dated March 19, 1947, had not as yet been obtained and that it was
doubtful it could be obtained in the near future, in view of the failure
of the Yugoslavian Government to cooperate. Information has now been
obtained from the Library of Congress, so that a final determination can
be made as to subject's citizenship status.
The question presented is whether subject lost her United States
nationality in any manner, particularly by voluntary acceptance of a
foreign nationality which she may have acquired involuntarily subsequent
to her birth.
The record discloses that subject was born at Clarksburg, West
Virginia on August 13, 1881, of native-born citizens of the United
States. She was married on August 13, 1902, in Paris, France, to her
husband, S Y G . She has testified that her husband was born in
Belgrade, Serbia, on February 14, 1871; that Serbia became Yugoslavia
after the First World War; that her husband was a diplomat; that he
was a citizen of no other country than Serbia and Yugoslavia; and that
he died on March 23, 1937, in London, England. She gave her testimony
before a representative of this Service on March 10, 1942.
Subject further testified that she was a citizen of Yugoslavia,
having acquired citizenship by marriage; that she took no voluntary
steps to acquire such citizenship but that she had dual citizenship by
reason of her marriage. She exhibited a Yugoslavian diplomatic passport
issued March 11, 1941, which was endorsed indicating that she had been
admitted to the United States at New York on June 30, 1941, under
section 3(2) of the Immigration Act of 1924 as a visitor for 6 months.
The passport was also endorsed showing that its validity had been
extended by the Yugoslavian Legation until November 21, 1942.
The subject testified that she intended to remain in the United
States for the duration of the war and then to return to Yugoslavia if
she could; that if the war went against Yugoslavia it might be
necessary to remain in the United States but that she intends to return
to her home in her adopted country. She further testified that she
considers herself to be a citizen of Yugoslavia but that she is as much
an American at heart as if she never went away. She testified further
that after her birth, she remained in the United States until she was 15
years of age; that she then went to England and remained there until
1898, when she went to Greece where she remained until 1902. In 1902
she married her husband in Paris and remained there for 13 months, he
being then a diplomat; in 1903 she visited the United States for 3
months and then returned to Belgrade, where she remained with her
husband until 1905. From 1905 to 1907 they were in Russia; from 1907
to 1914 they were in England; during this time she visited the United
States for short visits almost annually. In 1914 they returned to
Serbia; in 1916 they went to Switzerland; in 1918 her husband came to
the United States as Minister and remained here until November 1922 when
he returned to Yugoslavia. He retired from service in 1929 and then
resumed service again in 1934, acting as a diplomat in London until his
death in 1937.
Subject further testified that in 1938 she paid a visit to the United
States and that thereafter she visited various countries in Europe until
1941 when she came to the United States with the expectation of
remaining here until the end of the war. When asked whether any of her
visits to the United States were made for the purpose of retaining
American citizenship, she testified that the visits were strictly for
pleasure and to retain her American contacts. She stated that she at no
time appeared before an American consul for the purpose of declaring her
intention to retain her American citizenship; that she took no oath of
allegiance to the United States; that on all of her trips subsequent to
her marriage she traveled on a Serbian and later Yugoslavian passport;
that she is still entitled to such passport as the widow of a diplomat;
and that she is grateful for the hospitality and refuge which this
country is giving her.
The file of the New York office contains a letter dated August 12,
1942, from the Yugoslavian consul general with respect to the subject's
possible repatriation. The consul general stated that the subject does
not wish to lose her Yugoslavian citizenship. The file also contains a
letter dated October 2, 1942, from the subject addressed to the New York
office in which she states that she does not wish to be repatriated as
an American-born citizen for personal and property reasons.
In July 1945, the subject communicated with the San Francisco field
office with regard to her citizenship status. After consideration of
her case by a field officer, a letter was written to her by the San
Francisco field office on July 24, 1945, in which she was advised that
it was the view of this Service that her marriage in 1902 to her alien
husband did not cause expatriation in the absence of a treaty between
the United States and Serbia relating to loss of citizenship. However,
the letter further stated that during her residence in Europe she may
have performed other acts which would have resulted in a loss of the
United States citizenship and that a determination with respect thereto
could not be made without a personal interview. In response, she wrote
the San Francisco office a letter dated October 2, 1945, advising that
she had been issued a United States passport by the State Department and
that the letter had concurred in the views of the San Francisco office
that she was not expatriated by her marriage. In response to a request
for information, the State Department advised the Central Office by
letter dated February 4, 1947, that the subject was issued an American
passport on September 27, 1945; that the issuance of the passport was
predicated upon the conclusion by the San Francisco office in its letter
of January 24, 1945, that the subject did not lose her American
citizenship by her marriage and because it was determined that the
subject had not otherwise expatriated herself.
Subject has further alleged that her passport which had been issued
to her on September 27, 1945, had been renewed by the State Department
in 1948 and that she made a visit to England with such passport.
Section 48 of the Serbian Civil Code of 1844 which was in effect in
1902 when subject was married to her husband provided that:
An alien woman who marries a Serbian national shall acquire by
the fact of the marriage itself all rights of Serbian nationality
in all cases in which her foreign country grants similar right to
a Serbian woman who marries a national of that country; likewise
a Serbian woman who marries an alien shall lose all rights of her
nationality in cases in which his country deprives of nationality
women who marry Serbian nationals * * *.
This law remained in effect in Serbian provinces of Yugoslavia until
the Yugoslavian law of September 21, 1928, took effect. This latter law
became effective on November 1, 1928. Article 53(1) provided that:
The following persons are considered to be subjects of the
Kingdom at the date of entering into force of the present law:
Persons who at the date of the unification (December 1, 1918),
were subjects of the former Kingdom of Serbia or of the former
Kingdom of Montenegro, as well as such persons who at the date of
the unification were subjects of the former Kingdom of
Croatia-Slavonia and had not lost such nationality in accordance
with the provisions of the treaty of peace.
As concluded by the San Francisco office, it would appear that,
subject could not be regarded as having been expatriated solely by
reason of her marriage in 1902 to a Serbian national in the absence of a
"naturalization treaty' with Serbia (Central Office files 56107/314,
December 22, 1943; 15-3976, April 7, 1941). However, it appears from
the evidence of record that subject's husband was a Serbian national at
the time of her marriage to him in 1902 and that in accordance with
section 48 of the Serbian Civil Code of 1844 subject acquired Serbian
nationality by virtue of her marriage to him. It further appears that
both subject and her husband became Yugoslavian nationals in accordance
with the provisions of article 53 of the Yugoslavian Law of Nationality
of September 21, 1928. Thus, the record discloses that subject became a
dual national subsequent to her birth. Subject has testified that on
all her trips subsequent to her marriage she traveled either on a
Serbian or Yugoslavian passport up to the time that she received an
American passport in 1945. She has further stated that she at no time
appeared before an American consul for the purpose of declaring her
intention to regain her American citizenship and that prior to 1945 she
came to the United States only on visits and such visits were made for
the purpose of retaining her American contacts and for pleasure. Both
she and the Yugoslavian consul advised this Service that she did not
wish to be repatriated or renounce her Yugoslavian citizenship and she
has alleged that she expected to return to Yugoslavia for permanent
residence. The record establishes that subsequent to subject's marriage
in 1902, she always asserted that she was a Serbian or Yugoslavian
national up to 1945.
By her birth in the United States in 1881, subject acquired United
States nationality which she did not lose upon her marriage to her
husband in 1902. However, by such marriage she became a dual national,
acquiring Serbian nationality. Since the Serbian nationality was
acquired through marriage and not naturalization, the use of Serbian
passports did not result in loss of United States nationality (In re L W
, A-7091654, February 20, 1948, 3, I. & N. Dec. 107.) However, under the
provisions of article 53(1) of the Yugoslavian law of September 21,
1928, effective November 1, 1928, both subject and her husband acquired
Yugoslavian nationality. Consequently, on November 1, 1928, subject was
a dual national of the United States and Yugoslavia.
In the case of L W (supra), it was held that a United States national
woman who acquires a foreign nationality by marriage to a foreign
national after September 22, 1922, is not required to make an election
between United States and the foreign nationality. However, on the
other hand, where a United States national woman, married to a foreign
national after September 22, 1922, acquires foreign nationality by the
naturalization of her husband after marriage, it has been held that such
woman may lose her United States nationality by performing voluntarily
an overt act manifesting a voluntary acceptance of the foreign
nationality (30 Op.Atty.Gen. 412). Following the opinion expressed by
the Attorney General, it was held in the case of J C A B (1204-1439, May
25, 1949) that a United States national woman, who acquired Canadian
nationality through the naturalization of her husband in Canada in 1928,
lost her United States nationality by voting in an election held in
Canada in November 1933, such voluntary act being an overt act
manifesting voluntary acceptance of the Canadian nationality acquired by
her through operation of law. It has also been held that a dual
national at birth who, by effective operation of a treaty conceived
primarily with the transfer of territory and not treating the ipso facto
expatriation of United States citizens, validly acquired a new
nationality while outside the United States, is deemed to have been
naturalized in a foreign state, although involuntarily. By performing a
voluntary overt act, manifesting a voluntary acceptance of the foreign
nationality, such person could lose his United States nationality.
Thus, in the case of J S (23/99896, September 29, 1943), a United States
national, who was born in the United States of Austro-Hungarian parents
and who acquired Yugoslav nationality under the Treaty of St.
Germain-en-Laye, was held to have lost his United States nationality by
voluntarily performing an overt act manifesting a voluntary acceptance
of Yugoslav nationality; namely, the acquisition and use of a Yugoslav
passport, after attaining majority and without a prior assertion of
United States citizenship. (To same effect relating to the acquisition
of other foreign nationalities by operation of law, see Hackworth,
Digest of International Law, Vol. III, pp. 211-217).
The situation presented by the facts in this case in analogous to the
case of J C A B (supra), in that subject acquired Yugoslavian
nationality by virtue of her husband's naturalization as a Yugoslav
national in 1928. It is also analogous to the case of J S (supra), in
that subject acquired in 1928, in her own right, Yugoslav nationality by
operation of law. Consequently, the problem in this case resolves
itself into a determination as to whether subject voluntarily performed
an overt act manifesting a voluntary acceptance of the Yugoslav
nationality bestowed upon her by operation of law in 1928.
Whether a particular act constitutes an overt act manifesting a
voluntary acceptance of foreign nationality resulting in loss of United
States nationality necessarily depends on the facts presented in each
individual case. The use of a foreign passport is not always indicative
of a voluntary acceptance of foreign nationality. Thus, it has been
held that where the facts showed that an Italian passport was used to
return to the United States, this did not by itself constitute an overt
act of acceptance of Italian nationality (P C , 0300-297677). However,
in the case of J S , (supra), it was held that the voluntary acquisition
and use of a Yugoslav passport, without a prior assertion of United
States nationality, was a voluntary acceptance of the acquired Yugoslav
nationality, resulting in loss of United States nationality. In the
case of G A (C-348463, March 3, 1943), a United States national woman,
who acquired Canadian nationality after birth through her father, was
held to have elected the foreign nationality by her voluntary act in
applying for and receiving a Canadian passport, her entry as a visitor
to the United States and her request for an extension of stay.
The record discloses that subject considered herself to be a Yugoslav
national to the exclusion of her United States nationality. Even as
late as 1942, subject considered herself to be a foreign national and
not a United States citizen. She at no time appeared before an American
consul for the purpose of declaring her intention to retain her American
citizenship. She traveled abroad after 1928 as a Yugoslav national and
voluntarily obtained and used Yugoslavian passports in connection with
her trips. Her trips to the United States were for pleasure and by use
of foreign passports. By her conduct, she manifested a voluntary
acceptance of Yugoslav nationality. She must be deemed to have lost her
United States nationality pursuant to the provisions of the Act of March
2, 1907, by having become naturalized in a foreign state; namely,
Yugoslavia. /*/
In the light of the foregoing, it is concluded that subject lost her
United States nationality:
It is ordered, That subject be deemed not to be a citizen of the
United States and that a copy of this memorandum be forwarded to the New
York and San Francisco offices of this Service for their information.
(*) Editor's note. -- It is the view of this Service and the
Department of State that the effect of overt-conduct evidencing
acceptance of the foreign "naturalization' relates back to the date of
the acquisition of the foreign nationality by operation of its law
(C-6873066, Matter of P G , May 19, 1947, Central Office; Hackworth,
Digest of International Law, Vol. III, p. 213).
Seventh proviso relief -- Section 3, act of February 5, 1917 -- Effect of departure 1 week prior to expiration of 7 years from date of entry into the United States.
The alien departed from the United States only 1 week prior to the expiration of 7 years from the date of his entry into the United States; had he remained in this country for that one additional week there could have been no question raised concerning his eligibility for favorable exercise of the 7th proviso to section 3 of the Immigration Act of February 5, 1917. His mere absence from the country during that 1 week with avowed intentions of returning does not affect his eligibility under the 7th proviso, supra. It was noted that on his departure he had executed an outstanding warrant of deportation. The decision in this case is not to be construed as overturning or modifying in any respect the decision in Matter of S , reported in 1, I. & N. Dec. 376, and in Matter of P 55973/653, Atty. Gen. 1941 referred to in 1, I. & N. Dec. 383.
CHARGES:
Warrant: Act of 1924 -- No immigration visa.
Lodged: Act of 1929 -- Arrested and deported -- reentered within 1 year.
Act of 1917 -- Convicted of crime prior to entry -- Tampering with
and damaging the motive power of a foreign vessel within the
jurisdiction of the United States.
Amended Motion to the Board of Immigration Appeals that it reconsider
and withdraw its order of April 21, 1950, granting voluntary departure,
preexamination and advance exercise of the 7th Proviso to Section 3 of
the Immigration Act of 1917, as amended, and affirm the order of this
Service dated February 6, 1950, directing that the alien be deported;
or in the alternative, that the Board certify its decision to the
Attorney General for review. The Commissioner's Motion dated May 18,
1950 and heretofore filed with the Board is hereby withdrawn.
Discussion: The facts are fully set forth in the orders above
mentioned. Both the Central Office and the Board of Immigration Appeals
agree that the record relates to an alien who was deported from the
United States when he voluntarily departed under an order of deportation
1 week short of 7 years from the date of entry.
The sole question for determination is whether an alien who is
deported prior to the time he acquired 7 consecutive years domicile, in
the United States, may tack on foreign residence subsequent to the
deportation to make up a total of 7 years for the purposes of the 7th
proviso to section 3 of the Immigration Act of 1917.
In its order of April 21, 1950, entered in the instant case, the
Board of Immigration Appeals answered the question in the affirmative.
This holding is contrary to the ruling in the Matter of P , 55973/653
(June 4, 1941, A.G.), wherein the then Assistant to the Attorney
General, Mr. Maguire, held that the 7th proviso should be held
inapplicable to persons who have been deported from the United States
before they have lived in this country for 7 years.
The same rule was approved and was extended to exclusion proceedings
in Matter of C H de S (55872/461 1, I. & N. Dec. 376) where Attorney
General Francis Biddle held on February 1, 1943, that the 7th proviso
was inapplicable to persons who had been excluded from the United States
before they had lived in this country for 7 years. The Attorney General
stated "the word "domicile' contemplates actual residence or place of
abode which may be interrupted by a deportation (as in the P case), or
by an exclusion order (as in the present case), notwithstanding any
contrary desire or intention on the part of the alien.'
On January 28, 1944, the Attorney General had occasion to consider
the decisions in Matter of C H de S and Matter of P . He characterized
those cases as follows:
Those cases involved respectively, a deportation and exclusion
order /1/ which barred the alien from the country before the lapse
of 7 years from the time of original entry. It was concluded that
the word "domicile' as used in the 7th proviso contemplated actual
residence or place of abode (aside from bona fide temporary
absences, In re E H C (56127/820, January 14, 1944) (1, I. & N.
Dec. 631)), which could be terminated, despite any contrary intent
on the part of the alien, by a deportation or an exclusion order
before the 7 years had elapsed. (Matter of L S , 1, I. & N. Dec.
646.) Italics added.
It is evident that over the course of years it has become the settled
rule that the exercise of the 7th proviso is barred where an alien has
been deported or excluded before the lapse of 7 years from the time of
entry. The order of the Board of Immigration Appeals is contrary to
that well settled rule.
Matter of C , 1, I. & N. Dec. 631, which is the sole case cited by
the Board of Immigration Appeals in support of its position that 7th
proviso relief may be granted to an alien who was deported prior to the
lapse of 7 years from the date of his entry, is also cited by the
Attorney General in the quotation set forth above. It is obvious from
the quotation that the Attorney General considered the situation in the
Matter of C to be entirely different from those cases in which an alien
was deported or excluded prior to the lapse of 7 years. A reading of
Matter of C (supra), reveals the Attorney General expressedly indicated
that Matter of C H de S (supra), and Matter of P (supra), were cases
dealing "with distinguishable factual situations, involving,
respectively, a deportation and an exclusion order.' /2/
In the Matter of C , the applicant was lawfully admitted for
permanent residence and was physically within the country for 6 years
and 4 months. He then went to Canada, first obtaining a reentry permit.
After spending several months in Canada he presented himself for
readmission within the time limit prescribed by his reentry permit. He
was certified by a Public Health surgeon as afflicted with class A,
pulmonary tuberculosis. He was excluded by a Board of Special Inquiry
less than a month before the lapse of 7 years after his admission to the
United States for permanent residence. His case was then treated as an
advance application for the exercise of the 7th proviso. When his case
was decided by the Board of Immigration Appeals, the Board stated, "An
alien whose case is on appeal is neither admitted nor excluded until the
appeal is decided. It is therefore clear that the subject may now have
a domicile of 7 years if his temporary absence in Canada may be
considered.' Italics added. The Board exercised the 7th proviso on
behalf of the applicant. The matter was brought before the Attorney
General where the decision of the Board of Immigration Appeals was
affirmed. The Attorney General stated, "He (applicant) has not yet been
admitted (but has not been excluded) because, while tuberculosis is
arrested, the Public Health Service regards his condition as too recent
to be considered as cured.' Italics added.
The Matter of C holds that where an alien voluntarily departed (in
contrast to having been excluded and deported or arrested and deported)
his period of absence abroad, if temporary in nature, could be
considered residence within the United States for the purposes of 7th
proviso relief. Thus, in Matter of C , the alien had neither been
excluded nor deported when his application for relief was being
considered by the Board of Immigration Appeals and the Attorney General;
he then had in excess of 7 years' residence in the United States and
7th proviso relief could properly be exercised.
In view of the facts that the Attorney General in the Matter of C ,
expressly distinguished the situation in Matter of C from those cases
where an alien was deported or excluded, and in view of the fact that
the alien in Matter of C , was neither excluded nor deported, we must
hold that Matter of C is inapplicable to the present case where the
alien was deported and that the rule set forth in Matter of C H de S and
Matter of P , and reffirmed by the Attorney General in two subsequent
decisions, must control herein.
The alien herein having been deported prior to the lapse of 7 years
from the date of his entry into the United States, his foreign residence
subsequent to deportation, may not now be tacked on to his residence
prior to deportation to make up a total of 7 years for the purpose of
the 7th proviso.
Since the Board's decision in the instant case will establish a
precedent which is in disregard of holdings by the Attorney General, and
as it will have serious consequences in its effect on the enforcement of
immigration laws, the case should be returned to the Board for further
consideration.
Motion is hereby made, That the Board of Immigration Appeals
reconsider and withdraw its order of April 21, 1950, and that it enter
an order affirming the order of this Service dated February 6, 1950,
directing the alien's deportation to Italy.
It is further moved, That in the event the Board of Immigration
Appeals does not grant the foregoing motion, it certify the case to the
Attorney General for review pursuant to the provisions of 8 C.F.R.
90.12(c).
(1) So in the original; however, Matter of C H de S involved an
exclusion proceeding and Matter of P involved a deportation.
(2) So in the original; however, Matter of C H de S involved an
exclusion proceeding and Matter of P involved a deportation.
Discussion: This case is now before the Board on motion by the
Immigration and Naturalization Service requesting that we reconsider our
decision of April 21, 1950, where we authorized voluntary departure,
preexamination, and readmission to the United States under the authority
contained in the 7th proviso of section 3 of the act of 1917, in
reference to conviction of a crime, to wit: Tampering with and damaging
the motive power of a foreign vessel within the jurisdiction of the
United States and with reference to inadmissibility because of prior
arrest and deportation; and instead the Service asks that we affirm the
order of deportation.
The respondent in this deportation proceeding is a native and citizen
of Italy. He was in the United States as a seaman on several occasions
between October 1936 and June 1940. On June 6, 1940, he arrived at
Mobile, Ala., as a seaman on the Italian S.S. Ida Z.O. Because of the
war, this vessel remained at Mobile and the alien remained on her until
1941 when he was interned after the ship had been sabotaged. Because of
the sabotage the respondent was convicted of the crime of tampering with
and damaging the motive power of a foreign vessel. In May 1943 the
respondent was released on parole. His deportation had been ordered on
June 11, 1941. On May 29, 1947, the respondent left the United States
as a seaman. When he so departed the order of deportation was
outstanding and in contemplation of law he was deported. It will be
observed that his departure from this country on May 29, 1947, was just
1 week before the expiration of 7 years from the date of his entry on
June 6, 1940. The respondent remained abroad for about 7 months and
reentered the United States as a seaman on February 13, 1948. This was
his last entry into this country.
The respondent married a native-born citizen of the United States on
February 16, 1948. His wife has a child by prior marriage. He is
supporting her and the child, and proceedings by him to adopt the child
are contemplated.
The Immigration and Naturalization Service does not question the
desirability of exercising discretion to permit the respondent to
acquire legal and permanent residence in the United States and live here
with his citizen wife. The crime for which he was convicted grew out of
a wartime situation and in no sense indicates personal undesirability on
the part of the respondent. The sole and only question raised by the
Service is whether legally the 7th proviso may be exercised. The
Service contends that it may not because the respondent left the United
States under the order of deportation on May 29, 1947, 1 week before he
had physically lived in the country for 7 years. Therefore, it is
contended that he does not have a 7-year domicile in the United States.
In a word, because the respondent left this country as a seaman 1 week
too soon, under the position of the Service he is to be forever barred
from legal permanent residence in the United States, and rejoining his
citizen wife here. The position of the Service is that the view it
adopts is one required by prior Attorney General decisions which are
reviewed and set forth in the written motion of the Service and
elaborated on in oral argument before the Board.
The consideration of this problem begins with the D case. /1/ This
was an opinion by the Solicitor of Labor of July 17, 1934, adopted by
the Department of Labor when that Department was charged with the
administration of the immigration laws and followed without question
until the P decision, later to be discussed. In the D case, the alien
had been physically in the United States from September 1922 until
January 1933 when he was deported, among other charges, on the ground
that he admitted committing a crime involving moral turpitude, to wit:
Perjury prior to his entry into the United States. D sought to return
to the United States and asked that the discretion contained in the 7th
proviso be invoked in his favor in reference to inadmissibility because
of the crime. It was first ruled in the Department of Labor that his
deportation from the United States precluded the exercise of the 7th
proviso. The conclusion of the Solicitor of Labor was that deportation
did not in and of itself break domicile acquired in the United States,
and that there was authority to readmit D under the 7th proviso even
though inadmissible because of crime.
The next time this issue was raised was in connection with the case
of A E M P (File No. 55973/653). Mrs. P had never been lawfully
admitted to the United States but lived here from January 1934 until
April 16, 1938, a period of 4 years and 3 months. She was deported
April 16, 1938, on the ground, among others, that she admitted
committing perjury prior to entry into the United States. Since her
deportation in 1938 until the case was considered in 1941, she had been
making repeated efforts to return to this country. Unlike the D case
where the alien had spent more than 7 years physically in the United
States prior to deportation, in the P case the alien had spent but
little more than half of the required 7 years in the country, although
the full 7 years had elapsed from the date of her entry until the date
her case was considered in 1941. In a memorandum to then The Assistant
to the Attorney General Judge Matthew F. McGuire, Lemuel B. Schofield,
then Special Assistant to the Attorney General in Charge of Immigration
and Naturalization, stated:
In 1934 Charles Wyzanski, Esquire, then Solicitor of the
Department of Labor, made what to me is a surprising ruling to the
effect that the deportation of an alien and his absence from the
United States pursuant to deportation did not interrupt his
continuous domicile in this country, and made such an alien still
eligible to apply for readmission under the Seventh Proviso above
referred to.
This Service has been acting under the authority of that
opinion since that date. We believe it is wrong and will welcome
an opportunity not to be obliged to follow it in the future.
In response to this memorandum, Judge Holtzoff, then Special
Assistant to the Attorney General, prepared a memorandum for Judge
McGuire, concluding that the opinion of the Solicitor of Labor in the D
case should be deemed overruled, and that the 7th proviso should be
construed as not being applicable to persons who reapply for readmission
to the United States after having been deported before they have lived
in the country for as long a period as 7 years. In his discussion
leading up to this conclusion, Judge Holtzoff stated:
The manifest purpose of the provision is to extend leniency to
aliens who have established and maintained homes in the United
States for a specified minimum period of time, if after a
temporary visit abroad they are found on their return to the
United States to be inadmissible under the Immigration laws. The
period fixed by law is seven years. Consequently, any alien who
has not lived in this country for at least seven years is not
entitled to the benefit of this provision of law. Whether his
residence in the United States before the expiration of the
seven-year period is cut short by a voluntary departure or by
deportation would seem to be immaterial.
Judge McGuire on June 4, 1941, approved the memorandum prepared by
Judge Holtzoff, and stated:
Accordingly, you Major Schofield are authorized in the
administration of the Immigration laws to regard as overruled the
opinion rendered by the Solicitor of the Department of Labor in
1934 on this point, and to adopt the view that the 7th proviso
does not permit the readmission to the United States of aliens who
have been deported from this country before they had lived here
for as long as seven years.
It is to be observed that in the D case, there was not involved the
question of whether the entire 7-year period must have been spent in the
United States. In that case more than 7 years was spent in this country
prior to deportation. In the P case, as we have pointed out, little
more than half the 7-year period was spent in the United States.
Nevertheless, both Judge Holtzoff and Judge McGuire specifically
overruled the D opinion.
The third case requiring consideration is that of C H de S . /2/
Unlike the D and P cases, the S matter was concerned with the question
of whether an exclusion order terminated domicile in the United States.
Mrs. S lived in the United States from March 1929 until July 27, 1933,
or for a period of 4 years and 4 months. After a 2 months' visit in
Mexico she was excluded on September 29, 1933, and thereafter excluded
on numerous occasions when she sought to come to the United States for
permanent residence. When the case was considered on January 6, 1943,
by the Board of Immigration Appeals, far more than 7 years had elapsed
since her original entry. The exercise of the 7th proviso was essential
if she were to be permanently admitted to the United States because of
the admission of the commission of perjury. When the case was certified
to the Attorney General, it was considered for him by Oscar Cox, then
Assistant Solicitor General, who in a memorandum to the Attorney General
stated:
This shows, I think, that the purpose of the Congress in
enacting the 7th proviso was to relieve peculiar and unusual
hardships which would result from the severing of ties and
connections, domestic or otherwise, which probably, if not
inevitably, would be formed by an alien living here for a long
period of time. This purpose would be fully accomplished by
giving the word domicile the same meaning as residence. On the
other hand, giving it the technical legal meaning ascribed to it
in the W opinion (see attached file) would permit the benefits of
the proviso to be claimed by and extended to a person who actually
lived here for only a few days or weeks, without the formation of
any such ties or connections, and who then left the country (or
was deported) and lived elsewhere for the remainder of the 7-year
period. I do not believe the Congress intended any such result,
nor do I believe the word "domicile' should be construed in such a
way as to permit it.
The Attorney General on February 1, 1943, held that the 7th proviso
could not be exercised in the S case, and stated:
I have submitted the matter to the Assistant Solicitor General
for his consideration as to the meaning to be attributed to the
word "domicile.' His conclusion coincides with that adopted in the
P case; that is, the word "domicile' contemplates actual
residence or place of abode which may be interrupted by a
deportation (as in the P case), or by an exclusion order (as in
the present case), notwithstanding any contrary desire or
intention on the part of the alien. I concur in this conclusion.
We think it important to observe here that the P case and the S case
involving both deportation and exclusion, were concerned with aliens who
had spent but little more than half of the 7-year period in the United
States. In both cases it seems fair to conclude that the rationale of
the decisions was that one could not by spending a short part of the 7
years in the United States merely through the lapse of time acquire a
full 7-year domicile. The language of Mr. Cox in the S case, above
quoted, shows that he believes "domicile' as used in the 7th proviso
should have the same meaning as the "residence.' Residence, of course,
does not require a continued physical presence, and short absences where
the home clearly is in the United States do not interrupt a residence.
The last two cases decided contemporaneously dealing with this issue
are the C case, 56127/820, decided by the Attorney General January 14,
1944 (1, I. & N. Dec. 631), and the S case, 55915/701, decided by the
Attorney General January 28, 1944 (1, I. & N. Dec. 646). In the C case,
the alien had been legally admitted to the United States for permanent
residence on April 8, 1936, and was physically in the United States for
6 years and 4 months when he went to Canada to receive treatment for
tuberculosis. When he attempted to return he was excluded as one
afflicted with tuberculosis. In view of the rulings in the P and S
cases, the question arose as to whether C was eligible for consideration
under the 7th proviso. In holding that he was and that the 7 years
domicile could be completed by tacking on this period spent out of the
United States on a bona fide temporary visit, the Attorney General
distinguished the case from the P and S cases and said:
Those cases dealt with distinguishable factual situations,
involving, respectively, a deportation and an exclusion order
which effectually barred the alien from the country long before
the lapse of 7 years from the time of original entry. It was
urged, in effect, that the statutory requirement of 7 years'
domicile might be satisfied with the passing of 7 years from the
time the alien first set foot upon our shore with intent to remain
here, notwithstanding that his entry might be unlawful and
notwithstanding the degree of promptness and diligence with which
he might be apprehended and forced to go and to remain beyond our
borders. It was concluded that the Congress did not intend the
word "domicile' to be understood in so broad a sense and
contemplated a more limited meaning, as actual residence or place
of abode. Italics supplied.
However, "domicile' does not require physical presence during
every day of the 7-year period. This is adequately supported by
the precedents cited in the opinion of the Board. I certainly had
no intention of implying anything to the contrary when approving
in the S case the interpretation previously adopted by Assistant
to the Attorney General McGuire in the P case. Nor do I feel that
Mr. McGuire had any such thought.
A bona fide temporary absence such as that disclosed in the
present case is undoubtedly permissible and no valid objection can
be based upon the mere fact that it occurred near the end of the
7-year period rather than at an earlier time.
The importance of the language above quoted is emphasized by a
dissent when the Board considered the C case in which was quoted
language from Judge Holtzoff's memorandum of June 4, 1941, where he
stated:
The period fixed by law is 7 years. Consequently, any alien
who has not lived in the United States for at least 7 years is not
entitled to the benefit of this provision of law. Whether his
residence in the United States before the expiration of the 7-year
period is cut shot by a voluntary departure or by deportation
would seem to be immaterial.
It is very clear therefore that the C case to a substantial degree
materially modified the P and S cases.
The last case requiring consideration in the matter now before us is
that of L S , 55915/701, decided by the Attorney General on January 28,
1944 (1, I. & N. Dec. 646). S actually lived in the United States for
more than 7 years, to wit: from October 23, 1929, until February 23,
1940, when he left voluntarily under an order of deportation. He was
convicted of perjury in the United States and to be readmitted for
permanent residence required the favorable exercise of the 7th proviso.
Remembering that in the P case the ruling in the D case was specifically
overruled, the following quoted language from the Attorney General's
opinion is extremely pertinent:
All other conditions and circumstances being the same, it does
not seem to me that it makes any difference whether or not a
formal exclusion order has been issued. So far as concerns the
language of the statute it might well be supposed that the alien
would be ordered excluded because disqualified and that thereafter
he would invoke the discretion intended to be available in the
event of such disqualification. The contrary view would require
that we add to the statute a condition which is not expressed and
which there is no apparent reason for implying. Italics supplied.
And I perceive no reason for a different view in the case of a
deportation or a "voluntary departure under warrant of
deportation.' Under the administrative practice (letter January
18, 1944, from the Chairman of the Board), which I find no
occasion to disturb, an alien of 7 years' domicile who is within
the country but is subject to deportation may leave the country
upon his own initiative, or pursuant to informed advice by, or
with the express approval of, the immigration authorities for the
purpose of invoking the 7th proviso. As in the case of an
exclusion, it does not seem to me that anything in the statute or
in the practice under the statute requires a conclusion that the
Attorney General's discretion depends upon the formality with
which the result (removal of the alien) is accomplished: Italics
supplied. The facts bearing upon relinquishment of domicile (as
previously defined) must, of course, be considered.
The decision of the Board is squarely supported by an opinion
of the Solicitor of the Department of Labor (In re S D , 55632/
163, July 17, 1934), which was followed in the administration of
the statute until about a year ago when doubts arose because of
the rulings in the P and S cases.
The Solicitor's opinion in the D case dealt with an alien who
was deported after an unquestioned domicile of 7 consecutive
years. The Solicitor held that the deportation did not effect a
relinquishment of the domicile. In the opinion he indulged in
certain generalities, which are undoubtedly supported by the
authorities cited but are not necessarily of universal application
or to be applied without regard to other evidences of legislative
intent when construing a statute. The following statement, copied
from the Solicitor's opinion, is illustrative:
"A change of domicile can only be effected through the exercise
of the volition of the person whose domicile is sought to be
changed (Harris v. Harris, 215 N.W. 661, Sup. Ct. Iowa).'
The application of this principle was thereafter urged in the P
and S cases, where the aliens had been deported or excluded before
the lapse of the prescribed 7 years. It was concluded that the
word "domicile' as used in the seventh proviso was not to be
understood in so broad a sense, and that an alien deported or
excluded before acquiring the statutory domicile of 7 years could
not thereafter acquire it through lapse of time and failure on his
part to concur in the legislative mandate under which he was
barred from the country. However, there was no intention nor any
occasion in those cases to question the result reached in the D
case.
From the C and S cases, this is perfectly clear: (1) That neither
exclusion nor deportation necessarily breaks domicile in the United
States, and (2) that the entire 7-year period need not be spent in the
United States provided that the absence although at the end of the
7-year period was a genuine temporary departure from this country. The
Service view, while conceding that deportation does not break the
continuity of domicile, argues that deportation must occur after the
alien has spent 7 years in the United States. Remembering that in the C
case the Attorney General ruled we could tack on the final temporary
absence to make up the full 7-year period, the S case says that the
formality with which the removal of the alien is accomplished is
immaterial. The language of the Attorney General in the S case that
domicile as used in the 7th proviso is not to be construed in so broad a
sense as to grant relief in the P and S cases is appreciated. There,
the Attorney General was saying that one cannot spend a period
substantially less than the full 7 years in the United States and by the
mere lapse of time thereafter qualify for consideration under the 7th
proviso. But he did not say that a short bona fide absence such as in
the C case and such as in the case before us precluded the exercise of
the 7th proviso. These rulings of the Attorney General while adopting
the basic principle of the D case, nevertheless do limit the D case by
reading into the word "domicile' a restriction that "domicile' must bear
a relationship to actual residence and the broader legal fiction of
domicile has no application. There is a world of difference whether the
absence to be tacked on to physical presence in the United States is 3
years or 1 week. One may in a technical sense retain a domicile in a
certain place without maintaining a residence there, and though he may
be absent therefrom for many years. The rulings of the Attorney General
require more than a mere technical domicile, they require a residence.
In neither the P nor S cases had the aliens retained a residence in the
United States. In the case before us, it is perfectly clear that the
alien has done so.
The prior decisions of the Attorney General raise no obstacle which,
as a matter of law, require the denial of 7th proviso relief in the case
before us. The equities are all with the respondent. It is beyond
argument a case where relief, if permissible, ought to be granted. The
decision we have reached is clearly permissible in the light of existing
authority. The case, however, does involve an application of law which
from time to time may arise and we, therefore, will certify it to the
Attorney General for review of our decision as requested by the
Commissioner.
Order: It is ordered that the motion of the Service that we
reconsider our decision and affirm the order of deportation be denied.
In accordance with the provisions of 8 C.F.R., section 90.12(c), this
case is certified to the Attorney General for a review of the Board's
decision.
(1) File 55632/163.
(2) File 55872/461 (1, I. & N. Dec. 376).
The decision and order of the Board of Immigration Appeals in the
above-named case, dated October 9, 1950, are hereby approved.
Restoration of Civil Rights -- (1946) -- State of Wisconsin -- "Pardon' within meaning of section 19, Immigration Act of 1917 -- Meaning of "Sentenced more than once' -- Section 19, supra.
(1) The unrestricted executive clemency granted this alien by the Governor of Wisconsin on June 26, 1946, had the effect of relieving this alien from the legal disabilities incurred by his conviction of the Wisconsin offenses in question and of restoring to him all civil rights forfeited by such offenses or conviction; and he is deemed "pardoned' as to such offenses, within the meaning of Sec. 19 of the Immigration Act of 1917. (See Interim Decision #119 for Matter of O , 3, I. & N. Dec. 209, which is distinguished herein, and deals with restoration of civil rights by the Board of Pardons in the State of Nebraska.)
(2) As to the separate Illinois offenses of which this alien was convicted upon his plea of guilty on April 28, 1936, there is no showing that after his sentence on April 28, 1936, he has committed another crime, has been sentenced again to a term of a year or more and served sentence. As to these Illinois offenses, the alien does not fall within the provisions of law (sec. 19, Immigration Act of 1917) relating to "sentenced more than once'. (See Fong Haw Tan v. Phelan, 333 U.S. 6, 9, and 2, I. & N. Dec. 578, footnote 1.)
CHARGES:
Warrant: Act of 1917 -- Sentenced more than once for crimes, to wit: Breaking and entering, and larceny, larceny, burglary, larceny, burglary, larceny, and receiving stolen property.
Lodged: Act of 1917 -- Convicted of crime prior to entry, to wit:
Larceny.
Discussion: This case is before us on motion of counsel to
reconsider an order entered by this Board on March 24, 1947, wherein we
refused to accept the Commissioner's recommendation to cancel the
outstanding order and warrant of deportation and terminate the
proceedings but in the alternative stayed the respondent's deportation
for an additional thirty days to afford him an opportunity to file
applications for pardon of a series of offenses committed in the State
of Illinois which together with offenses committed in the State of
Wisconsin serve as the basis for the charge stated in the warrant of
arrest. Counsel in support of his motion submitted evidence of
executive clemency for the offenses committed in the State of Wisconsin.
Counsel also urged the application of the decision by the Supreme Court
in the case of Fong Haw Tan v. Phelan, 333 U.S. 6, 92 L. Ed. 433
(February 2, 1948), insofar as the separate offenses committed in the
State of Illinois are concerned with the respondent having been
sentenced more than once.
The respondent, a native of Scotland, a subject of Great Britain,
testified that he last entered the United States at the port of Detroit,
Mich., on July 5, 1926. The charge pertaining to conviction of a crime
involving moral turpitude prior to entry is predicated upon his
conviction and sentence before the county court for Walworth County,
Wis., on October 20, 1920, of the crime of larceny. The charge relative
to his sentence more than once subsequent to his last entry to terms of
1 year or more for crimes involving moral turpitude is predicated upon
the respondent's sentence before the Municipal Court for Rock County,
Wis., on April 10, 1934, of the crime of breaking and entering in the
nighttime with intent to commit robbery and his sentence at the Rockford
Winnebago County, Ill., on April 23, 1936, by the 17th Judicial Circuit
Court to concurrent terms of from 1 year to life on indictments #7036,
7037, 7038 and 7039, charging, respectively, larceny, larceny of a motor
vehicle, burglary and larceny, and burglary, larceny and receiving
stolen property.
The record affirmatively establishes that the respondent was
sentenced on a plea of guilty only once in the State of Illinois on
April 28, 1936, for various terms to run concurrently. There is no
showing that subsequent to his sentence on April 28, 1936, he has
committed another crime, has been sentenced again to a term of a year or
more and served the sentence. Under these circumstances, the decision
of the Supreme Court in the Fong Haw Tan case (supra), clearly requires
that the outstanding order and warrant of deportation be withdrawn
provided the executive clemency granted the respondent by the Governor
of the State of Wisconsin is deemed a full and unconditional pardon
within the meaning of the immigration laws. The sole issue before us,
therefore, is whether the certificate of executive clemency presented by
the respondent is a pardon within the meaning of the Immigration Act of
1917, as amended. If it is, then the respondent is not subject to
deportation on the above-stated charges.
This Board must consider the question of whether the executive
clemency granted the respondent on June 26, 1946, by the Governor of
Wisconsin has the effect of relieving the respondent from the legal
disabilities incurred by his conviction of the offenses in question and
of restoring to him all civil rights forfeited by such offenses or
conviction thereof /1/ in light of the Acting Attorney General's recent
decision in Matter of O , A-5877015 (February 4, 1950). In that
decision the Acting Attorney General concluded that a certificate
evidencing the restoration of a criminal alien's civil rights issued by
the Board of Pardons in the State of Nebraska was not a pardon within
the meaning of the immigration laws. Since the Acting Attorney General
gave no reasons for his conclusion in his memorandum of transmittal, our
only approach to the issue is a comparison of the substance of the power
to pardon and the effect thereof inherent in the laws of the two states
involved, namely, Nebraska and Wisconsin.
The Constitution of Nebraska vests the pardoning power in a board
composed of the Governor as chairman, the Attorney General and the
Secretary of State. The Constitution reads in part as follows:
Said Board, or a majority thereof, shall have power to remit
fines and forfeitures and to grant commutations, pardons, and
paroles after conviction and judgment under such conditions as may
be prescribed by law, for any offenses committed against the
criminal laws of this state except treason and impeachment * * *.
/2/
Statutory provisions require each application for relief from the
complete consummation of an imposed sentence by way of clemency to be
made on forms provided by the Board of Pardons. /3/ Furthermore,
publication of notice of hearing is required, recommendations are
requested after due investigation, a full hearing in open session must
be granted after due notice and "any citizen of Nebraska and the
applicant for clemency shall be given the right to appear and be heard.'
/4/ Persons deemed incompetent, by reason of conviction and sentence for
felony, to be an elector or juror, or to hold any office of honor, trust
or profit within the state, are restored to their civil rights and
privileges by a general pardon from the Board of Pardons granted under
the seal of the state and countersigned by the Secretary of State. /5/
A more general method of restoring the prisoner's civil rights is
provided by section 2634 of chapter 29, Nebraska comp. stat. (1943).
This statute reads:
Whenever any convict shall have completed the lawful
requirements of his sentence, the Board of Pardons, upon receiving
a certificate of good conduct from the warden, shall immediately
issue a warrant for the discharge of such convict, and such
warrant shall in all cases restore the prisoner's civil rights the
same as though a pardon had been issued.
This Board in the O case (supra) reached the conclusion that there
was no distinction between the general pardon granted by the Board of
Pardons and a warrant of discharge issued pursuant to section 2634
(supra). The Acting Attorney General assigned no reason for the
position he took. We assume that since the laws of Nebraska provide for
a general pardon as well as a restoration of civil rights by a warrant
of discharge, nothing less than a pardon will satisfy the requirements
of the immigration laws. In other words, only a full pardon of the
offense by the Board of Pardons of Nebraska can wipe away the infamy of
the conviction and restore the convict to all of his rights, privileges
and immunities. A warrant of discharge does not have this effect
notwithstanding the phrase found in the statute, to wit, "the same as
though a pardon had been issued.'
We will now turn to a consideration of the certificate of executive
clemency granted the respondent by the Governor of Wisconsin to see if
there is any basis for distinguishing it from the warrant of discharge
discussed above. Both of the documents by their express terms restore
civil rights. We must, as we did in the case of Nebraska, look to the
substance of the power to pardon inherent in the laws of Wisconsin.
The pardoning power in Wisconsin has always been lodged in the
Governor, both under the territorial government /6/ and under its State
constitution. /7/ Article 5, section 6, of the State constitution
provides:
The governor shall have power to grant reprieves, commutations,
and pardons, after conviction, for all offenses, except treason
and cases of impeachment, upon such conditions and with such
restrictions and limitations as he may think proper, subject to
such regulations as may be provided by law relative to the manner
of applying for pardons. * * * He shall annually communicate to
the legislature each case of reprieve, commutation, or pardon
granted, stating the name of the convict, the crime of which he
was convicted, the sentence and its date, and the date of the
commutation, pardon ?? reprieve, with his reasons for granting the
same.
Since 1935 the Governors of Wisconsin have created a "State Pardon
Board' of three members by executive order. Their powers are merely
advisory. The Governor has fully retained the authority vested in him
by the Constitution to make the final decision. /8/ The statutory
formalities of procedure do not apply where the sentence has already
been served and the person is applying for a pardon which, among other
things, would restore his civil rights. /9/ However, the rules and
regulations promulgated by the governor prevent the granting of such
pardon until 1 year after the expiration of the sentence and then only
permit it upon a petition endorsed by reputable citizens. /10/
There is no provision either by statutory enactment or in the
Wisconsin constitution which provides that one convicted of a felony is
restored to his civil rights merely by serving the full time of his
sentence in a penal institution or by being discharged from probation.
His civil rights can be restored only by a governor's pardon. /11/ A
full and unconditional pardon granted by the Governor of Wisconsin under
the Constitution "removes the disabilities resulting from the conviction
of the offense for which the pardon was granted.' /12/ Concerning the
inherent power of the Governor to pardon, the Wisconsin Supreme Court
has said:
As the governor is charged with the duty of seeing that the
laws be faithfully executed, it is in strict accordance with the
theory of the power of pardon that he should have power to pardon
offenders against the laws which it is his duty to execute. /13/
Unlike Nebraska, it is apparent from the foregoing that in the State
of Wisconsin the Governor has the sole authority to grant pardons
(except in the cases of treason and impeachment) and that a pardon by
the Governor removes the disabilities resulting from the conviction.
/14/
Since the State Constitution empowers the governor to attach any
condition, restriction or limitation to a pardon which may seem proper
to him, /15/ we must examine the language of the instrument presented by
the respondent to determine whether the governor placed any condition
therein which would limit its scope, thereby affecting its status as a
full and unconditional pardon. After setting forth the specific crimes
to which it is made applicable, the instrument reads as follows:
Whereas, pardon is solicited in behalf of the said R W G ,
otherwise known as R S , to prevent deportation, and it appearing
that he had led an upright and honorable life, and has conducted
himself as a peaceable and law-abiding citizen for approximately
two years last past, and it appearing that he is deserving of
executive clemency.
Now therefore, know ye, That, in consideration of the premises,
I, Walter S. Goodland, as Governor of the State of Wisconsin, have
restored, and by these presents do restore to the said R W G ,
otherwise known as R S , all civil rights forfeited by him in
consequence of the said offenses or of the said convictions.
The foregoing restores to the respondent "all civil rights /16/
forfeited by him in consequence of the said offenses or of the said
convictions.' The document on its fact states "pardon is solicited.' As
noted above, a petition for a pardon after completion of sentence must
be submitted in conformity with the rules promulgated by the Governor.
(See footnote 10.) It was granted without any conditions or restrictions
of any kind.
Whereas in the State of Nebraska the legislature has provided an
alternative method for restoration of civil rights outside of the
constitutional grant of this power and civil rights are restored as a
matter of course upon completion of sentence, this is not true in
Wisconsin. A study of the authorities available, the Wisconsin statutes
and the State Constitution, leads us to conclude that where a pardon has
been solicited and executive clemency has been granted without
restriction restoring a person to his civil rights, that all of the
legal consequences incurred by the convictions stated within the
document are thereby exempt from any express pardon stating that the
recipient was thereafter exempt from any and all punishment resulting
from his conviction and freeing him from any and all future legal
consequences of the crime involved, without condition, would not, under
the laws of Wisconsin, result in a fuller or more complete pardon that
his restoration to all civil rights.
The subject of legislative action to provide automatic restoration of
civil rights upon completion of sentence is discussed in an article
published in the Wisconsin Law Review. /17/ The position there taken
recognizes the supreme pardoning power of the governor and the mandate
under existing law which requires a general pardon to restore civil
rights. It takes issue with certain legal opinion prevalent in the
state which adheres to the theory that a constitutional amendment is
necessary to supplement the supreme pardoning power of the governor with
a pardon provided by the legislature and limited solely to the
restoration of civil rights which would automatically accrue to any
convict merely upon completion of sentence. The article, in our
judgment, supports the conclusion we have reached, to wit, that the
document presented by the respondent is as complete a pardon as can be
issued by the governor under existing law. /18/ This view is supported
by prior decisions of this Board, the Board of Review, the Commissioner
and the Attorney General. /19/
Our position in this regard also appears to be supported by an
opinion of the Attorney General of the State of Wisconsin. The governor
requested an opinion from Attorney General Reynolds as to whether an
alien's civil rights could be restored by the Governor. In his opinion
the Attorney General said: "While a pardon by the governor will not
restore to him (alien) the right to vote which he has not nor ever had
in this state, nevertheless, it will pardon him for the offense which he
has committed, and that fact may aid him in securing the right to vote.
* * * While I am constrained to hold that the civil right to vote cannot
be restored to this man by a pardon, still the governor may pardon him
for the crime for which he has already served his full sentence.' 21
Op.A.G.Wisc. 1088, 1089 (December 16, 1932). Attorney General Walter C.
Owen wrote in like vein in his opinion of February 2, 1916, "A person
convicted of felony does not thereby lose his citizenship; his
conviction deprives him of certain civil rights, among which is the
right to vote. These civil rights are not restored to him by a
discharge from imprisonment or from probation. Civil rights can only be
restored by a pardon.' 5 Op.A.G.Wis. 107, 108 (February 2, 1916).
The office of the incumbent Attorney General, State of Wisconsin, is
of the opinion that the executive clemency granted the respondent herein
has the effect of relieving him from the legal disabilities incurred by
his conviction of the offenses in question. Assistant Attorney General
William A. Platz in a communication dated June 10, 1950, inter alia,
states, "The order of Hon. Walter S. Goodland, Governor of Wisconsin,
dated June 26, 1946, is in legal effect a full pardon. * * * We also
have conditional pardons and commutation of sentence, neither of which
is material here.' Thus, it is clear from the opinions of the Attorneys
General referred to above that prior to the legislative enactment of
1947 (see footnotes 11 and 18) a full pardon by the Governor was
required to restore civil rights in the State of Wisconsin.
Adverting to the decision in the Matter of O (supra), it is noted
that the controversy in that case and the determine factors upon which
it appears the Acting Attorney General based his conclusion neither
arise nor exist in this case. The question for determination there was
whether a warrant of discharge which restored civil rights in the State
of Nebraska as a matter of course constituted a full and complete pardon
within the meaning of our immigration laws. The Acting Attorney General
decided that it did not. In the case at bar our position is supported
by the following rationale not present in the O case (supra).
(1) The document presented by the respondent was issued by the
only pardoning power in the State, the Governor, in accordance
with the State constitution, the language of which does not limit
the "civil rights' which the recipient could have restored to him.
The document presented in the O case was issued under a statute
supplementing the supreme pardoning power set forth in the State
constitution, thereby giving rise to a doubt as to whether it
constituted a full and complete pardon.
(2) Unlike Nebraska, the respondent here had only one source
from which to seek a pardon; namely, the Governor. No
restoration of civil rights came to him as a matter of course by
merely serving his sentence.
(3) Once accepted by the beneficiary, the Governor cannot
revoke an unconditional pardon in Wisconsin. /20/ The document
presented appears to fall in this category. In the State of
Nebraska there is a possibility that the warrant or discharge may
be recalled by executive authority, thereby canceling any benefits
obtained under the statute restoring civil rights.
(4) Restoration of civil rights in Wisconsin amounts to more
than restoring the right of franchise, which is meaningless to an
alien; it also carries with it certain other benefits as noted
above. We find no similar benefits accruing to a convict in the
State of Nebraska who has received a warrant of discharge.
(5) The pardon received by the respondent must be reported to
the State legislature in the same manner as pardons issued to
those who have not completed sentence. There appears to be a
distinction in the manner of recording in the State of Nebraska a
general pardon issued by the Board of Pardons and a warrant of
discharge issued pursuant to legislative enactment.
Since the document presented by the respondent appears to meet all of
the requirements of the State constitution and has not been restricted
by the governor, we are of the opinion, for the reasons aforesaid, that
it constitutes a full and complete pardon within the meaning of the
immigration laws.
Order: It is ordered that the proceedings had under the outstanding
order and warrant of arrest be and the same are hereby terminated.
(1) A document designated as a pardon is not effective to avert
deportation if by its terms refrains from extending to the recipient all
the benefits which accrue to the holder of the pardon. It is the
general rule that the authority to whom was committed the power to
pardon must exercise it to exempt the felon from any and all punishment
resulting from the conviction and to free him from any and all future
legal consequences of the crime, without condition, if deportation is to
be averted. In this respect, it has been stated that a pardon wipes out
the legal consequences which flow from an adjudication of guilt. People
ex rel. Prisament v. Brophy, 287 N.Y. 132 (1941); 3 Attorney General's
Survey of Release Procedures, 268 (1939).
(2) Nebraska Constitution, art. IV, sec. 13; Nebraska comp. Stat.
(1943), chap. 29, secs. 2602-2604. Before the amendment of the
constitution in 1920 the pardoning power was vested in the Governor
alone. In 1911 an advisory board of pardons was created (Nebraska laws,
(1911), chap. 133). Now, since any two members of the board can
exercise the powers conferred upon it, it is possible for the Attorney
General and Secretary of State to grant a pardon against the wishes of
the Governor.
(3) Nebraska comp. stat. (1943), ch. 29, sec. 2606.
(4) Nebraska comp. stat. (1943), ch. 29, secs. 2606, 2607, 2608,
2609, 2611, 2618, 2636.
(5) Nebraska comp. stat., ch. 29, secs. 112 and 2616.
(6) 5 Wis. Stats. (1896) sec. 10.
(7) Wisconsin has had but one constitution.
(8) 1 A.G. Survey of Release Procedures 1198.
(9) Wis. Stats. 1935, ch. 57, sec. 8.
(10) Governor's Rules and Regulations in re applications for pardons,
State of Wisconsin, Rule 5, Wis. Admin. Orders (1942), p. 156.
(11) Op. A.G. Wis. (1902) p. 205; id. (1916) p. 107; but see
footnote 18 for the statute passed in 1947. The pardon in the case
before us was granted in 1946.
(12) Op. A.G. Wis. (1908) p. 293.
(13) Rodd v. Verage, 177 Wis. 295 (1922); 187 N.W. 830, 842.
(14) It is well established under the laws of Wisconsin that one of
the disabilities incurred by a conviction for felony is the "loss of
civil rights' such as the right of franchise and the right to hold
public office (see ch. 6, sec. 1, Laws of Wis., (1947), also art. 3,
sec. 2, and art. 13, sec. 3 of the Wis. State constitution). While it
is true that an alien does not have the right of franchise and in most
cases is not permitted to hold public office, there are disabilities
which are removed by a pardon restoring civil rights, such as the right
to receive old-age assistance under the state law and the right to have
his driver's permit restored where he has been convicted for driving
while intoxicated (see 26 Op. A.G. Wis. 375; 27 Op. A.G. Wis. 331).
(15) 19 Op.A.G. 162 (1936); 18 id. 706 (1920).
(16) This terminology is used by the governor apparently for the
reason that it is the exact wording used in the State Constitution, art.
III, sec. 2 of which reads in part as follows: "* * * nor shall any
person convicted of treason or felony be qualified to vote at any
election unless restored to civil rights.'
(17) Wisconsin Law Review (1946), p. 281.
(18) During the 1947 session the State legislature added sec. .078 to
ch. 57 of the Wisconsin Statutes (Laws of Wisconsin, 1947, ch. 477).
This section reads as follows:
"Civil Rights Restored to Convicted Persons Satisfying Sentence. --
Every person who is convicted of crime obtains a restoration of his
civil rights by serving out his term of imprisonment or otherwise
satisfying his sentence. The certificate of the department or other
responsible supervising agency that a convicted person has served his
sentence or otherwise satisfied the judgment against him is evidence of
that fact and that he is restored to his civil rights.'
It is apparent from the foregoing that those who adhered to the
theory that a Constitutional amendment was not necessary to provide a
legislative pardon for the sole purpose of restoring civil rights upon
completion of sentence were in the majority at this session of the
legislature. Their action lends additional support to the conclusion we
have reached; namely, that prior to the enactment of the foregoing
section a full and unconditional pardon on the part of the Governor was
necessary for the restoration of civil rights.
(19) Matter of O , 56011/400 (A.G. August 23, 1940); Matter of F ,
55964/577 (January 30, 1926); Matter of T , 55713/865 (January 30,
1943); Matter of S , 55944/377 (July 14, 1937); Matter of M ,
A-2109566 (March 20, 1940); Matter of S., A-3386334 (June 30, 1945);
Matter of F , A-1838533 (February 26, 1945); Matter of A , A-3386329
(February 18, 1947).
(20) Op. A.G. Wis. 424; cf. Biddle v. Perovich, 274 U.S. 480 (1927).
Suspension of deportation; internee during World War II, exercise of discretion -- Voluntary departure; Internees, eligibility for prior to deportation proceedings.
(1) An alien brought to United States for internment during the war may not be deported as an immigrant unless he has failed to avail himself of an opportunity afforded him to depart voluntarily.
(2) Discretionary relief in the form of suspension of deportation or voluntary departure with preexamination may be authorized in the case of an alien brought to this country as an internee when the alien has in the United States dependent family ties of citizen or legally resident alien wife or minor child.
(3) Discretionary relief in the form of suspension of deportation may be authorized in the case of an alien brought to the United States as an internee, even though he has no family ties in this country, when the facts of the case indicate that deportation would result in undue hardship, it appearing that the alien has been in the United States for the past 10 years, is unable to return to the country wherein his last place of lawful residence was located and the alien has been absent for 29 years from the country of his origin and citizenship.
CHARGES:
Warrant: Act of 1924 -- No immigration visa.
Act of 1918, as amended -- No passport.
Discussion: Respondent is 45 years of age, a native and citizen of
Germany. He last entered the United States on January 13, 1942. At the
time of his entry he was in the custody of the United States Army being
one of a number of persons who were brought by the Army to this country
from South America for internment during the war. Respondent had
migrated from Germany to Nicaragua in 1923. He was brought to the
United States from Guatemala, where he had lived for nine years. He has
no dependents or close relatives in the United States. He has a wife
from whom he has been separated and children in Guatemala.
On June 24, 1947, the Commissioner found respondent to be subject to
deportation on the charges stated in the warrant of having entered the
United States without a visa and without a passport. Respondent was
granted the privilege of voluntary departure within 60 days after
notification of decision, and the order further provided that if he did
not depart within the allotted time his deportation would be ordered.
Counsel now asks for additional relief in the form of a grant of
suspension of deportation.
Having had the opportunity to depart voluntarily and not having
availed himself of this opportunity, respondent places himself within
the rule of United States ex rel. Sommerkamp v. Zimmerman, 178 F.(2d)
645 (C.A. 3, 1949) (originally a companion case to the present one /*/ )
and United States ex rel. Scherrmeister v. Watkins, 171 F.(2d) 858 (C.A.
2, 1949). In those cases it was found that the persons who were brought
into the United States as prisoners of war who have been given an
opportunity to depart and had failed to depart, may be deported as
"immigrants' who have not satisfied the requirements of law. In each of
those cases, as in the present case, the alien was brought to the United
States against his will. After a period of internment, proceedings
against each alien as an alien enemy were terminated. In each case the
alien was given an opportunity to depart voluntarily and failed to do so
because of his inability to procure a passport from the country from
which he had been removed. In accordance with the rule in those cases,
respondent's deportability is now conceded.
The present proceeding is to determine respondent's eligibility for
suspension of deportation under section 19(c) of the Immigration Act of
1917, as amended, 8 U.S.C. 155(c). That section provides that in the
case of any alien who is deportable under any law of the United States
and who has proved good moral character for the preceding 5 years, the
Attorney General may (1) permit such alien to depart from the United
States to any country of his choice at his own expense, in lieu of
deportation; or (2) suspend deportation (with an exception not
applicable here) of the alien, if he finds (a) that such deportation
would result in serious economic detriment to a citizen or legally
resident alien who is the spouse, parent or minor child of such
deportable alien; or (b) that such alien has resided continuously in
the United States for seven years or more and is residing in the United
States upon the effective date of the Act (July 1, 1948). Emphasis
supplied. The provision (b), in italic, was added to the law by the
amendment effective July 1, 1948.
When counsel was last before this Board, January 22, 1948, it was to
argue the question, no longer an issue, as to whether or not respondent
was deportable as an "immigrant.' Clause 2(b) had not been added to the
Immigration Act of 1917, and respondent had not yet had 7 years'
residence in the United States. He had been in the United States 6
years, from January 13, 1942. In the opinion dated February 12, 1948,
we granted respondent an extension of 6 months within which to depart
voluntarily without a warrant of deportation to any country of his
choice, and added an alternative order providing that if he did not
depart within the time granted that he be deported to Guatemala, if that
country would accept him, otherwise to Germany. Respondent did not
depart from the United States but petitioned the United States District
Court for the Eastern District of Pennsylvania for writ of habeas
corpus. The court held the case in abeyance pending decision of the
court of appeals in the Sommerkamp case, referred to above. On the
authority of that case the district court discharged respondent's
petition for writ on December 15, 1949.
It has been the policy of this department to deny suspension of
deportation to aliens brought into the United States solely for reasons
connected with the war. This policy was the subject of examination and
criticism by the Circuit Court of Appeals of the Second Circuit in the
recent case of Mastrapasqua v. Shaughnessy, 180 F.(2d) 999 (C.A. 2,
March 2, 1950). /1/ The policy was established by the Attorney General
in the Matter of L , A-5955999 (February 8, 1946). In that case the
Attorney General refused to legalize L 's residence in the United States
through a grant a discretionary relief, even though the alien was
married to an American citizen. In the Mastrapasqua case, the Court
held that the L doctrine was so capricious and irrational as to justify
review, even though administrative exercise of discretion is not
ordinarily reviewable. In a footnote at the end of the decision in the
Mastrapasqua case the Court says:
We are not to be taken as saying that the Attorney General may
not be able to supply a rational explanation of his
classification, but merely that as matters now stand we perceive
none.
The opinions of the Commissioner and of this Board in the L case are
set out in full in the footnotes and appendix of the opinion in the
Mastrapasqua case.
In the Mastrapasqua decision Judge Chase dissents, stating that
appellant has been the beneficiary of favorable discretionary action, in
that he was given ample opportunity to depart voluntarily from the
United States, and that the majority opinion is actually a review of
that exercise of discretion. The dissenting opinion does not consider
this classification to be so capricious that its application amounts to
a reviewable failure to exercise discretion citing U.S. ex rel.
Kaloudis v. Shaughnessy, 180 F.(2d) 489 (C.A. 2, February 20, 1950).
In the Kaloudis case the court considered the extent to which
exercise of the Attorney General's discretion under section 19(c) of the
1917 act, as amended, is reviewable. The court said through Judge
Learned Hand, that the interest which an alien has in continued
residence in this country is protected only so far as Congress may
choose to protect it, that Congress may establish such tests as it
considers appropriate, and that unless the Attorney General's ground for
refusing a favorable exercise is, on its face, insufficient, the court
has "again and again declared' that it will not review, citing cases.
The court states that it would review only if the Attorney General's
grounds are so clearly irrelevant that a court could say he had
transgressed the statute, or "if it affirmatively appears that the
denial (of relief) has been actuated by considerations that Congress
could not have intended to make relevant.' In the Mastrapasqua case,
then, the majority of the Court held that the Attorney General's denial
of discretionary relief was on grounds so clearly irrelevant as to bring
it within the exception stated in the Kaloudis case.
The court does not mention the fact that the Attorney General
modified the policy of the L case in a directive of December 3, 1946, to
the following extent:
If such alien has in the United States a wife who is either a
legally resident alien or citizen of this country and/or a citizen
minor child and if such alien meets the requirements of the
statutes and regulations he may be granted suspension of
deportation or pre-examination in addition to voluntary departure.
The court may not have been informed of this exception to or
relaxation of the policy, or it may have considered this exception
unimportant to the decision of the Mastrapasqua case, because
Mastrapasqua's wife and four children resided in Italy. It seems to us
that the exception to the L /Mastrapasqua policy, above stated, is a
very important factor in considering the rationality of the
classification. The only grounds upon which the Attorney General can
grant discretionary relief under section 19(c) of the 1917 act, as
amended, are as we have stated, (a) the presence in the United States of
a citizen or legally resident dependent wife, child, or parent or (b) 7
years' residence. Since the Attorney General relaxed the L
/Mastrapasqua policy as to persons who have such dependents, the
application of the policy is narrowed to persons who have no dependents
and who have achieved the 7 years' residence as a result of not having
departed from the United States at the end of the war or earlier, if
they were given the opportunity to do so.
It is our opinion that the policy being the rule in the L case is
reasonable on its face. The United States Army brought to this country
during the war hundreds of persons of German, Italian, Japanese, and
other nationalities. They were suspected of being dangerous enemy
aliens and were represented as such by the governments of the South
American countries, to which they had migrated. They were detained,
fed, and housed in alien enemy camps until such time as their cases
could be investigated, and adjudicated by the Alien Enemy Division of
the Department of Justice. They were offered repatriation during the
war to their homelands, such repatriation to be accomplished under
exchange agreements administered by the Swiss Government. Some chose to
remain in this country even though it meant living in camps.
They were paroled from their camps after favorable findings were made
by the Alien Enemy Division. They were permitted to obtain employment,
and they lived and worked in the United States, subject to the usual
restrictions on paroles. Among the internees involved in these cases
were many Italian and German seamen who were taken into custody, either
because they sabotaged their ships which had been interned in our ports,
or to prevent such sabotage. The wisdom of the policy which brought
respondent and many others from South America for internment is not an
issue in this case.
The legislative history of section 19(c)(2)(b) does not indicate any
intention to benefit a large number of aliens who entered the United
States as war prisoners. Insofar as it is at all pertinent here it
indicates only that the members of the subcommittee of the House of
Representatives were endeavoring to limit the effect of the bill to a
group of aliens whose cases were considered to be unusually meritorious,
but who were at that time ineligible for relief by suspension of
deportation. /2/
One reason for denying suspension in these cases is that when an
alien is granted preexamination or suspension of deportation the
immigration quota of the country of the alien's nationality is reduced
by one for the fiscal year then current or the next following year in
which a quota number is available. One reason this Board considers
carefully each application for adjustment of status is the fact that
most aliens remain outside the United States, each waiting his turn to
enter legally under the quotas. It would be clearly unfair for persons
who have gained entrance into the United States illegally, or because
they were considered dangerous alien enemies to be the beneficiaries of
all the advantages. Each person in the United States who receives such
consideration but further delays the time when the person outside our
boundaries can obtain his number.
Establishing categories of persons to whom discretionary relief will
not be granted is not of itself capricious administration of the
discretionary provisions of the immigration laws. Indeed, it is our
belief, that failure to establish categories and to administer the law
uniformly /3/ with regard to the aliens falling into these categories
can be truly capricious. L , Mastrapasqua, and W were all in the United
States under exactly the same circumstances. If we were to permit the
first to depart voluntarily, to grant suspension of deportation to a
second and to deport the third, that, in our opinion, would be truly
capricious exercise of the discretionary authority.
In U.S. ex rel. Mylius v. Uhl, 203 Fed. 152 (S.D., N.Y., 1913),
aff'd. 210 Fed. 860 (C.C.A. 2, 1914), an early and important case in the
immigration field, the court suggests specifically the establishment of
categories, saying that immigration authorities act in an
administrative, not in a judicial capacity, that they must follow
definite standards and apply general rules. The court admitted that
this kind of administration has disadvantages but concludes:
But such results always follow the use of fixed standards and
such standards are, in my opinion, necessary for the efficient
administration of the immigration laws.
The 1917 act, itself, establishes a pattern of categorizing as to
aliens who may or may not be granted discretionary relief from
deportation. Section 19(d) of that act provides that persons are
ineligible for discretionary relief who are, or have been criminals,
prostitutes, anarchists, trafficker in narcotics, etc. Other categories
have been attempted by those responsible for the administration of the
immigration laws, categories which seemed reasonable and essential to
fair and practicable administration and within the spirit of these laws.
An example of this type of categorizing is a policy that, as a general
rule, suspension will not be granted a recently arrived seaman who
overstays his leave, even though he marries an American citizen woman on
the eve of his deportation. Kaloudis v. Shaughnessy, supra, is such a
case. /4/
There is another classification of persons to whom we must deny
suspension of deportation, though they appear superficially to have
fulfilled the requirements. Section 19(c) of the 1917 act, as amended,
requires that Congress in each case pass a resolution favorable to
suspension before a grant of suspension by us becomes absolute. The
81st Congress did not favor suspension of deportation in 32 cases of a
particular pattern submitted by the Attorney General between December
15, 1947, and April 16, 1948. These cases concerned families recently
arrived in the United States who sought to predicate suspension of the
parents on the accident of birth within the United States of one of
their children, and thus to remain here with all of their children.
These were usually large families of aliens who entered the United
States illegally from contiguous territory. Suspension was sought on
the ground that deportation of this family would result in serious
economic detriment to the one child who was born on United States soil.
There frequently had been adverse immigration proceedings prior to the
last entry of the parents. Congress did not favor granting suspension
in such cases. Thus another extrastatutory classification of persons
who will not receive suspension of deportation has arisen as a result of
a clearly indicated Congressional policy, which serves us as a guide in
the disposition of similar cases hereafter. This does not mean that
full consideration is not given to all factors in the case bearing on
the issue.
In Matter of D , A-2244808 (August 17, 1949, recon. & reaff.,
September 30, 1949) we held that residence of 7 years in the United
States as an alien enemy where the alien's presence in the United States
was necessitated because of the war, would not be construed as residence
required within the meaning of section 19(c) of the Immigration Act of
1917, as amended. In the Matter of K , A-7044499 (April 26, 1949),
Matter of A , A-5918070, (March 2, 1949) we said that it has been our
policy to refuse suspension to those persons who have managed to eke out
7 years' residence in the United States by failing to cooperate with the
immigration officials; that is, by remaining in the United States in
defiance of orders granting them other relief. /5/
Respondent chose to remain in the United States after he was given an
opportunity to depart. The consequence of his choice is deportation.
Respondent was offered several opportunities to depart voluntarily.
In view of the authorities and policies discussed above, we believe that
this is the optimal relief available to him.
Order: It is ordered that the motion be denied.
(*) Editor's note. -- Unreported Matter of S., A-5907999, B.I.A.,
June 12, 1950, of like content as this Interim Decision.
(1) On August 11, 1950, and September 14, 1950, in unreported Matter
of M , A-5587208, the B.I.A. denied discretionary relief from
deportation and referred to the above Interim Decision, after discussing
the decision of the Circuit Court of Appeals in this unreported case.
The B.I.A. stated on September 14, 1950 "As a basis premise in
considering discretionary action, we hold we are obliged morally, if not
legally, to treat alike all aliens in like circumstances. This
obviously requires the formation of certain standards or categories as a
guide to the grant of discretion. We do not understand that the ruling
of the Second Circuit is to the contrary. We believe the holding to be
that, as the court viewed it, the L ruling was unsupported by reason and
therefore capricious. In the W case, (the above Int. Dec.) we have
given the reasons which prompted the L policy and of which apparently
the court was unaware. We hold it would be arbitrary and capricious on
our part to grant to this alien that which has been denied to many, many
other aliens in like circumstances where action has been taken under the
L ruling of the Attorney General.'
Also compare statement as to above court decision, as appears in
Matter of L P , A-7450755, B.I.A., January 3, 1951 (4, I. & N. Dec.
223).
(2) Page 129, hearings on H.R. 2933, 80th Cong., 1st sess., House
Judiciary Committee, held April 21, 25, 28, 29, and May 2, 1947.
(3) An occasional exception might be made either from inadvertence or
because of extraordinary circumstances. This would not cause the basic
policy to become capricious.
(4) Editor's note. -- See (4, I. & N. Dec. 223).
(5) Editor's note. -- Similar statement in unreported Matter of M ,
A-5587208, B.I.A., September 14, 1950, and Matter of L , A-5917727, B.
I.A., (4, I. & N. Dec. 1).
Discussion: This case is before us on motion of counsel requesting
that we reconsider our order dated May 31, 1950, in which we denied
counsel's motion requesting the discretionary relief of suspension of
deportation.
The record relates to a native and citizen of Germany, 46-year-old
male, who last entered the United States on January 13, 1942, in the
custody of the United States Army, having been brought to this country
from South America for internment during the war. The respondent has
been found to be subject to deportation on the charges stated in the
warrant of arrest, of having entered the United States without a visa
and without a passport. On February 12, 1948, he was granted an
additional period of 6 months from date of notification of decision
within which to depart voluntarily from the United States, and was
further ordered that if he did not depart within the time granted, his
deportation would be ordered. Respondent did not depart but petitioned
for a writ of habeas corpus which was discharged by the United States
District Court for the Eastern District of Pennsylvania on December 15,
1949.
In our order dated May 31, 1950, denying the respondent's motion to
reopen for additional relief in the form of suspension of deportation,
we throughly explored the question of the respondent's eligibility for
suspension of deportation, and held that under the circumstances of the
case, the optimal relief available had been granted to the respondent,
and in view of his failure to depart voluntarily, the alternative was
deportation. In his present brief, counsel refers once more to
Mastrapasqua v. Shaughnessy, 180 F.(2d) 999 (C.A. 2, 1950) as the basis
for his argument for discretionary relief. In our order dated May 31,
1950, we adverted at length to the Mastrapasqua decision. In view of
the manner of the respondent's arrival in this country, and the fact
that he had no family ties here, his wife and children being in
Guatemala, and in view of the fact that the respondent had managed to
eke out 7 years residence in this country by dilatory and delaying
tactics, it was felt that a case was not presented to warrant a granting
of that motion to reopen.
The present motion for reconsideration fails to present any new or
additional arguments which were not considered when we previously
entertained counsel's prior motion, nor are any new persuasive arguments
presented therein. Accordingly, the motion to reconsider will be
denied.
Order: It is ordered that the motion to reconsider be denied.
After a review and consideration of the entire record in this case.
I am of the opinion that the facts indicate that deportation of the
subject alien will bring about undue hardship.
Accordingly, the order of the Immigration Appeals Board, dated May
31, 1950, is hereby reversed, and, pursuant to authority contained in
section 19(c) of the Immigration Act of 1917, as amended, 8 U.S.C. 155(
c), the deportation of E W is hereby suspended.
Citizenship -- Expatriation -- Foreign military service -- Section 401(c) of the Nationality Act of 1940 -- Voluntary service -- Evidence.
A native and citizen of Italy, naturalized here in 1929, was found to
have established on the basis of the evidence presented that his service
in the Italian Armed Forces in 1941 was of an involuntary nature (it
having been previously found that he had not expatriated himself in
1931-32 by taking an oath of allegiance in connection with his service
during that period in the Italian Armed Forces). See, 3, I. & N. Decs.
558, 586, 701, and 890. (Also see, 41 Op.Atty.Gen.No. 16, May 8, 1951.)
Discussion: This case is before us on motion of counsel for
reconsideration of our previous order, dated January 27, 1950, wherein
we dismissed the appeal from a finding of expatriation below. Counsel
now presents additional documentary evidence, together with another
brief, in support of his prayer for an order modifying the above order
approving the visa petition for petitioner's wife and six children.
The facts may briefly be summarized as follows: On March 1, 1941,
petitioner was recalled by the Italian Army and served until October 1,
1941. It was previously determined that petitioner's prior taking of an
oath of allegiance and consequent military service from October 1, 1931,
to October 1, 1932, occurred involuntarily and did not serve to divest
him of his United States citizenship. Because petitioner was granted a
2 months' convalescent leave upon initial recall (petitioner was again
allegedly suffering from the nervous stomach condition, which had
troubled him during his military service in 1931), petitioner alleged
that he believed that he would not actually be inducted for service.
During this period of 2 months, petitioner testified that he protested
to the American consul at Palermo, where he was allegedly told that the
best thing to do was to serve. At the end of the convalescent leave,
petitioner was informed that he must serve immediately, whereupon he
stated that he protested to the Italian military authorities, but was
reportedly told that if he refused to serve he would be arrested and his
family sent to a concentration camp. (With regard to the American
consul's alleged refusal to take action in petitioner's behalf, it is
noted that the State Department has consistently held that, since
persons who have a basis for refusal to serve in the Italian Army can
apply to the Italian authorities for exemption, if their name has been
automatically and erroneously listed on the rolls, the American
consulate is powerless to obtain an exemption for these persons and
these American citizens must take the affirmative action themselves to
prove to the Italian authorities that they are actually unwilling to
serve.)
In our order of January 27, 1950, it was determined that petitioner
not only chose to remain in Italy in the face of impending war, but also
served in a foreign army under circumstances which were not proved as
extraordinary and amounting to true duress as defined by the courts. It
was, therefore, concluded that "petitioner expatriated himself by
voluntarily acting in a manner inconsistent with his American
citizenship' (sec. 401(c), Nationality Act of 1940). Our prior
conclusion was based upon the premise that present allegations of duress
in connection with foreign military service standing alone are not
sufficient to negative expatriation, for additional evidence in
collaboration is required. The best evidence is a contemporaneous
protest, but this type of proof is oftentimes unavailable. Therefore,
we have found it expedient to accept evidence of conditions existing in
a given country, which render plausible the story now related.
Upon reconsideration of the record and in the light of the latest
presentation of the case to the Board, we believe the latter requirement
has been met. Hence, even though we cannot agree with the broad
premises which counsel advances in his brief, /1/ we feel that
petitioner has now sustained the burden of proving that his military
service in 1941 was under duress. He has affirmatively established and
sustained by evidence the credibility of his defense. Thus, we conclude
that the motion for reconsideration should be granted and we, therefore,
find that petitioner's visa petition in behalf of his wife and alien
children should be approved.
Order: It is hereby ordered that the motion be granted and the visa
petition approved.
(1) Counsel posed several contentions in his brief which are worthy
of comment. (1) Counsel stated that petitioner's refusal to serve in
the Italian Army would have subjected him to criminal prosecution. In
Matter of De M , VP-412127 (March 27, 1950), we took notice of the habit
of Italian tribunals to hand down such sentences in abstentia. However,
it appears that such severe and extreme penalties, as were invoked in
the De M case, occur chiefly when the subject departs or hides
immediately prior to the time of his liability for a draft call, and do
not generally take place in this manner if the subject has been long
absent from Italy.
In passing, we wish to deal with counsel's unqualified statement that
"It has been held that if a United States citizen serves in a foreign
army, expatriation does not result, if refusal to serve in said armed
forces is punishable criminally (citing Matter of Podea, 56129/ 480,
February 28, 1944, Adjudications Office).' In both this decision of the
Assistant Commissioner in 1944 and the recent court decision by Judge
Augustus Hand (Podea v. Acheson, C.A. 2, January 10, 1950) (179 F.(2d)
306), this contention was disregarded and did not serve as the basis for
the determination that Podea retained his United States citizenship.
The court concluded that Podea was not expatriated under either sec. 2
of the 1907 act or sec. 401(c) of the Nationality Act of 1940, since his
acts were not voluntary but "were required by the situation in which he
found himself and were primarily caused by the erroneous advice of the
State Department and were fartherest from his real purpose.'
(2) Counsel also stated that under Italian law, petitioner was
considered an Italian citizen and compelled to serve. In view of the
provisions of art. 8 of the Italian Nationality Law of 1912 (entitled
"Loss of Citizenship') and petitioner's naturalization in 1929,
petitioner's acquisition of United States citizenship was recognized at
the time he performed military service in Italy and he was not then
regarded as an Italian citizen. However, because petitioner was 27
years old at the time he relinquished his Italian citizenship, his
liability for military service in Italy had already accrued and the
State Department has had occasion to state that military service
obligations which accrue prior to foreign naturalization of Italian
citizens are enforced upon the person's later return to Italy.
(3) Counsel contends that the Matter of S , (VP-385381, August 3,
1949) (3, I. & N. Dec. 701) controls the present appeal. It is our
opinion that counsel has extended the ruling in that case beyond the
boundaries indicated by us. Furthermore, the existence of a draft law
in a given case is only one of the factual elements to be considered,
not the sole factor involved. Ropers v. Shaughnessy (S.D., N.Y.,
November 9, 1949).
Discussion: This case is before us on appeal from a decision of the
Assistant Commissioner dated July 15, 1949, directing that the petition
be denied. Petitioner filed a petition for nonquota status under
section 4(a), act of 1924, for his wife and 6 children (4 sons, aged 13,
11, 7, and 5, and 2 daughters, aged 9 and 6). The Assistant
Commissioner found that petitioner had expatriated himself under section
2, act of 1907, by taking an oath to the King of Italy while serving in
the Italian Army during 1931 and 1932 and therefore the beneficiaries
were not entitled to nonquota visas.
Petitioner was born in Italy in 1902 and entered the United States on
August 23, 1923, aboard the S.S. Conte Verde. He was naturalized on
September 23, 1929, in the District Court for the Eastern District of
Michigan. On September 4, 1931, petitioner departed for Italy to visit
his parents; he alleges that he planned to stay only a year's time, but
before leaving he closed out his bank account of $500 and left no
property in this country. Petitioner testified that 2 weeks after his
arrival in Salemi (Sicily), the Italian Police served him with an
induction notice (they had allegedly been awaiting his return since
1924, when he became liable for military service) and took him to the
military center. Petitioner stated that he protested to the military
authorities that he was a United States citizen, but not to the American
consul. He was inducted into the Italian Army on October 1, 1931, and
served until October 1, 1932. According to Italian law, the oath of
allegiance is administered 3 months after induction and all inductees
are required to take it. However, petitioner stated that he did not
take the oath to the King of Italy, but pretended to be sick with a
nervous stomach and was later punished for his nonattendance; two of
his fellow soldiers stated in affidavits that petitioner did not take
the oath. Petitioner testified that he wrote his father to protest his
induction to the Italian Ministry of War; no proof of this protest has
been produced. Petitioner was home on furlough from December 23 to
January 1, but failed to contact the American consulate; petitioner
explained that he was under the impression that the consulate was closed
for the holidays.
In September 1933, he was married and in December 1933, he obtained a
renewal of his United States passport; petitioner failed to reveal his
service in the Italian Army to the American consul at Palermo. About
this time, petitioner opened a perfume shop in Salemi, which was
allegedly run by his wife due to his illness with a nervous stomach
condition; petitioner stated that he suffered from this stomach
condition while in the Army and was thus prevented from returning to the
United States because of it.
On March 1, 1941, petitioner was recalled by the Italian Army and
served until October 1, 1941. Petitioner testified that he protested at
the American consulate at Palermo, where he was allegedly told that the
best thing to do was to serve; petitioner also testified that he
protested to the Italian military authorities, but was reportedly told
that if he refused to serve he would be arrested and his family sent to
a concentration camp. On October 18, 1944, petitioner made application
for registration as a United States citizen and also applied for a
United States passport; at that time, petitioner failed to disclose
that he had served in the Italian Army and was granted a passport on
June 15, 1946. Petitioner returned to this country on July 16, 1946,
arriving at New York aboard the S.S. Vulcania.
According to the provisions of section 2 of the act of March 2, 1907,
a native-born citizen is expatriated upon taking an oath of allegiance
to a foreign state, if that oath is taken voluntarily. In the instant
case, however, the evidence indicates that petitioner did not take an
oath of allegiance in 1931, as an incident to his year's military
service, and he is not considered as having expatriated himself on that
occasion. In re Gogal, 75 F.Supp. 268 (W.D., Pa., 1947); Matter of C ,
VP-361035 (April 22, 1949). Thereafter, although petitioner had
adequate opportunity to leave Italy if he sincerely desired to do so,
but instead he went into business in Salemi and, with war clouds
threatening all over Europe, deliberately placed himself in a position
to be recalled to duty in the Italian Army. And petitioner again served
in the Italian Army for 7 months in 1941. On the basis of the facts of
record, petitioner's claim that this military service was under duress
has not been established (Podea v. Marshall, 83 F.Supp. 216 (E.D.,
N.Y., 1949); Matter of R , A-7142292 (October 21, 1949)). Thus,
petitioner lost his citizenship by virtue of military service in 1941
(sec. 401(c), Nationality Act of 1940).
The burden of proving citizenship is on petitioner in a visa petition
proceeding. Hence, it must be shown that extraordinary circumstances
amounting to true duress existed at the time of the military service in
1941 (Doreau v. Marshall, 170 F.(2d) 721 (C.A. 3, 1948)). The present
case does not parallel Matter of S , VP-385381 (August 3, 1949) (3, I. &
N. Dec. 701), as counsel suggests, since the cases are clearly
distinguishable on the facts. Matter of C , VP-361035 (April 22, 1949)
(3, I. & N. Dec. 586) is not controlling in the instant case, for in the
C case more affirmative evidence was presented, which was found to be
sufficient to negative a finding of expatriation.
Therefore, since the period of military service in 1941 was not shown
as occurring under duress, it is concluded that petitioner expatriated
himself by voluntarily acting in a manner inconsistent with his American
citizenship. (Savorgnan v. United States, 171 F.(2d) 155 (C.A. 7,
1949); Podea v. Marshall (supra).)
Order: It is hereby ordered that the appeal be dismissed.
Editor's note. -- In a letter to the Secretary of State dated
November 1, 1950, from the Chairman of the Board of Immigration Appeals,
in connection with the above case, the following appears:
"You ask to be advised as to the nature of the evidence which was
submitted to the Immigration and Naturalization Service for the purpose
of showing that Mr. G 's service in the Italian Army from October 1,
1931, to October 1, 1932, was performed involuntarily. You also state
that with reference to the second period of service from March 1, 1941,
to October 1, 1941, it appears that no evidence was submitted other than
the petitioner's testimony to the effect that he protested to the
American consul at Palermo, who informed him that the best thing to do
was to serve and that he thereafter protested to the Italian authorities
but was told that if he failed to serve he would be arrested and his
family sent to a concentration camp.
"The Board found that the evidence did not establish that petitioner
took an oath of allegiance in connection with his military service in
the Italian Army in 1931, as required by sec. 2 of the act of March 2,
1907, upon which to predicate expatriation of his American citizenship,
or that the second period of service was voluntary.
"The evidence established that Mr. G was born in Italy in 1902 and
was admitted to the United States for permanent residence on August 23,
1923; that he was naturalized in this country on September 23, 1929.
On September 4, 1931, he departed for Italy to visit his parents. His
testimony indicated that two weeks after his arrival in Italy, he was
served with notice of induction into the military service and he was
taken to the military center. He testified that he protested to the
Italian military authorities against service in the Italian Army on the
ground that he was a citizen of the United States but not to the
American consul. Nevertheless he was inducted into the Italian Army on
October 1, 1931, and served until October 1, 1932.
"According to Italian law in such cases, the oath of allegiance is
administered approximately 3 months after induction and all inductees
are required to take such an oath. Mr. G , however, testified that he
did not take an oath to the King of Italy but pretended to be ill and
was later punished for his nonattendance.
"Mr. G also deposed in a sworn affidavit that in connection with the
second period of military service, he protested to the Italian military
authorities displaying his United States passport but this action was of
no avail and he subsequently protested to the American consul with the
result already stated; that with respect to his second period of
service the Italian military authorities went to his home and insisted
that he report for service; that as a result of such enforced military
service he became seriously ill and was hospitalized in the military
hospital.
"In a sworn statement by S P , it is stated that:
""G S of the deceased I and of M , M , arrived as effective military
to the 23d Infantry Regiment, Como Brigade, October 5, 1931, and at the
taking of the oath, November 4, did not want to participate because he
was an American citizen, and was severely punished. The military
service class of 1910 was completed in 18 months, beginning April 1931
to November 1932, whereas G completed 12 months beginning October 5,
1931 to October 1, 1932.'
"In another sworn statement by V C , it is stated:
""I, the undersigned C V , son of the deceased G and of C M born at
Salemi on February 18, 1911, and presently residing in Fontanbianca,
declare under my own personal responsibility that I was a fellow soldier
of the 4th Regiment Infantry at Gorizia, with G , S , son of the
deceased I of and of M , M ; That Mr. G did not take the oath in the
Italian army. Salemi, September 7, 1949.'
"As you know, the court in the case of Dos Reis ex rel. Camara v.
Nicolls, 161 F.(2d) 860, ruled that a person who is a citizen of the
United States and also a citizen of a foreign state loses his United
States citizenship under the provisions of sec. 401(c), Nationality Act
of 1940, only if his entry or service in a foreign army is voluntary.
"Also, in the case of Bussa v. McGrath, decided by the United States
District Court, Northern District of New York, on March 18, 1950, which
involved the question whether Bussa lost his United States citizenship
by reason of his continued residence in the country of his birth, the
court ruled that he did not even though Bussa was the only witness in
his behalf. The court accepted his explanations of his reasons why he
remained in the country of his birth and why he participated in certain
actions ordinarily inconsistent with retention of his American
citizenship.
"In Petition of Nicola Lo Pomo (Petition for Nat. No. 191736) decided
by the United States District Court, Eastern District of Pennsylvania,
on June 7, 1950, the petitioner was born in the United States and taken
to Italy by his parents in August of 1928, where he remained until
October 25, 1948, when he returned to the United States. During his
stay in Italy he was inducted into the Italian Army on May 11, 1937, and
discharged August 18, 1938, reinducted September 4, 1939, demobilized in
September 1943, and finally discharged on March 4, 1944. He took oath
of allegiance about a month after his induction. In November 1933 he
applied for an American passport and asked to be returned to this
country, he then being without funds. This was found to be
impracticable. He registered at the American Consulate in Naples,
Italy, as an American citizen in 1938, 1942, and 1944, and applied for a
passport but passport was denied on the ground that he became
expatriated by taking an oath of allegiance to Italy after reaching
majority.
"The court pointed out that the record established that petitioner
offered no protest with respect to either induction or the taking of an
oath. The record also contained statement by petitioner that such
service was against his will. The court pointed out that under
conditions then existing in Italy protest would have been futile and
also protest under existing conditions would have resulted in reprisals
and punishment. The court found that service and oath by petitioner
were against his will. Citing Dos Reis ex rel. Camara v. Nicolls, 161
F.(2d) 860.
"Thus, on the basis of the uncontroverted evidence submitted in this
case, together with the fact that in each instance, G was inducted into
the Italian Army, and the circumstances surrounding the service,
together with the further fact of conditions existing in Italy at that
time, and in the light of court rulings in substantially similar
circumstances, the Board felt that its decision was justified beyond any
question.'
Fine -- Bringing by water an immigrant without an immigration visa -- Section 16 of the Immigration Act of 1924 -- Alien destined to United States.
A violation of section 16 of the Immigration Act of 1924 is
established in this case in that the passenger transported was an
immigrant not in possession of an unexpired immigration visa or valid
permit to reenter the United States which fact could have been
ascertained by the exercise of reasonable diligence; the features in
this case are distinguishable from one where the party was in fact
destined to Canada for business prior to entering the United States,
that fact was known prior to embarkation, his passage to Canada was
booked accordingly, and he proposed to proceed to the United States only
after completion of his business in Canada.
Discussion: This is a fine proceeding instituted under section 16 of
the Immigration Act of 1924 against I. H. Mathers and Sons, Ltd., Agents
for the S.S. Nea Hellas for bringing to the United States from foreign,
M C K , an alien passenger who is an immigrant not in possession of an
unexpired immigration visa.
The subject alien is a 37-year-old married female, a native of Cyprus
and a British subject, who is a lawfully resident alien of the United
States. She arrived at Halifax, Nova Scotia, as a passenger on the S.S.
Nea Hellas and was excluded by a board of special inquiry on July 25,
1949, on the ground that she was an immigrant not in possession of a
valid immigration visa. She was subsequently found admissible for
permanent residence upon preexamination at Halifax, Nova Scotia, when
she appeared there in possession of a visa issued under section 4(b) of
the Immigration Act of 1924 by the American Consulate at Halifax, Nova
Scotia, on July 26, 1949.
The record reveals that the alien left the United States on May 7,
1948, for a trip to Cyprus in the company of her husband. She was
issued a reentry permit on May 26, 1948, which expired on May 26, 1949.
At Piraeus, Greece, on July 7, 1949, she surrendered to respondent the
return portion of her round-trip ticket which had been purchased in the
United States; secured transportation and embarked for the United
States on July 10, 1949. The alien and her husband testified that at
the time transportation for the return trip was given to them, the agent
who issued the ticket did not examine the alien's reentry permit, which
had then expired.
The record reveals that subsequent to embarkation, the ship's purser
informed the alien that the reentry permit had expired and suggested
that the alien and her husband leave the ship at Lisbon, Portugal.
The alien's husband testified they did not leave the ship at Lisbon
and apply for an immigration visa because the Canadian consul who
visited the ship at Lisbon informed him that as long as he and his wife
were going to Canada, she could apply for a visa in Canada. The alien's
husband also spoke to the American consul who visited the ship at
Lisbon, but is unable to state what he was told by the American consul.
Protest filed on behalf of the respondent on the ground that at the
time the alien applied for passage to the United States in June or July
1949, the Piraeus office noted that her reentry permit had expired;
that thereupon, the Piraeus office instructed the alien to apply to a
British or Canadian official and secure a transit visa to Canada where
she could then apply for the proper documents for entrance into the
United States; that upon her receipt of a transit visa she was booked
for passage, not to a port of the United States, but to the port of
Halifax, Nova Scotia, and that she was listed on the manifest of the
vessel as destined for Halifax, not to a port of the United States. It
is urged that fine may be imposed under section 16(a) of the Immigration
Act of 1924 and 8 C.F.R. 160.10 only in cases where a vessel brings
aliens "to the United States by water from any place outside thereof
(other than foreign contiguous territory)'; and that in the instant
case the vessel brought the subject alien not "to the United States,'
but to the port of Halifax, Nova Scotia; and that neither the law nor
regulation has application to the facts of the instant case.
The protest further urges that the subject alien, as the wife of an
American citizen and a person who was lawfully admitted to the United
States who was returning from a temporary visit abroad, could seek entry
at an American port, without the carrier being liable for the imposition
of fine in view of the holdings in Johnson v. Keating, 17 F.(2d) 50
(C.C.A. 1, 1926), and Rederiaktiebolaget v. U.S., 61 F.(2d) 808 (C.C.A.
9, 1932).
The carrier is signatory to the Canadian (Overseas) Agreement
(56239/193) executed under section 23 of the Immigration Act of 1917 and
section 17 of the Immigration Act of 1924. Under the law and by the
terms of the agreement, the carrier must therefore be treated in the
same manner that the carrier would be treated which brings an alien
directly to a port in the United States.
Had the carrier brought the alien directly to a port in the United
States, fine would have been imposed since the carrier knew or could
have ascertained by the exercise of reasonable diligence that the
subject alien was an immigrant not in possession of an unexpired
immigration visa.
In the Matter of Plane CF TPH TCA 208, F-4847 (April 12, 1950), B.I.
A.), the Board of Immigration Appeals held that where an applicant
destined to Canada was ultimately to proceed to the United States after
transacting business in Canada which would require him to remain there
for an unknown period of time, a violation of section 16 of the
Immigration Act of 1924 for bringing an immigrant not in possession of
an unexpired immigration visa was not established. We distinguish the
instant case from the case above cited in that, the alien herein was in
fact destined to the United States while the alien in the above-cited
case was in fact destined to Canada for the purpose of transacting
business there. Fine must therefore be imposed in the instant case.
The case of Johnson v. Keating (supra) cited by the respondent, was
overruled in U.S. ex rel. Polymeris v. Trudell, 284 U.S. 279 (1932)
where the court stated:
A returning alien cannot enter unless he has either an
immigration visa or a return permit.
In the instant case the alien, who must be regarded as applying for
admission at a port of the United States, was not in possession of an
immigration visa or an unexpired reentry permit.
The decision in Rederiaktiebolaget v. U.S. (supra), was overruled by
the case of Hamburg American Line v. U.S., 65 F.(2d) 369 (C.C.A. 2,
1933, aff'd 291 U.S. 420 (1934)).
Inasmuch as it appears the alien obtained a visa in Canada at no
unusual expense, and was not required to leave the United States to
adjust her status, it cannot be held that her journey was fruitless and
passage money will not be imposed as part of the penalty.
Findings of Fact: Upon the basis of all the evidence presented, it
is found:
(1) That the S.S. Nea Hellas arrived at Halifax, Nova Scotia,
on July 24, 1949, having on board, the alien passenger, M.C.K., an
immigrant destined, in fact to the United States.
(2) That the subject alien, a native of Cyprus and citizen of
Great Britain, applied for admission to the United States for
permanent residence, and did not present an immigration visa.
(3) That the alien was excluded by a Board of Special Inquiry
as an immigrant not in possession of an unexpired immigration visa
and that she did not appeal the excluding decision.
(4) That the respondent knew or could have ascertained by the
exercise of reasonable diligence that the subject alien was an
immigrant not in possession of an unexpired immigration visa.
Conclusion of Law: Upon the basis of the foregoing findings of fact,
it is concluded: (1) That under section 16 of the Immigration Act of
1924, a penalty has been incurred.
Recommendation: It is recommended that fine be imposed. The amount
involved is $1,000.
Discussion: This matter is before us by reason of an appeal from the
decision of the Assistant Commissioner of Immigration and Naturalization
dated April 21, 1950, wherein fine in the amount of $1,000 was imposed
against I. H. Mathers and Sons, Ltd., Agents for the S.S. Nea Hellas,
which vessel arrived at Halifax, Nova Scotia, on July 24, 1949, for
violation of section 16 of the Immigration Act approved May 26, 1924 (8
U.S.C., 216). The specific violation is "bringing to the United States
by water an immigrant alien who does not have an unexpired immigration
visa.'
The passenger involved in this case testified that she was born in
Kyssonerga, Paphos, Cyprus, on August 15, 1902, and that she is a
British subject. She further testified that she was in the United
States from April 4, 1928, to November 1937 and from May 27, 1938, to
May 7, 1948, on which latter mentioned date she departed from New York
ex S.S. Nea Hellas for the purpose of visiting abroad. At the time of
departure she was accompanied by her husband, a citizen of the United
States.
Prior to departure from Detroit, Michigan, this passenger applied for
and obtained a permit to reenter the United States which permit was
delivered to her by the United States consul in the Island of Cyprus.
The validity of such permit extends for a period of 1 year.
The subject passenger embarked at Piraeus, Greece, on July 10, 1949,
on the return portion of contract at which time it is indicated that the
agent for the line did not inspect the permit to reenter the United
States. A day after departure from Genoa, Italy, the purser's office
inquired as to whether or not the subject alien was in possession of a
permit as herein referred to and it was on that occasion that it was
discovered that the validity of the said permit had expired. Thereupon
it was suggested that the subject disembark at Lisbon, Portugal, and
communications were directed by telegraph to the United States and
Canadian consuls both of whom boarded the ship in Lisbon. It is
alleged, "The Canadian consul told me that as long as I was going to
Canada I could apply for a visa in Canada.'
Upon arrival in Halifax, Nova Scotia, and subsequent to inspection by
the Canadian authorities the subject passenger was interrogated by the
United States immigrant inspector at that port and on July 25, 1949, she
appeared before the board of special inquiry which board found her
inadmissible to the United States in that she was an immigrant not in
possession of a valid immigration visa.
Section 13 of the Immigration Act approved May 26, 1924 (8 U.S.C.
213(a)), provides that no immigrant shall be admitted to the United
States unless he (1) has an unexpired immigration visa.
Section 10 of the Immigration Act approved May 26, 1924 (8 U.S.C.
210), provides among other things (a) Any alien about to depart
temporarily from the United States may make application to the
Commissioner of Immigration and Naturalization for a permit to reenter
the United States, stating the length of his intended absence, and the
reasons therefor.
Section 30 of the act of June 28, 1940 (8 U.S.C. 451), provides:
"Any alien seeking to enter the United States who does not present a
visa (except in emergency cases defined by the Secretary of State), a
reentry permit, * * * shall be excluded from admission to the United
States.' Section 16 of the Immigration Act approved May 26, 1924
(supra), provides in part as follows:
(a) It shall be 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 * * *.
(b) If it appears to the satisfaction of the Attorney General
that any immigrant has been so brought, such person, or
transportation company, or the master, 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 immigrant so brought, and in
addition a sum equal to that paid by such immigrant for his
transportation from the initial point of departure, indicated on
his ticket, to the port of arrival, * * *.
(c) Such sums shall not be remitted or refunded, unless it
appears to the satisfaction of the Attorney General that such
persons, and the owner, master, agent, charterer, or 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, (1) that the
individual transported was an immigrant, if the fine was imposed
for bringing an immigrant without an unexpired immigration visa *
* *.
Subsequent to the arrival of the vessel at Halifax, Nova Scotia, the
Canadian authorities paroled this passenger and she subsequently
obtained a consular immigration visa from the American consul in Canada
in order that she could proceed to her home in the United States.
In a report dated August 11, 1949, from the Acting District Director
of Immigration and Naturalization, St. Albans, Vt., it is set forth that
the alien passenger was in fact destined to the United States but she
was not in possession of a valid immigration visa and the validity of
the reentry permit which she held had expired prior to her embarkation
in Europe. If the line's agent at the port of embarkation had examined
the reentry permit, and reasonable diligence would have so required, it
could have been ascertained quite readily that this passenger was
inadmissible to the United States because she was not in possession of
the requisite documents pursuant to statute.
Counsel in behalf of the line involved relies upon a decision of this
Board in the Matter of Plane CF TFH TCA 208, decided April 12, 1950,
File F.-4847, unreported. That decision was distinguished by the
Assistant Commissioner of Immigration and Naturalization in his decision
as aforesaid from the present case in that the alien passenger there
involved one, E S D , was in fact destined to Canada for business prior
to entering the United States and that fact was known prior to
embarkation and his passage to Canada was booked accordingly. It was
not until after completion of his business in Canada that he proposed to
proceed to the United States. This Board affirms the distinguishing
features of the D case from that in the present case.
After careful consideration of all of the evidence of record as well
as all of the representations of counsel both on the protest and on the
appeal, it is the conclusion of this Board that a violation of section
16 of the Immigration Act approved May 26, 1924 (supra), has been
established in that the passenger transported was an immigrant not in
possession of an unexpired immigration visa or valid permit to reenter
the United States which fact could have been ascertained by the exercise
of reasonable diligence, the line's agent having failed to inspect the
permit to reenter the United States, the validity of which permit had
expired prior to the alien's embarkation and, further, that the alien
was not in possession of an unexpired immigration visa.
Order: It is ordered, That the appeal from the decision of the
Assistant Commissioner of Immigration and Naturalization be and the same
is hereby dismissed.
Fine -- Bringing alien afflicted with tuberculosis -- Section 9, Immigration Act of 1917 -- Nonimposition of fine though such affliction ascertainable at time of foreign embarkation, if alien admitted temporarily for medical treatment.
By reason of long administrative practice, it has been held that if
an alien is temporarily admitted under the 9th proviso to section 3 of
the Immigration Act of 1917 (for medical treatment in this case)
notwithstanding the alien's inadmissibility (as one afflicted with
tuberculosis in this case), no fine under section 9 of the above act
will be considered to have been incurred even though the ground of
inadmissibility could have been ascertained at the time of foreign
embarkation, note being taken of the proviso contained in section 9,
supra.
Discussion: This is a fine proceeding instituted under section 9 of
the Immigration Act of 1917 against the Master of the S.S. Flying
Enterprise for bringing to the United States from foreign the
above-named alien who was found to be afflicted with tuberculosis.
The subject alien was a passenger aboard the S.S. Flying Enterprise
when it arrived at Baltimore, Md., from foreign via Norfolk, Va., on
February 27, 1950. He was certified by a surgeon of the United States
Public Health Service as afflicted with tuberculosis, right upper lobe,
and, consequently, was excluded by a Board of Special Inquiry. The
subject applied for temporary admission for medical treatment. By order
dated March 6, 1950, it was directed that the alien be admitted to the
United States under the 9th proviso to section 3 of the Immigration Act
of 1917, as a temporary visitor for 3 months for medical treatment
notwithstanding that he was afflicted with tuberculosis and that his
passage was paid for with the funds of another person, conditioned upon
the Department of State granting a waiver of the visa requirement, and
upon the posting of a treatment, public charge and departure bond in the
amount of $1,000 (C.O. File A-7424817). The subject met the conditions
of the order and was admitted under section 3(2) of the Immigration Act
of 1924, for a period of 3 months on March 14, 1950. Protest has not
yet been received and the time to do so will not expire until May 1,
1950. On the basis of a proviso contained in section 9 of the
Immigration Act of February 5, 1917, as amended, hereinafter discussed,
the Acting District Director at Baltimore, Md., recommends that fine be
not imposed. Said proviso provides that nothing contained in section 9
"shall be construed to subject transportation companies to a fine for
bringing to ports of the United States aliens who are by any of the
provisos or exceptions to section 3 of this act exempted from the
excluding provisions of said section.' In the instant case, the subject
was admitted to the United States under the discretionary authority
granted to the Attorney General by the 9th proviso to section 3 of the
Immigration Act of 1917. "By reason of long administrative practice, it
has been held that where an alien is so admitted, no fine under section
9 of the 1917 Act will be considered to have been incurred even though
the ground of inadmissibility could have been ascertained at the time of
foreign embarkation.' Matter of Plane NC-19903, 56088/246 (October 23,
1942); Matter of S.S. Copiapo, 56118/384 (May 14, 1943); Matter of
Plane CF TOT, 56160/617 (January 5, 1946). Accordingly, it is concluded
that no penalty should attach herein.
Recommendation: It is recommended that fine be not imposed. The
amount involved is $1,000, plus $208 passage money.
So ordered.
Citizenship -- Expatriation by naturalized citizen by residence abroad -- Section 404 of the Nationality Act of 1940 -- Residence in country of which formerly a national -- British subject in Canada.
A native of England a British subject, came to Canada and lived there from 1904 to 1919; then he lived in the United States from 1919 to January 1946 since when he lived in Canada. He was not a Canadian National when he left Canada in 1919, nor has he acquired Canadian Nationality since January 1946, within the meaning of the Canadian Nationals Act of 1921. He became naturalized in the United States in May 1924. Such a person is not held to have expatriated himself under the provisions of section 404 of the Nationality Act of 1940, under the circumstances indicated.
EXCLUDED BY A BOARD OF SPECIAL INQUIRY:
Act of 1924 -- No immigration visa.
Executive Order 8766 -- No passport.
Discussion: The facts in this case may be briefly stated. The
appellant was born in England in 1877. He entered Canada in 1904 and
resided there until 1919. He lived in the United States from 1919 to
January 1946. He became a naturalized United States citizen on May 8,
1924. On January 7, 1946, he departed to Canada and has resided in
Canada until the date of the present application. He now seeks to
return to the United States as a citizen of this country.
The narrow question presented is whether the appellant has lost
United States citizenship by his residence in Canada on and after
January 1946. The Board of Special Inquiry concluded that the appellant
had forfeited United States nationality pursuant to the provisions of
section 404(b) of the Nationality Act of 1940, as amended, and ordered
exclusion on the above-stated grounds.
Section 404(b) of the Nationality Act reads:
Sec. 404. A person who had become a national by naturalization
shall lose his nationality by:
(b) Residing continuously for three years in the territory of a
foreign state of which he was formerly a national or in which the
place of his birth is situated * * *.
The Board of Special Inquiry found that the appellant was formerly a
national of Canada (prior to entering the United States in 1919) and,
consequently, by returning to Canada in 1946 and residing there
continuously for three years he divested himself of United States
nationality under the above quoted provision of law.
In determining that the appellant formerly held Canadian nationality,
the Board of Special Inquiry relied on the Canadian Immigration Act of
1910, which in pertinent part provides:
2. In this act, and in all orders in council, proclamations and
regulations made hereunder, unless the context otherwise requires.
(a) "Alien' means a person who is not a British subject;
(b) "Canadian citizen' means^
(i) A person born in Canada who has not become an alien;
(ii) A British subject who has Canadian domicile; or
(iii) A person naturalized under the laws of Canada who has not
subsequently become an alien or lost Canadian domicile:
Under the Canadian Immigration Act of 1910, "domicile' is defined as
the place in which a person has his home, or in which he resides, or to
which he returns as his place of permanent abode, and does not mean the
place where he resides for a mere special or temporary purpose. This
Act also provides that Canadian domicile can only be acquired, for the
purposes of this statute, by a person having his domicile for at least
five years in Canada after having been landed therein within the meaning
of this statute.
The Board of Special Inquiry concluded that the appellant, a British
subject at birth, acquired Canadian nationality prior to entering the
United States in 1919 by having maintained a domicile in Canada for a
period of 5 years continuously.
It is important to note that the Canadian Act of 1910 related to
immigration matters only. The acquisition and loss of nationality in
Canada was provided for in the Naturalization Act of 1914. /1/ The
latter act, however, speaks only of British nationality and does not use
the term Canadian citizen or Canadian national. This distinction is
important, for it means that under Canadian nationality laws, so long as
the 1914 Act was in effect, did not comprehend the independent status of
Canadian nationality, which was merged in the broader concept of British
nationality.
The next legislation which should be considered is the Canadian
Nationals Act of 1921, subtitled, "An act to define Canadian nationals
and to provide for the renunciation of Canadian nationality.' Section 2
of the Canadian Nationals Act of 1921 reads:
2. The following persons are Canadian Nationals, viz:
(a) Any British subject who is a Canadian citizen within the
meaning of the Immigration Act:
We see now that it was not until 1921 under the Canadian Nationals
Act that provision was made for recognition of Canadian nationals as
distinguished from British subjects; also, that under this Act British
subjects who were Canadian citizens within the meaning of the
Immigration Act were accorded the status of Canadian nationals. Since
the appellant left Canada in 1919, he cannot be held to have been
subject to the Canadian Nationals Act of 1921. We are, therefore, left
with the question of determining what effect should be given to the term
"Canadian citizen' as used in the Immigration Act of 1910, for it is
clear under this act the appellant was within the definition of a
Canadian citizen.
In reaching a decision on this question, we are guided by the
interpretation given to the Canadian law by Mr. J. E. Duggan, Registrar
of Canadian Citizenship, Department of the Secretary of State, Canada,
in a communication, dated November 1, 1949, addressed to Mr. Charles B.
Follmer, American Consul, American Embassy, Ottawa, Canada, which reads
in part as follows:
I would take it that Mr. H , who was born in England, resided
in Canada from 1904 to 1919 but not at any other time. During his
residence in Canada he would have had the status of a British
subject by birth but he would not have been considered a Canadian
citizen, within the meaning of the Canadian Nationals Act as that
Act was not passed until 1921. He may possibly have had the
status of a Canadian citizen for immigration purposes, within the
meaning of the Canadian Immigration Act, but insofar as
citizenship is concerned, in terms of nationality, Mr. H would
have had the status of a British subject but not that of a
Canadian citizen. You will understand, of course, that for
naturalization purposes there was not, up to the 1st January 1947,
an official term such as Canadian citizen and that during the
years 1904 to 1919 Mr. H could not have called himself a Canadian
citizen officially.
Taking all of the foregoing into consideration, we are led to believe
that the following view should prevail. There was no naturalization or
nationality law in Canada after 1914 under which the appellant could
have acquired the status of a Canadian citizen. Inasmuch as he left
Canada in 1919, he was not affected by the Canadian Nationals Act of
1921. It is true that having been a British subject domiciled in Canada
for five years, he could have been termed a "Canadian citizen' under the
Immigration Act of 1910. However, such status was for the narrow
purposes of immigration only. Under the general or broader concept of
nationality, the appellant remained a British subject during his
residence in Canada from 1904 to 1919.
If the appellant was not a national of Canada, then his residence in
Canada after January 1946 is not residence in the foreign state of which
he was formerly a national and the provisions of section 404(b) do not
apply. It is clear that the applicant's expatriation may be
accomplished by residence in a foreign state for a continuous period of
5 years (following his naturalization) pursuant to the provisions of
section 404(c) of the Nationality Act of 1940. However, he has not
resided in Canada for the specified 5-year period, hence, section 404(
c) (supra) is not operative.
It is observed that under date of May 16, 1949, the Department of
State, Washington, D.C., approved his registration in Canada as an
American citizen to be valid to January 7, 1951. Thus the Department of
State has taken the same position as has been reached here; namely,
that the appellant will not become expatriated by residence in Canada
until he has resided in that country continuously for a period of 5
years.
Order: It is ordered that the appeal be sustained and that the
appellant be admitted as a United States citizen.
(1) Prior to the Naturalization Act of 1914, the acts governing
nationality and naturalization in Canada were the acts of May 15, 1902,
August 13, 1903, August 10, 1904, and July 20, 1905. The naturalization
provided for in these acts was purely of a local character. The 1914
regislations repealed the above acts. Nationality Laws, Flournoy and
Hudson, p. 73, fn.
Government (foreign) Official's Family -- Alien's deportability for failure to maintain status under section 3(1) of the act of 1924 and regulations now in effect -- Section 14 and section 15 of the act of 1924, as amended.
(1) Statutory authority for imposing conditions of admission with respect to foreign government officials and their families (aliens), who enter the United States under the provisions of section 3(1) of the Immigration Act of 1924; is found in the amendment of July 1, 1940, to section 15 of the Immigration Act of 1924; and a regulation "executing' this statutory authority as of May 27, 1944 is to be found in 8 C.F.R. 110.29, as amended May 27, 1944.
(2) The respondents, who were admitted in 1939 under section 3(1) of the act of 1924, no longer had such official status in 1946 (when the government official husband/father returned to China), and are deemed to be deportable under sections 14 and 15 of the Immigration Act of 1924, as amended, because of failure to maintain status under section 3(1) of the act of 1924 and regulations now in effect.
CHARGE:
Warrant: Act of 1924 -- Remained longer -- Members of family of
government official.
Discussion: These records relate to a 46-year-old married female,
her 22-year-old single male child, 18-year-old single male child, and
her 14-year-old daughter, all natives and citizens of China, of the
Chinese race, whose only entry into the United States occurred at the
port of New York, N.Y., on February 3, 1939, at which time they were
admitted as members of the family of a government official. Their
entries have been verified. The government official husband/father
returned to China in 1946. The respondents have continued to reside in
the United States.
In the belief that they were subject to deportation, the respondents
voluntarily submitted themselves to deportation proceedings in
accordance with the provisions of 8 C.F.R. 150.10, requesting that their
deportation be suspended in accordance with the provisions of section
19(c)(2)(b) of the Immigration Act of 1917, as amended. They are
eligible for the relief requested only if they are subject to
deportation. The only possible ground of deportability is that set
forth in the caption hereof. For the reasons hereinafter set forth, it
is the view of this Service that the respondents are not subject to
deportation at the present time.
The prior to July 1, 1940, foreign government officials and members
of their families were admissible to the United States without the
imposition of conditions with respect to duration of stay and
maintenance of status. This, for the reason that section 15 of the act
of May 26, 1924, prior to its amendment by the act of July 1, 1940,
contained no statutory authority for the promulgation of regulations
imposing conditions of admission with respect to government officials
and their families. Accordingly, if the respondents were required to
maintain their status in order to avoid deportation such requirement, if
it exists, must be found in legislation enacted or regulations
promulgated subsequent to their entry.
The act of July 1, 1940, amended section 15 of the 1924 act by
including government officials and their families within the statutory
authority for whom terms of admission could be imposed in accordance
with regulations to be prescribed, and adding a proviso to that section.
This amendment was considered by the Board of Immigration Appeals in
Matter of D P , A-4074327 (formerly 56043/906) in its orders on January
14, 1941, and July 31, 1941, and again considered and discussed on
January 27, 1941, by the Board of Immigration Appeals in Matter of G ,
A-1256369 (formerly 55974/884). In those cases the view was advanced
that the proviso was indicative of the congressional intent to make the
provisions of section 15, as amended, applicable to aliens who were
admitted to the United States under clause (1) of section 3 prior to
July 1, 1940, the effective date of the amendment.
This Service does not question the soundness of that conclusion. It
does question, however, the effect of such conclusion on the
deportability of aliens in the absence of any regulation imposing
conditions of admission at time of entry or imposing conditions
subsequent to entry, the breach of which would be a ground of
deportability under the immigration laws. Attention is directed to the
fact that notwithstanding the amendment of July 1, 1940, it was not
until May 16, 1944, that a regulation was duly promulgated (8 C.F.R.
110.29(a)) amending the regulation in existence since December 21, 1933
(General Order No. 207), so as to require that the admission of a
government official and his family shall be conditioned on their
maintaining status. Up to the present time there is still no regulation
limiting the time for which a government official and his family may be
admitted notwithstanding the 1940 amendment to section 15 of the 1924
act as interpreted by the Board of Immigration Appeals. Nor has there
been up to the present time any regulation imposing maintenance of
status as a condition to remaining in the United States on those
government officials and their families who entered the United States
prior to July 1, 1940, at which time their entry was unconditional.
In the absence of any regulation it is necessary to determine whether
the statute itself is sufficient to accomplish the legislative intent
which appears in the report of the Committee on Immigration and
Naturalization of the House of Representatives that accompanied the bill
which later became the act under discussion (Report No. 2645, House of
Representatives, 76th Cong., 3d sess., to accompany H.R. 1011). In
this report we find the following:
The purpose of the Bill is to require aliens who were admitted
to the United States as officials of foreign governments to
maintain their status or depart from the United States.
* * * It was stated by the witness appearing that such a Bill
was very necessary at this time in view of the fact that many
individuals were admitted as officials of foreign governments or
connected in some way with the regular officials of foreign
countries that in many instances their connection with the foreign
government has terminated but under present laws, they are
permitted to remain.
Section 15 of the 1924 act, as last amended, provides:
The admission to the United States of an alien excepted from
the class of immigrants by clause (1), (2), (3), (4), (5), (6), or
(7) of section 3, or declared to be a nonquota immigrant by
subdivision (e) of section 4, shall be for such time and under
such conditions as may be by regulations prescribed (including,
when deemed necessary for the classes mentioned in clause (2),
(3), (4), or (6) of section 3 and subdivision (e) of section 4,
the giving of bond with sufficient surety, in such sum and
containing such conditions as may be by regulations prescribed) to
insure that, at the expiration of such time or upon failure to
maintain the status under which admitted, he will depart from the
United States: Provided, That no alien who has been, or who may
hereafter be, admitted into the United States under clause (1) or
(7) of section 3 as an official of a foreign government, or as a
member of the family of such official, or as a representative of a
foreign government in or to an international organization, or an
officer or employee of an international organization, or as a
member of the family of such representative, officer, or employee,
shall be required to depart from the United States without the
approval of the Secretary of State.
The Circuit Court of Appeals for the Eighth Circuit on July 5, 1935,
in the case of Chung Yim v. United States, 78 F.(2d) 43; (writ of cert.
den., 50 S.Ct. 150), held that:
This section 15 is not self-executing insofar as it has to do
with the right of the alien to remain in this country, but it
delegates to the Department of Labor power to promulgate
regulations and prescribe conditions.
It necessarily follows from this judicial pronouncement which has
been the last word on the subject by the courts, that in the absence of
appropriate regulation, section 15 of the 1924 act, at least as it
existed at the time of the court's decision, was inoperative. At the
time of the court's decision, section 15 read as previously set forth
above except that the present proviso concluding section 15 was not then
a part of the section and with the further difference that the opening
sentence read as follows:
The admission to the United States of an alien excepted from
the class of immigrants by clause (1) (except a government
official and his family), (2), (3), (4), (5), or (6) of section 3
* * *.
It is the view of this Service that the changes in section 15 brought
about by the 1940 amendment made no such material changes in the
substantive provisions of the section as to negative the decision of the
Eighth Circuit Court of Appeals. The Board of Immigration Appeals, in
its two previous decisions, concluded that the proviso merely served to
make the section retroactive. If, as the court held, the section was
not self-executing, it did not become self-executing merely because it
was intended that the section when operative have retroactive effect.
The section is not operative until regulations are promulgated as set
forth therein. The removal of the parenthetical words "except a
government official and his family' certainly cannot be held to have the
effect of making self-executing a section which previously had been held
to be not self-executing at a time when the words in the parentheses
were present.
To sum up, maintenance of status to be a ground of deportability must
be required either by regulation or by a self-executing statute. There
has not been and there is not now any regulation making maintenance of
status a condition prerequisite to remaining in the United States on the
part of a government official and his family who were duly admitted to
the United States as such prior to May 16, 1944. This Service is of the
opinion that the decision of the Eighth Circuit Court of Appeals is as
valid today under the present wording of section 15 as it was on the day
the decision was rendered. It necessarily follows that in the absence
of a regulation, or a self-executing statute, maintenance of status on
the part of the respondents was not and is not now required, and their
failure to maintain such status does not subject them to deportation.
Except for the prior decision of the Board of Immigration Appeals
previously cited herein, this Service would be disposed to cancel the
warrants of arrest on the ground that the respondents were not subject
to deportation. Those cases, however, reached a contrary conclusion
apparently on the basis that section 15 was self-operative and required
no regulation to carry out its terms. It does not appear whether this
point was considered in the prior cases. The Circuit Court of Appeals
has held to the contrary. The decision of the Board of Immigration
Appeals, except as may be modified or overruled by the Board of
Immigration Appeals or the Attorney General, is binding on all officers
and employees of the Immigration and Naturalization Service (8 C.F.R.
90.3(d)). In accordance with 8 C.F.R. 90.3(b), the instant cases should
be certified to the Board of Immigration Appeals for final decision with
a recommendation that the Board of Immigration Appeals reconsider its
earlier decisions.
Recommendation: It is recommended that the warrant of arrest in the
case of S H C C , C P C , C C C , and C C be canceled and proceedings
thereunder terminated.
It is further recommended, That in accordance with the provisions of
8 C.F.R. 90.3(b) these cases be certified to the Board of Immigration
Appeals for final decision.
So ordered.
This case has been certified to the Board pursuant to 8 C.F.R. 90.3(
b) for review of an opinion by the Assistant Commissioner dated March
14, 1950, finding the respondents not subject to deportation on the
above-stated charge laid under the Immigration Act of 1924, to wit, that
they have remained in the United States after failure to maintain the
exempt status under which admitted, and directing termination of the
deportation proceedings.
Discussion as to Deportability: The facts of the case are fully
stated in the Assistant Commissioner's opinion. Briefly they relate to
a 46-year-old married female, her 22-year-old unmarried son, another son
18 years of age, unmarried, and a daughter 14 years of age, all natives
and citizens of China, of the Chinese race, whose only entry into the
United States occurred at the port of New York on February 3, 1939, at
which time they were admitted as members of the family of a Chinese
government official. Their entries have been verified. The respondents
have continued to reside in the United States since the husband/father
returned to China in 1946.
The respondents voluntarily submitted themselves to deportation
proceedings in accordance with the provisions of 8 C.F.R. 150.10 and in
connection therewith submitted applications for the suspension of their
deportation pursuant to section 19(c)(2)(b) of the Immigration Act of
1917, as amended. They are eligible for the relief sought only if they
are subject to deportation and the only possible ground of deportability
appears to be the one set forth in the caption above.
Prior to July 1, 1940, section 15 of the Immigration Act of 1924
contained no statutory authority for imposing conditions of admission
with respect to government officials and their families who entered the
United States in a diplomatic capacity. The act of July 1, 1940,
amended Section 15 /1/ of the 1924 act to provide for this authority
with the priviso that no official of a foreign government or a member of
his family shall be required to depart from the United States without
the approval of the Secretary of State. This Board has held that
Section 15 (supra), as amended in 1940, is applicable to aliens who were
admitted to the United States under clause (1) of Section 3 (1924 Act)
prior to July 1, 1940, the effective date of the amendment. /2/ In
other words, the amended section is retroactive.
The Assistant Commissioner, relying on judicial precedent /3/ that
section 15 (supra), is not self-executing, questions the effect of the
foregoing conclusion by this Board with regard to the deportability of
aliens in the absence of any regulation imposing conditions of admission
at the time of entry or subsequent to entry, the breach of which would
be a ground of deportability under the immigration laws. The Service
disposes of this question by finding that the failure of the respondents
to maintain their diplomatic status does not subject them to deportation
because "there has not been and there is not now any regulation making
maintenance of status a condition prerequisite to remaining in the
United States on the part of a government official and his family who
were duly admitted to the United States prior to May 16, 1944.'
We agree with the Assistant Commissioner's conclusion that section 15
(supra) requires the promulgation of regulations to make it effective.
We do not agree, however, that there is no regulation which affects the
operation of the statute insofar as the deportability of the respondents
is concerned.
This Board in the D P case (supra) determined that section 15, as
amended, is retroactive with respect to failure to maintain status as
well as the date of an alien's entry. In this connection we said: "* *
* One who was admitted under Section 3(1) and who no longer has a status
under this provision of law fails to maintain the status under which
admitted not only on the date that failure first occurred, but
continuously from that time onward. There is no sound distinction
between one who for the first time ceased to maintain a status under
clause (1) of section 3 after the enactment of the law of July 1, 1940,
and one who ceased to maintain such status prior to that date and
continued his noncompliance with the statute thereafter.'
8 C.F.R. 110.29 is one of the regulations intended to "execute'
section 15, as amended (supra), by setting forth the period of time and
conditions of admission for aliens with official status as well as
visitors and traders. Prior to May 27, 1944, an exception to this
section read as follows: "A government official and his family shall be
admitted without limitation of time and shall not be required to
maintain their specific status or to give bond.' This exception was
amended effective May 27, 1944, by deleting from the paragraph the words
"to maintain their specific status or.'
Accordingly, subsequent to May 27, 1944, alien government officials
have been required by regulation as well as statute to maintain their
specific status. The facts of the case at bar indicate that the
respondents ceased to maintain their official status when the government
official husband/father returned to China in 1946. Applying the same
reasoning to the regulations as we have applied to the statute (sec. 15,
supra), we are of the opinion that the condition set forth in 8 C.F.R.
110.29 as it now reads is applicable to alien government officials and
their families who were admitted prior to the amendment of the
controlling statute but who, subsequent to the amendment of 8 C. F.R.
110.29, have continued their noncompliance with the statute. In other
words, the amendment of 8 C.F.R. 110.29(a) executed section 15 as of May
27, 1944, and failure to maintain status thereafter on the part of
government officials and their families who were admitted prior to July
1, 1940, places them in the same category as those government officials
admitted subsequent to May 27, 1944. As the respondents have failed to
maintain status under section 3(1) of the Immigration Act of 1924 and
the regulations now in effect, they are subject to deportation under the
provisions of sections 14 and 15 of the Immigration Act of 1924, as
amended.
This conclusion is supported by the report of the Committee on
Immigration and Naturalization of the House of Representatives that
accompanied the bill which later became the amended section under
discussion (Report No. 2645, House of Representatives, 76th Cong., 3d
sess., to accompany H.R. 10112). In this respect we find the follows:
The purpose of the bill is to require aliens who were admitted
to the United States as officials of foreign governments to
maintain their status or depart from the United States.
* * * It was stated by the witnesses appearing that such a bill
was very necessary at this time in view of the fact that many
individuals were admitted as officials of foreign governments or
connected in some way with the regular officials of foreign
countries that in many instances their connection with the foreign
government has terminated but under present law they are permitted
to remain.
Clearly, the purpose of the amendment to section 15 (supra) as set
forth in the above-quoted congressional report should not be thwarted.
Discussion as to Eligibility for Suspension of Deportation: The
respondents are a Chinese family consisting of a mother, her two sons
and a daughter. They have resided continuously in the United States
since February 3, 1939. The husband/father returned to China in 1946 to
accept a professorship at the National Peking University.
The elder male respondent is employed as a private Chinese tutor.
The younger male respondent is a scholarship student at Harvard
University. He is employed during the school term in the university
dining hall and otherwise employed during summer vacation. The daughter
is also a student. The mother was gainfully employed during 1945 as a
scenery and costume designer. She has been supported by a fund provided
by her husband before he departed for China.
The respondents are not subject to deportation under any of the
categories mentioned in section 19(d) of the Immigration Act of 1917, as
amended. They have submitted numerous letters and affidavits attesting
to their good moral character. Reports of character investigation are
favorable. The files of the Federal Bureau of Investigation disclose no
criminal record. The respondents have all testified that if permitted
to remain permanently, they intend to become citizens of the United
States. Under the circumstances, since they have resided in the United
States for more than 7 years and appear to be persons of good moral
character, we will enter an order suspending their deportation.
Suspension of Deportation -- Findings of Fact: Upon the basis of all
the evidence presented, it is found:
(1) That the aliens are not ineligible for naturalization in
the United States;
(2) That the aliens have been of good moral character for the
preceding 5 years;
(3) That the aliens have resided continuously in the United
States since February 3, 1939;
(4) That after full inquiry no facts have been developed which
would indicate that the aliens are deportable under any of the
provisions of law specified in section 19(d) of the Immigration
Act of 1917, as amended.
Suspension of Deportation -- Conclusion of Law: Upon the basis of
the foregoing findings of fact, it is concluded:
(1) That the aliens are eligible for suspension of deportation
under the provisions of section 19(c)(2)(b) of the Immigration Act
of 1917, as amended.
Order: It is ordered that deportation of the aliens be suspended
under the provisions of section 19(c)(2)(b) of the Immigration Act of
1917, as amended.
It is further ordered, That the order entered by the Assistant
Commissioner on March 14, 1950, be and the same is hereby withdrawn.
It is further ordered, That if during the session of the Congress at
which this case is reported, or prior to the close of the session of the
Congress next following the session at which this case is reported, the
Congress passes a concurrent resolution, stating in substance that it
favors the suspension of such deportation, the proceedings be canceled
upon the payment of the required fee and that the aliens be charged to
the quota for China.
(1) Sec. 15 of the 1924 act, as amended July 1, 1940, reads as
follows:
"The admission to the United States of an alien excepted from the
class of immigrants by clause (1), (2), (3), (4), (5), (6), or (7) of
section 3, or declared to be a nonquota immigrant by subdivision (e) of
section 4, shall be for such time and under such conditions as may be by
regulations prescribed (including, when deemed necessary for the classes
mentioned in clause (2), (3), (4), or (6) of section 3 and subdivision
(e) of section 4, the giving of bond with sufficient surety, in such sum
and containing such conditions as may be by regulations prescribed) to
insure that, at the expiration of such time or upon failure to maintain
the status under which admitted, he will depart from the United States:
Provided, That no alien who has been, or who may hereafter be, admitted
into the United States under clause (1) or (7) of section 3 as an
official of a foreign government, or as a member of the family of such
official, or as a representative of a foreign government in or to an
international organization, or an officer or employee of an
international organization, or as a member of the family of such
representative, officer, or employee, shall be required to depart from
the United States without the approval of the Secretary of State.'
Prior to the amendment, the present proviso concluding section 15 was
not then a part of the section and the opening sentence read as follows:
"The admission to the United States of an alien excepted from the
class of immigrants by clause (1) (except a government official and his
family), (2), (3), (4), (5), or (6) of section 3. * * *'
(2) Matter of D P , A-4074327 (formerly 56043/906), July 31, 1941;
Matter of G , A-1256369 (formerly 55974/884), January 27, 1941.
(3) Chung Yim v. U.S., 78 F.(2d) 43 (C.C.A. 8, 1935), cert. den., 56
S.Ct. 150. This case in substance holds that sec. 15 (1924 act) is not
self-executing but requires the promulgation of regulations before it
can affect the right of an alien to remain in this country. It also
holds that a regulation in effect when the alien entered, setting forth
conditions of entry with regard to nonimmigrants, was not invalid
because it did not make provisions for their deportation notwithstanding
a subsequent regulation promulgated after entry which provided that
nonimmigrants who failed to maintain status should be deported.
Bond -- Delivery bond, upon release in expulsion proceedings -- When breached -- Where demand for delivery made on surety after alien's departure from United States -- Administrative discretion.
Where an alien was released from the custody of the immigration
authorities on the posting of a delivery bond, conditioned upon the
alien's surrender to the immigration authorities when demanded in
connection with deportation proceedings, the delivery bond may be
considered breached when the alien was not surrendered upon demand of
the surety even though such demand was made after the alien had departed
from the country; and where the circumstances are such as do not
justify favorable administrative discretion, such bond will be declared
breached.
Discussion: On May 16, 1949, a warrant was issued for the arrest of
the alien on the charges that at the time of entry during March 1948 he
was not in possession of an immigration visa; that he did not present
an unexpired passport; that he admitted committing a crime involving
moral turpitude prior to entry, to wit: Forgery; and that he had been
convicted of a crime involving moral turpitude prior to entry, to wit:
Forgery. On June 7, 1949, he was released from custody by the Miami
office of this Service when a delivery bond in the sum of $1,000 was
posted in his behalf. On June 20, 1949, his presence in Canada was
verified when he presented himself at the Toronto, Ontario, Canada,
office of this Service. On August 5, 1949, demand was made on the
surety that the alien be delivered into the custody of the Miami office
within 10 days after receipt of notification for a hearing. The surety
advised that as the alien was in Canada it was not possible to comply
with the demand. By not surrendering the alien, the conditions of the
bond were violated.
In transmitting the case to the Central Office for determining as to
whether the bond should be declared breached, the office of the District
Director at Miami, Fla., states: "Since proper demand was not made on
surety until after alien had departed for Canada, it would appear that
the bond should be canceled (Matter of L de S A , C.O. File A-7621680,
August 17, 1949; Matter of J C R S de S A , C.O. File A-9554762, August
17, 1949).'
Although the delivery bonds were canceled in the cases cited by the
Field Office, that action was purely in exercise of administrative
discretion. From a legal standpoint, the conditions of those bonds were
violated when the aliens were not surrendered in accordance with
demands, and they might have properly been declared breached. Opinion
of General Counsel in Matter of V G , A-2890631, August 3, 1948.
However, the instant case is not one in which the exercise of favorable
administrative discretion is merited.
The record shows that on August 8, 1947, the alien had previously
been made the subject of deportation proceedings, was released under a
$1,000 delivery bond on August 25, 1947, and shortly thereafter departed
to Canada. The bond exacted was canceled.
This, then, is the second time that by leaving the country, the alien
has managed to avoid a final determination in a deportation proceedings
instituted against him. In addition, he has a criminal record which
renders the matter more aggravated. The bond will, therefore, be
declared breached.
Recommendation: It is recommended that the outstanding delivery bond
be declared breached and that appropriate steps be taken looking toward
the collection of the liquidated damages thereunder.
So ordered.
Citizenship Status of a Native of Puerto Rico (1895) -- Child born of "alien' parents there -- Opting by parents in name of child for Spanish nationality -- Such child to signify election within one year of attaining majority -- article 18 and article 19, Spanish Civil Laws of 1889 -- Acquisition of Spanish nationality by denizenship -- Article 17, Spanish Civil Laws of 1889 -- Evidence -- Doubt as to citizenship status -- Eligibility to file a declaration of intention pursuant to section 322 of the Nationality Act of 1940.
(1) A child, born in Puerto Rico (in 1895), of "alien' parents is
eligible to file a declaration of intention pursuant to section 322 of
the Nationality Act of 1940, if the evidence leaves her citizenship in
doubt.
Discussion: The question presented is whether petitioner has
established that she was born in Puerto Rico of alien parents, so as to
be eigible to file a declaration of citizenship pursuant to the
provisions of section 322 of the Nationality Act of 1940.
The record discloses that petitioner's father was born in Hamburg,
Germany, in 1859, that he arrived in Puerto Rico on December 31, 1883,
that he was engaged in the business of a merchant and also a banker
while in Puerto Rico, that he was married to subject's mother on July
14, 1888, in Puerto Rico and that he resided there until the date of his
death in July 1941. Petitioner's mother was born in Puerto Rico on 1866
of a Spanish father. Petitioner was born in San Juan, P.R., on June 28,
1895.
Petitioner has testified that her father was German consul in San
Juan during the Spanish-American War in 1899, that he was named consul
because he was one of the very few Germans living there at the time,
that she did not believe that he was the consul at the time of her birth
and that she didn't think that she was considered a Spanish subject by
virtue of her birth in Puerto Rico in 1895. The record discloses that
petitioner's father was naturalized as a United States citizen on
January 29, 1923, by the District Court of the United States for the
District of Puerto Rico at San Juan, and that petitioner's mother was
naturalized as a United States citizen on October 18, 1943, by the same
court.
In order to be eligible to the provisions of section 322, petitioner
must establish that she was born in Puerto Rico of alien parents. If
she was born in Puerto Rico of Spanish subjects, she may have a claim to
United States citizenship pursuant to the provisions of the act of April
12, 1900, and the act of March 2, 1917. It is, therefore, pertinent to
inquire into the provisions of Spanish law which were in effect at the
time of her birth.
The Spanish Civil Laws of 1889 provided in part as follows (Flournoy
and Hudson, Nationality Laws, p. 537):
Article 17. The following are Spaniards:
(1) Persons born in Spanish territory.
(2) The children of a Spanish father or Spanish mother,
although born outside Spain.
(3) Aliens who have obtained a certificate of naturalization.
(4) Aliens, who, without such certificate, have acquired a
denizenship (vecindad) in any town (pueblo) of the monarchy law of
October 2, 1877, 12 to 16.
Article 18. Children, while they remain under the parental
power (patria procestad) take the nationality of their parents.
In order that children born of alien parents in Spanish
territory may enjoy the benefits accruing to them under clause I
of Article 17, it shall be incumbent upon their parents to signify
in the manner and before the officials specified in Article 19
that they opt in the name of their children for Spanish
nationality, renouncing all other.
Article 19. The children of an alien born in the dominions of
Spain shall signify within one year after attaining their majority
or emancipation whether they desire to enjoy the rights of
Spaniards granted to them by Article 17.
The record fails to disclose that petitioner's parents signified in
any manner that they opted in the name of petitioner for Spanish
nationality or that petitioner signified within 1 year after attaining
her majority or emancipation that she desired to enjoy the rights of
Spaniards granted by article 17. In view thereof, it does not appear
that petitioner acquired Spanish nationality under the provisions of
section I of article 17. While petitioner's mother was Spanish at
birth, since she was married prior to petitioner's birth, the
nationality of petitioner's mother followed that of petitioner's father,
inasmuch as article 22 of the same Civil Laws provided that "A married
woman shares the condition and nationality of her husband.' Whether or
not petitioner acquired Spanish citizenship under the provisions of
section 2 of article 17 of the Civil Laws of 1889 would, therefore,
depend upon the nationality of her father, which will be discussed
later. There is no record of any naturalization as Spanish citizens
either by petitioner or her parents and, therefore, there was no
acquisition of Spanish nationality under the provisions of section 3,
article 17 of the Civil Laws.
Section 4 of article 17 of the Civil Laws of 1889 provides for the
acquisition of Spanish citizenship by aliens who have acquired a
denizenship (vecindad) in any town (pueblo) of the monarchy (law of
October 2, 1877, 12 to 16). However, section 4 of article 17 is shown
in House Document No. 326, 59th Congress, Second Session, page 510, as
reading as follows: "The following are Spaniards. (4) Those who,
without them, may have gained a residence in any place in the monarchy.'
The case of Tristani v. Clark (Declaratory Judgment No. 4780, District
Court of the United States for Puerto Rico, April 30, 1947, Central
Office File A-6438573), contains a history of the Spanish law relating
to the acquisition of Spanish nationality by persons born or residing in
Puerto Rico. In the decision filed by the court in that case, the court
stated that the only law dealing with the manner of acquiring
denizenship until 1916 was the law of March 8, 1716. That law provided
that the requirements which should be met by aliens to acquire vecindad
(denizenship) was as follows:
There should be considered as a denizen (vecino) in the first
place any foreigner who obtains the privileges of a native
(naturaleza); he who was born in these kingdoms; he who becomes
a convert to our Holy Catholic Faith; he who, living on his own
resources, establishes his domicile; he who applied for and is
granted denizenship (vecindad) in any town; he who marries a
woman born in these kingdoms and has his domicile herein; and if
the wife is a foreigner that marries a native, she thereby
acquires the same jurisdiction and domicile as her husband; he
who settles and buys and acquires real estate and holdings; he
who, having a profession, comes to stay and engage in that
profession; and also in the same way he who settles and engages
in mechanical employment or keeps a store in which to sell at
retail; he who has functions municipal, honorary or of any kind
that may be held by natives (naturales); he who has the enjoyment
of pastures and advantages belonging to the denizens; he who
lives ten years as a householder in these kingdoms; and likewise
in all other cases where in accordance with the written law, the
royal orders and laws, the foreigner acquires the privileges, of a
native (naturaleza) * * * and all those who have any one of the
features here expressed must be declared as included.
The German Law of June 1, 1870, sections 5, 21, which was extended to
the rest of Germany by the German Constitutional Law of April 22, 1871,
contained the following provisions of law which may be pertinent in
determining the case at bar; namely, section 5 which provided that
"Marriage with a North German confers the citizenship of the husband on
the wife' and section 21 which provided "North Germans who leave the
territory of the Confederation and reside abroad ten years
uninterruptedly lose their citizenship thereby * * *. The period is
interrupted by registration in the register of a consulate of the
Confederation * * *. Loss of citizenship incurred according to this
provision extends also to the wife and to the minor children who are
under the paternal authority, provided they are with the husband or
father' (House of Representatives Document No. 326, 59th Cong., 2d
sess., p. 328, 330).
It might be argued that petitioner's father, being a German national
at the time of his marriage to petitioner's mother in 1888 bestowed
German nationality upon her in accordance with section 5 of the German
law mentioned above and that both parents lost their German nationality
upon the completion of 10 years' residence in Puerto Rico by
petitioner's father in 1893 in accordance with the provisions of section
21 of the same law. Thereafter he acquired Spanish nationality pursuant
to the provisions of section 4 of article 17 of the Spanish Civil Laws
of 1889 by his having acquired denizenship in Puerto Rico, the mother
following his nationality pursuant to article 22 of the same Spanish
Civil Law. Therefore, at birth petitioner acquired Spanish nationality
only, pursuant to section 2 of article 17 of the same Spanish law by
being the child of a Spanish father or Spanish mother. In support of
such contention are the facts that petitioner's father established
domicile in Puerto Rico and lived on his own resources there, that he
married a woman born in the kingdom and had him domicile in Puerto Rico,
that he may have kept a store in which to sell at retail and that he
lived 10 years as a householder in Puerto Rico.
On the other hand, the record discloses that petitioner testified
that her parents never declared themselves to hold allegiance to the
Spanish Crown, that the father registered himself, his wife and
petitioner as German nationals prior to 1899 and that the father was
made German consul in 1899. It does not appear from the record when the
registration as German nationals took place and particularly whether
such registration took place between the 10-year period from 1883 to
1893. It might be argued that the father, in view of his affirmative
action in regard to German nationality, retained such nationality which
he had acquired at birth and, therefore, he did not lose his German
nationality or acquire Spanish nationality. Having retained German
nationality, he would have bestowed German nationality upon petitioner's
mother, in accordance with section 5 of the German law mentioned above.
The conclusion that petitioner's parents did not have Spanish
nationality at the time of petitioner's birth is corroborated by the
fact that the father was naturalized as a United States citizen in 1923
and the mother was naturalized on October 18, 1943. Had the parents
been deemed to have Spanish nationality on April 11, 1899, they would
have become Puerto Rican nationals on April 12, 1900, in accordance with
the provisions of the act of that date (31 Stat. 79; 48 U.S.C. 733) and
United States nationals on March 2, 1917, pursuant to the provisions of
the act of that date (39 Stat. 953; 8 U. S.C. 5) and there would have
been no need for them to become naturalized as United States citizens in
order to acquire United States citizenship. Consequently, it must be
deemed that the parents had not acquired Spanish nationality on or
before April 11, 1899.
Thus, whether or not petitioner acquired Spanish nationality on or
before April 11, 1899, is not free from doubt. Accordingly, the
question of whether petitioner acquired United States nationality,
pursuant to the acts of April 12, 1900, and March 2, 1917, is not free
from doubt. 8 C.F.R. 373.10 provides in part that "where doubt of
citizenship exists, the case shall be treated by the Service as though
the applicant were an alien.'
Since petitioner has not established that she was a Spanish national
at the time of the acquisition of Puerto Rico by the United States, she
is unable to establish that she acquired United States citizenship
pursuant to the provisions of the act of April 12, 1900, and March 2,
1917, or any other act. The evidence of record establishes that
petitioner was born in Puerto Rico of alien parents and she is,
therefore, eligible to file a declaration of citizenship pursuant to the
provisions of section 322 of the Nationality Act of 1940.
The case, however, is not as yet ready for presentation to the court,
inasmuch as no recommendation has been made by the field office in
regard to petitioner's attachment to the principles of the Constitution
and favorable disposition to the good order and happiness of the United
States. The facts, findings, and conclusions contained in the
memorandum of the District Director are hereby adopted.
It is ordered, That a copy of this memorandum be forwarded to the
field office so that appropriate action may be taken in accordance with
the foregoing.
Crime involving moral turpitude -- Bodily injury in violation of section 223(a) of the German Criminal Code (1948).
Bodily injury in 1948 in violation of section 223(a) of the German Criminal Code by assault with a knife (as in this case) is not equivalent to assault with a dangerous weapon in Anglo-American law (malice is not a characteristic of the crime), but is in fact simple assault and hence does not involve moral turpitude.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917 -- Admits commission and was convicted of a crime, to
wit: Assault with a weapon (knife).
Discussion: This case is before us on appeal from a decision of the
Assistant Commissioner dated October 6, 1949, directing that the
excluding decision of the board of special inquiry be affirmed.
Appellant, a 26-year-old displaced person who is a native and citizen of
Lithuania, seeks admission for permanent residence. Appellant is single
and is destined to his cousin in Chicago, who has been living in the
United States since about 1933.
Appellant was arraigned before the United States Military Government
Court (11th Judicial District) at Kitzingen, Germany, for causing bodily
harm to a German citizen by stabbing him with a knife; he pleaded not
guilty to this charge of fighting with a German, but was found guilty
and sentenced to 10 months in prison. He served 4 months of his
sentence, the remainder being suspended for good behavior. During the
hearing, appellant was asked to comment upon this record of conviction.
He testified that he was going home alone late on the night of June 28,
1948, from a dance and was attacked by three Germans. Since he was
alone and in a strange country, he had no choice but to defend himself;
so he used his pocketknife with a blade approximately 3 inches long as a
defense. Appellant stated that the reason he was thus attacked was that
during the evening he had danced with a girl whom one of the Germans
liked. (This altercation took place at Selingerstadt, Germany. It will
be noted that since appellant was a displaced person, his position was
at all times a precarious one for he was regarded by the Germans as an
intruder in their midst.)
Pertinent sections of the German Criminal Code provide as follows:
Bodily Injury.
Light Bodily Injury. -- Leichte Koerperverletzung.
Section 223. -- Whoever intentionally /1/ illtreats
(misshandelt) the body of another or injuries the health of
another shall be punished for bodily injury by imprisonment not to
exceed three years or by fine.
If the act is committed against the relative in an ascending
line imprisonment for not less than one month shall be imposed.
Dangerous Bodily Injury. -- Gefaehrliche Koerperverletzung
Section 223(a).
If bodily injury is committed by means of a weapon, and in
particular a knife or other dangerous instrument or by means of a
treacherous surprise (hinterlistringr ueberfall) or by several
persons acting together (gemeinschaftlich) or by ill treatment
dangerous to life, the punishment shall be imprisonment for not
less than two months.
(Translation supplied by the District Attorney of the United
States Military Government Courts for Germany, First Judicial
District.)
Section 223 defines the offense of light bodily injury as an act in
which the least amount of bodily injury occurs. The sections of the
Code progress from this minimum through the more aggravated forms of
bodily injury; section 224 deals with serious bodily injury, while
section 225 states that a specific intent to inflict serious injuries is
necessary for conviction under section 224. Section 223(a) is based on
the definition of the offense in section 223 and merely provides for a
minimum punishment of 2 months within the framework of the maximum
possible sentence of 3 years, which is set out in section 223 proper.
Simple assault has generally been held as not necessarily involving
moral turpitude, for it may be committed without the evil intent or
depraved motive associated with moral turpitude. For similar reasons,
aggravated assault where the use of a deadly or dangerous weapon is not
an element is not regarded as involving moral turpitude (U.S. ex rel.
Zaffarano v. Corsi, 63 F.(2d) 757 (C.C.A. 2, 1933); U.S. ex rel.
Griffo v. McCandless, 28 F.(2d) 287 (E.D. Pa., 1928); U.S. ex rel.
Morlacci v. Smith, 8 F.(2d) 663 (W.D. N.Y., 1925); Ciambelli ex rel.
Maranci v. Johnston, 12 F.(2d) 465 (D. Mass. 1926)). Conversely,
assaults with intent to murder (Clark v. Orabona, 59 F.(2d) 204 (E.D.
Pa., 1930)), to kill (U.S. ex rel. Shladzien v. Warden, 45 F.(2d) 204,
E.D. Pa., 1930), and to rob (U.S. ex rel. Rizzio v. Kenney, 50 F.(2d)
418 (N.D. Conn., 1931)), have been held to indicate the depraved motive
which is requisite for moral turpitude. In order for statutory crime to
involve moral turpitude, a specific intent must accompany the act
(Weedin v. Yamada, 4 F.(2d) 455 (C.C.A., 9, 1925)). Such is not the
case in the German statute before us, for the offense defined in section
223(a) is merely mala prohibita and not inherently base.
The crime involved in the instant case is not equivalent to assault
with a dangerous weapon in Anglo-American law. Malice is not a
characteristic of the crime since one may be convicted even though his
acts were the result of innocent motivations. For example: The
accidental hitting of another in the course of ordinary activity, by
chance or in fun; the inadvertent striking by one who is unwittingly
caught alone in an affray; the instinctive striking of another is
self-protection, when the victim of a surprise attack. The latter
happening describes the situation before us. Therefore, we conclude
that the crime involved is in fact simple assault and hence does not
involve moral turpitude (Matter of M S , A-6450220 (April 16, 1947);
Matter of E , 56065/307 (July 28, 1943)). /2/ For this reason, the
ground for appellant's exclusion is not sustained.
Order: It is hereby ordered, That the alien be admitted to the
United States for permanent residence.
(1) The use of the German equivalent of "intentionally' is employed
here merely to differentiate this offense from the one defined in sec.
230 -- Bodily Injury Resulting from Negligence.
(2) See also: Matter of O , A-5912688 (March 29, 1948) (3, I. & N.
Dec. 193); Matter of G R , A-4569802 (Atty. Gen. May 29, 1947) (2, I.
& N. Dec. 733).
Citizenship -- Acquisition after birth abroad (1930) by naturalization of father (1944) before child's eighteenth birthday, the mother having been a United States citizen at and since the child's birth, and the child having taken up permanent residence here before its eighteenth birthday (1937) -- Section 313 of the Nationality Act of 1940.
Citizenship -- Expatriation by oath of allegiance -- Section 2, act of March 2, 1907 -- Oath taken by minor (before January 13, 1941) -- Affirmation upon reaching majority.
(1) A child born abroad in 1930, who took up permanent residence in the United States in 1937 (when under 18 years of age), did not acquire United States citizenship under the provisions of section 313 of the Nationality Act of 1940 through the naturalization of his father here in 1944, where the evidence fails to establish that his mother continued to be a United States citizen from the time of the child's birth up to when the father became naturalized (1944); nor does the evidence establish that the mother required United States citizenship so that both parents were United States citizens after the child's entry in 1937 and before he reached his eighteenth birthday in 1948 (sec. 314, Nationality Act of 1940).
(2) Before January 13, 1941, a minor could not expatriate himself during minority and being under a disability was unable to take a binding oath of allegiance, but under certain circumstances such oath may be confirmed after the person attains his majority.
(3) Where a United States citizen, while a minor, takes an oath of
allegiance to a foreign state and accepts a teaching post there pursuant
to a contract which by its terms will not expire until a date occurring
during the subject's majority, the mere fulfillment of such agreement
does not amount to an affirmation of the oath inasmuch as the party
involved is merely complying with contractual obligations assumed during
minority, which cannot be terminated by reasonable and approximate
means; but where the teaching of school there continues voluntarily
after attaining majority, there being no compulsion by any contractual
relationship, this constituted a course of conduct having a direct
relationship to the purpose for which the oath of allegiance was taken
originally and amounted to an affirmation of such oath, thereby
effecting expatriation.
Discussion: The above-named subject claims that he derived United
States citizenship on February 14, 1944, through the naturalization of
his father, L J W , by the United States District Court at Seattle,
Wash., on February 14, 1944, at which time subject had not reached his
eighteenth birthday and had resided permanently in the United States
since March 9, 1937, his mother A M W , being a citizen of the United
States at the time of subject's birth and never thereafter ceasing to be
a citizen of the United States.
The question presented is whether subject's mother, who was born in
the United States, lost her United States nationality, in view of her
taking an oath of allegiance to Canada while a minor and possible
confirmation of such oath by her conduct upon attaining majority.
The record discloses that subject's mother, A M W , nee G , was born
in McDonald, Pa., on October 7, 1908. In November 1908, she was taken
to Canada by her parents. On December 15, 1925, while she was in
attendance at the Provincial Normal School (Teacher Training College),
in Canada she took an oath of allegiance before a Saskatchewan
Commissioner for Oaths. The record discloses that the oath taken was an
unqualified oath of allegiance. Thereafter she taught school in the
following Districts as is shown below:
1926 -- Carlsbad School District #3347 from March 16, 1926,
until December 23, 1926.
1927 -- Red Rock School District #1314 from February 14, 1927,
until December 23, 1927.
1928 -- Pan Muir School District #3292 from August 6, 1928,
until December 21, 1928.
1929 -- Pan Muir School District #3292 from February 11, 1929,
until December 20, 1929.
1930 -- Pan Muir School District #3292 from February 10, 1930,
until June 30, 1930.
1931 -- Scott School District #2255, no record of length of
substitute teaching period.
The Director of Teacher Training of the Department of Education,
Province of Saskatchewan has alleged in a letter dated January 11, 1950,
that subject's mother would have had to sign a new contract each time
she changed her school. He further alleged that there is a record of
agreements for 1926 with the Carlsbad School District, for 1927 with the
Red Rock School District, for 1928 with the Pan Muir School District and
that there is no record of an agreement for the Scott School District.
Subject's mother has testified that she taught school for about 4 years
from 1926 to about 1929, that she believed that she was teaching school
when she became 21 years of age, that she could not recall about taking
any oath but that she had to sign contracts for teaching school.
Subject's parents were married on June 19, 1930, in Canada, and
subject was born on September 27, 1930, in Canada. His parents have
testified that they are the natural parents of subject. Subject and his
parents were lawfully admitted to the United States for permanent
residence on March 9, 1937. Subject's mother was admitted as an
immigrant pursuant to the provisions of section 4(c) of the Immigration
Act of 1924 and it is stated in her immigration visa that she was a
Canadian through her father's naturalization. The evidence of record,
however, discloses that her father, J G , was naturalized as a Canadian
citizen on April 30, 1930, at which time subject's mother had already
attained her majority.
Subject's father, L J W , was naturalized as a United States citizen
by the United States District Court at Seattle, Wash., on February 14,
1944, receiving Certificate of Naturalization No. 5394886.
The only manner in which subject could derive United States
citizenship is under the provisions of section 313 of the Nationality
Act of 1940. In order to establish his claim to citizenship, he must
establish that his mother was a United States citizen at the time of his
entry into the United States on March 9, 1937, or at any time thereafter
until he attained his eighteenth birthday on September 27, 1948.
Therefore the sole issue involved is whether or not subject's mother was
a United States citizen during the period mentioned.
It is well established that prior to the effective date of the
Nationality Act, a minor could not expatriate himself during minority
and being under a disability is unable to take a binding oath of
allegiance (U.S. ex rel. Baglivo v. Day, 28 F.(2d) 44). However, it is
also well settled that an oath of allegiance taken during minority may
under certain circumstances be confirmed by the person involved after
attaining majority and thereby result in expatriation. In the instant
case, with the exception of the continuation by subject's mother in her
teaching position in Canada up to and including 1931, there is nothing
in the record to indicate that, after attaining majority on October 7,
1929, subject's mother committed any voluntary overt act which could be
construed as confirming the oath of allegiance which she took on
December 15, 1925, at the age of 17 years. Whether continuing,
subsequent to reaching majority, to teach school in a foreign country is
an affirmation of an oath of allegiance taken while a minor in order to
qualify for such position, is wholly dependent upon the particular
circumstances in each individual's case (Matter of H L , 23/83641, C.
O., October 30, 1942).
Where a United States citizen, while a minor, takes an oath of
allegiance to a foreign state and accepts a teaching post pursuant to a
contract which by its terms will not expire until a date occurring
during the subject's majority, it has been held that the fulfillment of
such agreement alone does not amount to an affirmation of the oath
inasmuch as the party involved is merely complying with contractual
obligations assumed during minority (Matter of E S O , A-6003057,
January 10, 1945). It would appear from all of the foregoing that a
determining factor in such cases is whether the individual involved,
after attaining majority, has a reasonable and approximate means of
terminating his teaching position. (In re: M J S 21 A-1260, October 3,
1947; In re: R (G ) G , 1306-1354, May 27, 1947.)
The record discloses that subject's mother signed a new contract in
1928 in connection with her teaching in the Pan Muir School District.
She taught in this school district over a period of 3 years. The
last period of teaching in this school district was from February 10,
1930, until June 30, 1930, during which period she had already attained
her majority. While it does not appear that an agreement was made for
teaching subsequent to 1930, it does appear that she taught in the Scott
School District in 1931, at which time she had already attained her
majority. Thus it appears that after attaining her majority, subject's
mother taught for a period of 6 months in the Pan Muir School District
in 1930 and taught for a period of time in 1931 in the Scott School
District. While it might be said that her teaching in the Pan Muir
School District during 1930 was in continuance of her contractual
obligation which she assumed during her minority, it does not appear
that she was compelled by any contractual relationship to teach school
in the Scott School District in 1931. Accordingly, her voluntary
continuance of her teaching position, after attaining her majority,
constituted a course of conduct having a direct relationship to the
purpose for which the oath of allegiance was originally taken on
December 15, 1925, and amounted to an affirmation of the oath of
allegiance. It is, therefore, concluded that subject's mother, upon
attaining her majority, affirmed the oath of allegiance taken during her
minority and thereby lost her United States nationality pursuant to the
provisions of section 2 of the act of March 2, 1907.
Subject, having failed to establish that his mother was a United
States citizen at the time of his entry into the United States on March
9, 1937, or at any time thereafter until he attained his 18th birthday,
has failed to establish that he derived United States citizenship. He
must, therefore, be deemed not to be a citizen of the United States.
It is ordered, That the application of L C J W for a certificate of
citizenship be denied.
Crime involving moral turpitude -- Putting false money into circulation in violation of sections 146 and 147 of the German Criminal Code.
The offense of putting false money into circulation in violation of Sections 146 and 147 of the German Criminal Code involves moral turpitude (conviction by United States Military Court, /*/ Munich, Germany, August 11, 1949)
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917 -- Convicted crime involving moral turpitude, to wit:
Putting false money into circulation.
Discussion: Upon consideration of the entire record, the findings of
fact and conclusions of law entered by the board of special inquiry
October 24, 1949, and personally served upon appellant and his
representative overseas are hereby adopted with the following
modifications:
Finding of Fact No. 5 is deleted and Finding of Fact No. 6 is
renumbered Finding of Fact No. 5 and amended to read as follows:
(5) That you were convicted by the United States Military
Government Court for Germany, District Court for the Eighth
Judicial District, at Munich, Germany, August 11, 1949, on a plea
of not guilty to violation of Ordinance No. 1, Article 2, Section
27 (Possession of any currency, having reason to believe it to be
false or altered) and violation of Sections 146, 147 of the German
Criminal Code (Putting false money into circulation).
Appellant's delay in reporting to the board of special inquiry for a
hearing to determine his admissibility into the United States, because
he was in jail from June 5, 1949, until September 26, 1949, is not
relevant to the issue. Appellant was not convicted on a plea of guilty
and it is not otherwise shown by the record that he admits the
commission of the offenses for which he was convicted although he does
admit that he was so convicted.
Representative overseas excepts to the excluding order (1) on the
ground that appellant was incarcerated an unduly length of time before
being brought to trial on the charges for which he was convicted; (2)
that appellant at the trial was not represented by an attorney of his
own choosing; and (3) that the evidence upon which appellant was
convicted does not warran the conclusion that the offense involves moral
turpitude.
The first two issues raised by counsel are not relevant to the
present issue; that is, whether or not this appellant is admissible to
the United States. For reasons hereinafter shown the third argument of
counsel is untenable.
This record relates to a 25-year-old unmarried male, native and
citizen of Poland, possibly now stateless, whose name was sent up as a
displaced person, June 2, 1949, on the nominal roll from Munich,
Germany. He was held for a board of special inquiry at Camp Grohn,
Bremen, Germany, and on October 24, 1949, he was excluded from admission
on the ground stated above. Appellant is remaining in the displaced
persons camp pending decision on appeal.
Polish quota immigration visa was issued to this appellant at Munich,
Germany, May 26, 1949, under section 3(a) 6(a) of the Displaced Persons
Act approved June 25, 1948 (P.L. 774). The Department of State has
waived passport requirements.
Exhibit A shows that this appellant was brought to trial before a
United States Military Government Court for Germany (District Court for
the Eighth Judicial District) at Munich, August 11, 1949, on two
charges: (1) Violation of Ordinance No. 1, article 2, section 27
(Possession of any currency, having reason to believe it to be false or
altered) and (2) Violation of sections 146, 147 of the German Criminal
Code (Putting false money into circulation).
The bill of complaint or indictment alleged that this appellant gave
a United States banknote which had been "raised' from $1 to $50, to
another with instruction to the latter to sell it. Appellant pleaded
"not guilty.' At the trial, however, appellant admitted finding the
banknote shortly after military police had raided a place in
Moehlstrasse (Moehl Street) Munich, Germany, and "knowing good money, as
well as bad money, was alleged to have been thrown away during the raid'
(presumably in an excited attempt to destroy evidence) he took the
banknote to a jeweler for appraisal. The latter could not recall having
seen a picture of George Washington on a $50 banknote but otherwise
thought the paper on which the banknote was printed was genuine. It was
quite apparent to the Court that the banknote had been "raised' and
since the alteration was so poorly done, concluded that any reasonably
experienced person could see that the banknote had been altered and
found this appellant guilty of count 1 of the indictment; that is, for
possession of currency, having reason to believe it to be false or that
it had been altered. The person to whom this appellant is alleged to
have given this banknote with instruction to sell it appeared at the
trial against this appellant as a witness for the Government. At the
trial this appellant denied the allegation in count 2 of the indictment
claiming that he gave the banknote to the witness because he (appellant)
was about to leave for America. Appellant having admitted giving the
banknote to the witness and since it did not appear to the Court that
this appellant could afford to "give' so large a sum, and since the
purpose for which the banknote is "passed' under the applicable German
statute is not material, the trial court also found this appellant
guilty of the second count of the indictment, that is, putting false
money into circulation in violation of sections 146, 147 of the German
Criminal Code. Sentence of 4 months in jail on both counts to begin as
of June 3, 1949, was to run concurrently.
Major and minor crimes involving currency in Germany are covered by
chapter 8, sections 146 to 152 inclusive, of the German Criminal Code.
Sections 146-147, of the German Criminal Code, violations of which this
appellant was specifically charged, relate to counterfeiting and false
altering of money (sec. 146) and putting forged or altered money into
circulation (sec. 147).
Section 146 of the German Criminal Code reads as follows:
Whoever counterfeits any German or foreign coin or paper money
with the intention of using the same as genuine or otherwise
putting it into circulation, and whoever with the like intention
gives to genuine money, by alteration, the appearance of money of
a higher value or to money withdrawn from circulation the
appearance of money still current, shall be punished by
confinement in a penitentiary for not less than two years; police
surveillance may also be imposed. If there are extenuating
circumstances, the punishment shall be imprisonment.
Section 147 of the German Criminal Code reads as follows:
Whoever counterfeits or falsely alters money without the
intention of putting it into circulation as genuine but thereafter
does so, as well as whoever procures counterfeit or falsely
altered money and puts it into circulation, or imports counterfeit
or falsely altered money from abroad for the purpose of passing
it, shall be punished by a like penalty.
The gist of the offenses for which this appellant was convicted is
the possession and "passing' of "altered' currency knowing or having
reason to believe that the currency was false or altered. Possessing
and passing counterfeit governmental obligations knowing the same to be
counterfeit have been held to be crimes involving moral turpitude. U.
S. ex rel. Volpe v. Smith, 289 U.S. 422 (1933); U.S. ex rel. Allessio
v. Day, 42 F.(2d) 217 (C.C.A. 2, 1930); U.S. ex rel. Guarino v. Uhl, 2
F.Supp. 135 (1939), reversed on other grounds, 107 F.(2d) 399 (C.C.A.
2, 1939); Matter of K , A-5526604, B.I.A. (July 5, 1941). It is also a
criminal offense to materially alter or debase, with intent to defraud a
governmental obligation or security. U.S. v. Sacks, 257 U.S. 37
(1921); U.S. v. Janowitz, et al., 257 U.S. 42 (1921), 42 S.Ct. 40.
"Raising,' either by chemicals or the "scratch process' the denomination
of a governmental obligation is an alteration or debasement. Foster v.
U.S., 76 F.(2d) 183 (C.C.A. 10, 1935):
The "passing' of an obligation altered by another knowing the same to
have been so altered has been held to be a crime involving moral
turpitude. Matter of C , 56010/916 Board of Review (July 17, 1939).
On the basis of the evidence the conclusion is justified that this
appellant is inadmissible to the United States on the criminal ground
urged above.
This appellant has no residence in the United States upon which to
invoke discretionary relief.
Recommendation: It is recommended that the excluding decision of the
Board of Special Inquiry be affirmed.
(*) Editor's note. -- That the B.I.A. has no authority to reverse
such a court's findings was noted in unreported Matter of K , A-7427459,
B.I.A. 9-8-50. To like effect as the language used by the B.I.A. in the
above Interim Decision in the penultimate paragraph of its decision of
5-3-50, is the language in unreported Matter of D , A-7394992, B.I.A.
7-24-50. Theft in violation of Military Government Ordinance No. 1,
Article 1, Section 19 (conviction by military government court April
1946 for stealing property of the Allied Forces was held to involve
moral turpitude (unreported Matter of S , A-7356187, C.O. December 30,
1949, B.I.A. February 10, 1950.))
Discussion: The appellant, a native and citizen of Poland, 26 years
of age, male, single, applied for admission to the United States as a
displaced person under the provisions of Public Law 774. He was
accorded a hearing before a board of special inquiry held at Bremen,
Germany, on September 26 and October 24, 1949. The appellant was in
possession of a Polish quota immigration visa issued by the United
States vice consul at Munich, Germany, on May 26, 1949. It is noted on
his visa that the passport requirements were waived by the Secretary of
State on September 28, 1948. The board of special inquiry found the
appellant inadmissible to the United States on the ground designated
above and on February 28, 1950, the excluding decision was affirmed by
the Assistant Commissioner. The case is now before us on appeal.
The record discloses that the appellant on August 11, 1949, was tried
and convicted in the District Court, 8th Judicial District (U.S.
Military Court for Germany) at Munich, Germany. He was convicted of
violating sections 146 and 147 of the German Criminal Code (putting
false money into circulation) and violation of Ordinance No. 1, article
2, section 27 (Possession of any currency having reason to believe it to
be false or altered). The above offenses were committed on or about May
30, 1949, near Munich, Germany. The appellant was sentenced to
imprisonment for a term of 4 months on each count, said sentences to run
concurrently and to begin as of June 3, 1949. The remaining facts in
this case have been adequately covered by the Assistant Commissioner in
his order of February 28, 1950.
Whether the crime of violating sections 146 and 147 of the German
Criminal Code, committed abroad, involves moral turpitude under the
immigration laws is to be determined by standards prevailing in this
country (39 Op.Atty.Gen. 95). After a careful study of the authorities
cited by the Assistant Commissioner in his order of February 28, 1950,
we are in agreement with the conclusion reached by him that the crime of
putting false money into circulation is one that involves moral
turpitude.
There is no basis for counsel's contention that this Board is not
bound by the record in the instant case because of the fact that the
appellant was not convicted by a civil court but by a United States
Military Court. The courts in the United States zone of occupied
Germany were established under the authority of the United States
Military Government for Germany and we are bound by the decisions of the
above courts just as we are bound by the decisions rendered by the
courts situated in the United States. In any event, this Board cannot
go behind the record of conviction of a crime for the purpose of
reviewing the evidence and rendering an independent judgment on the
guilt or innocence of the alien involved. U.S. ex rel. Zaffarano v.
Corsi, 63 F.(2d) 757.
For the reasons set forth above, we must affirm the decision entered
by the Assistant Commissioner on February 28, 1950. The appeal will be
dismissed.
Order: It is ordered that the appeal be dismissed.
"Neutral alien,' claiming exemption from service in the United States Armed Forces -- Ineligibility to United States citizenship -- Section 3(a) of the Selective Training and Service Act of 1940 (as amended) -- Whether alien here in legal status of nonimmigrant is "residing' here within meaning of above act and regulations thereunder.
A neutral alien (Lebanon citizen), who came here as a visitor for business in 1939 and received extensions of stay covering the period of time he remained here (he departed September 22, 1945), filed DSS Form 301 (application for relief from military service here) on November 4, 1942. Under section 3(a) of the Selective Training and Service Act of 1940 (as amended), and applicable regulations thereunder (see Executive Order 8545 of September 23, 1940) (F.R. 3786, September 25, 1940) he was found to be a "resident' within the meaning thereof, when he filed DSS Form 301 on November 4, 1942; consequently he was deemed to be inelligible to citizenship thereafter. (The Supreme Court decision of December 11, 1950, in McGrath v. Kristensen, 340 U.S. 162, was discussed.)
CHARGE:
Warrant: Act of 1924 -- Remained longer -- Visitor.
Discussion: Upon consideration of the entire record, the findings of
fact and conclusions of law proposed by the Presiding Inspector and
served upon the alien's attorney on November 15, 1949, are hereby
adopted. The alien's attorney took exception as to the proposed
conclusion of law as to discretionary relief and the proposed order of
deportation.
The record relates to a 34-year-old married male, who last entered
the United States on September 7, 1946, at the port of New York, N.Y.,
as a visitor for 6 months. He made application for extension of his
temporary stay which was denied and he was informed that he should
effect his departure from the United States on or before September 3,
1947. He first entered the United States on August 18, 1939, as a
visitor and received extensions of his temporary stay until January 1,
1946. He departed from the United States on September 22, 1945.
The record discloses that the respondent was legally married to a
native-born United States citizen on October 11, 1946. They have no
children. According to the record the respondent has been in business
for himself as an exporter. The respondent's wife has been employed as
his secretary earning $45 a week since the latter part of May 1949 and
prior thereto she was earning $55 a week.
The respondent's wife filed a petition for the issuance of an
immigration visa in his behalf. The petition was denied for the reason
that on November 4, 1942, the respondent filed an application for an
exemption from military service as provided for under section 3(a) of
the Selective Training and Service Act of 1940, as a citizen of Lebanon,
Syria, which was then regarded as a neutral country. The filing of this
application for exemption from military service made the respondent
ineligible for United States citizenship. He was, therefore,
inadmissible to this country for permanent residence under section 13(c)
of the Immigration Act of 1924. Section 19(c)(2) of the Immigration Act
of 1917, as amended, which authorizes the Attorney General to suspend
deportation, provides in part that such suspension may take place if the
deportable alien is not racially inadmissible or ineligible to
naturalization in the United States * * *.
Since, by the express provisions of section 3(a) of the Selective
Training and Service Act, one who has filed DSS Form 301 is ineligible
to citizenship and naturalization, it follows that suspension of
deportation will not be permitted. Accordingly, his application for
suspension of deportation will be denied.
Recommendation: It is recommended that application for suspension of
deportation be denied.
It is further recommended, That the alien be deported to Lebanon, at
Government expense, on the charge stated in the warrant of arrest.
Discussion: On February 6, 1950, the Assistant Commissioner entered
an order directing the subject alien's deportation on the above-stated
charge and denied his application for suspension of deportation. The
case came before us on appeal, and on April 7, 1950, we ordered action
deferred pending determination by the Supreme Court on a petition for
certiorari in the case of Kristensen v. McGrath, 179 F.(2d) 796
(December 19, 1949). The case is now before us for further action.
Decision was entered by the Supreme Court in the Kristensen case
(supra), on December 11, 1950, 340 U.S. 162.
The respondent is 36 years of age, a native and citizen of Lebanon,
married, male. He first arrived in this country on August 18, 1939, and
was admitted for 60 days as a visitor. He was granted several
extensions of stay, the last of which expired January 1, 1946. He
voluntarily departed from the United States on September 22, 1945. The
respondent last entered the United States on September 7, 1946, as a
passenger on the S. S. Athos II and was admitted as a temporary visitor
for 6 months. He was denied extensions of temporary stay. A warrant
was issued for his arrest in the present proceedings on June 24, 1948,
and hearings were held on July 19, 1949.
The respondent was married on October 11, 1946, to R G D , a citizen
of the United States. The record satisfactorily establishes the good
moral character of respondent. He has no criminal record; and
character investigations conducted in 1949 are favorable to him. When
the case was last before us, respondent's wife was employed by him at a
weekly salary of $45. No finding was made by the examining officer as
to whether the deportation of the respondent would result in serious
economic detriment to his wife.
On November 4, 1942, when respondent was in the United States as a
temporary visitor, he filed an application for exemption from military
service under section 3(a) of the Selective Training and Service Act of
1940, as a citizen of Lebanon, Syria, which, at that time, was regarded
as a neutral country. The Service on February 6, 1950, denied the
respondent's application for suspension of deportation for the reason
that by filing DSS Form 301 the respondent was ineligible to United
States citizenship and naturalization, and consequently suspension of
his deportation could not be granted. This Board, on February 20, 1947,
affirmed a decision of the Commissioner denying a petition of
respondent's wife for issuance of an immigration visa in his behalf for
the reason that respondent had applied for exemption from military
service, and was therefore inadmissible for permanent residence.
Upon consideration in light of a decision of the Supreme Court of
December 11, 1950, in McGrath v. Kristensen, it is our conclusion that
respondent is not now within a category of those ineligible for
citizenship. From the time of his entry in 1939 until his departure in
1945 respondent was in the status of a bona fide visitor and he left the
country in accordance with the terms of his temporary admission. As the
Supreme Court has read the Selective Training and Service Act of 1940,
the respondent was not a "resident' of the United States when he applied
for relief from military service. The respondent was in the country on
a valid, legal status, recognized by the Government as such. Since he
was not "residing' in the country, he was not liable for military
service; and his application for relief from such service was of no
effect.
Since it is concluded that respondent is not ineligible for
citizenship, the next question for consideration is whether he should be
granted discretionary relief. Application has been made for suspension
of deportation or, in the alternative, for voluntary departure and
preexamination. On the record now before us, we feel the facts justify
granting the latter form of relief. The respondent's wife is at liberty
to file a petition for an immigration visa in behalf of her husband.
However, the action in granting voluntary departure and preexamination
is without prejudice to further consideration upon motion by counsel for
suspension of deportation.
Order: It is ordered that the outstanding order and warrant of
deportation be withdrawn.
It is further ordered, That an order of deportation be not entered at
this time but that the alien be required to depart from the United
States, without expense to the Government, to any country of his choice
within 6 months after notification of decision, conditioned upon
arrangements being made with the local immigration office for
verification of departure.
It is further ordered, That preexamination be and the same is hereby
authorized.
Discussion: The respondent is 36 years of age, a native and citizen
of Lebanon. He first entered the United States on August 18, 1939, was
admitted as a visitor for 60 days, and then was granted several
extensions of stay, the last of which expired January 1, 1946, but
before such expiration date he voluntarily departed from the United
States on September 22, 1945.
On November 4, 1942, he filed an application for exemption from
military service under section 3(a) of the Selective Training and
Service Act of 1940 as a citizen of Lebanon, Syria, which at that time
was regarded as a neutral country.
The Board of Immigration Appeals on April 6, 1951, stated the
following:
Upon consideration in light of a decision of the Supreme Court
of December 11, 1950, in McGrath v. Kristensen, it is our
conclusion that respondent is not now within a category of those
ineligible for citizenship. From the time of his entry in 1939
until his departure in 1945 respondent was in the status of a bona
fide visitor and he left the country in accordance with the terms
of his temporary admission. As the Supreme Court has read the
Selective Training and Service Act of 1940, the respondent was not
a "resident' of the United States when he applied for relief from
military service. The respondent was in the country on a valid,
legal status, recognized by the government as such. Since he was
not "residing' in the country, he was not liable for military
service; and his application for relief from such service was of
no effect.
This Service takes issue with the conclusion reached by the Board of
Immigration Appeals in the above-quoted paragraph.
It is to be noted that the respondent in this case filed as a neutral
alien on November 4, 1942. The Supreme Court in the Kristensen case
(supra), was considering a person who had applied for similar relief on
March 30, 1942. In the Kristensen case, under the regulations which
obtained on March 30, 1942, the Supreme Court found that Kristensen did
not come within the phrase "male person residing in the United States'
and reached the conclusion in that case that Kristensen was not liable
for military service in the United States when he applied for relief
from such service as a neutral alien on March 30, 1942.
However, the regulations pertinent to the discussion in the present
case wherein the neutral alien had applied for relief from military
service on November 4, 1942, required a different determination in the
present case as distinguished from the Kristensen case for under 32 C.
F.R. 611.13 effective February 7, 1942 (7 F.R. 855), the respondent in
this case had until May 17, 1942, an opportunity to decide whether he
wished to leave the United States or seek exemption from United States
military service. Since he did not leave the country by May 16, 1942,
but rather stayed on until 1945, and actually claimed exemption from
military service as a neutral alien on November 4, 1942, it must be
concluded that on November 4, 1942, he was liable for military service
as a male person residing in the United States within the meaning of the
pertinent regulations. Accordingly, it is concluded that this
nondeclarent alien, by executing his application for relief from
military service on November 4, 1942, rendered himself ineligible for
citizenship thereby. In view of this conclusion this Service holds that
the alien is not entitled to suspension of deportation.
It has been noted in the decision of the Board of Immigration Appeals
of April 17, 1951, in the Matter of K , A-9623678, that the respective
provisions of the pertinent regulations under 32 C.F.R. 611.3, 611.21,
and 611.13, with their pertinent respective amendments were discussed in
connection with a filing of an application for relief from military
service on February 6, 1943, by a Finnish neutral. The Board in that
case held that the alien had until April 1, 1943, before he became
liable for military service here and that his action in applying for
relief from a nonexistent duty on February 6, 1942, did not create a bar
to naturalization. In the K case, the alien arrived in the United
States on January 1, 1943, and applying the pertinent regulations with
regard to residence, the Board found that he had until April 1, 1943,
before he became liable for military service. In the present case, if
the pertinent regulations were applied as in the K case (supra), it
would follow that the respondent's status was that of a male person
residing in the United States and as previously stated he was liable for
military service when he applied for relief from such service as a
neutral alien on November 4, 1942.
In view of the foregoing it is urged that the Board of Immigration
Appeals reconsider its conclusion reached in the present case on April
6, 1951.
Motion is hereby made, That the Board of Immigration Appeals
reconsider and withdraw its order of April 6, 1951, and that it enter an
order dismissing the alien's appeal from the order of this Service dated
February 6, 1950.
It is further moved, That in the event the Board of Immigration
Appeals does not grant the foregoing motion, it refer the case to the
Attorney General for review pursuant to the provisions of 8 C.F.R.
90.5(c).
Discussion: This is a motion filed pursuant to 8 C.F.R. 90.11(b)
wherein the Commissioner urges reconsideration and withdrawal of an
order entered by this Board on April 6, 1951, granting the respondent
herein the privileges of voluntary departure and preexamination and
withdrawing the outstanding order and warrant of deportation. The
Commissioner in the alternative urges the referral of this Board's
decision to the Attorney General for review pursuant to 8 C.F.R. 90.12(
c) in the event the motion is denied.
The facts of the case are fully stated in our opinion of April 6,
1951. Briefly they relate to a native and citizen of Lebanon, male,
married, 36 years of age who originally arrived in this country on
August 18, 1939, and was admitted for a period of 60 days as a visitor
for business. He was granted several extensions of stay the last of
which expired January 1, 1946. He voluntarily departed from the United
States on September 22, 1945. The respondent last entered the United
States on September 7, 1946, and was admitted as a temporary visitor for
6 months. Thereafter he was denied extensions of temporary stay. The
respondent married a citizen of the United States on October 11, 1946.
A warrant was issued for his arrest in the present proceedings on June
24, 1948, and hearings were held on July 19, 1949.
The Commissioner takes issue with the conclusions reached by this
Board in our opinion of April 6, 1951, wherein we relied upon the
decision of the Supreme Court in McGrath v. Kristensen (95 L.Ed. 165, 71
S.Ct. 224, December 11, 1950) to find that the respondent did not come
within the category of those ineligible to citizenship as that term is
used in sections 13(c) and 28(c) of the Immigration Act of 1924, as
amended, notwithstanding the fact that on November 4, 1942, he filed an
application for relief from military service (DSS Form 301) under
section 3(a) of the Selective Training and Service Act of 1940, as
amended. We reasoned as follows:
From the time of his entry in 1939 until his departure in 1945
respondent was in the status of a visitor for business and he left
the country in accordance with the terms of his temporary
admission. As the Supreme Court has read the Selective Training
and Service Act of 1940, the respondent was not a "resident' of
the United States when he applied for relief from military
service. The respondent was in the country on a valid, legal
status, recognized by the Government as such. Since he was not
"residing' in the country, he was not liable for military service;
and his application for relief from such service "was of no
effect.'
The Commissioner of Immigration and Naturalization in support of his
motion urged through counsel that the Kristensen case (supra), is
distinguishable from the case at bar and that it supports the position
taken by the Immigration Service. Counsel during oral argument before
this Board reasoned that the Selective Training and Service Act of 1940,
as amended, /1/ and the Executive order issued pursuant thereto did not
define who was a /2/ "male person residing in the United States' liable
for training and service after December 20, 1941; that the definition
of "resident' as contemplated in the statute was left to administrative
determination and that under the regulations issued administratively the
respondent /3/ was "a male person residing in the United States' at the
time he filed his application for relief from military service on
November 4, 1942.
We concede that insofar as the Selective Training and Service
regulations are concerned, counsel's argument in behalf of the
Immigration Service is technically correct when applied to the facts of
the case before us. However, we interpret the Kristensen case (supra),
as having a much broader concept outside of the regulations in question.
This broader concept in our opinion is found in the language used by
Justice Reed in the Kristensen case (supra), when he said that the
Selective Training and Service regulations effective February 7, 1942 (7
F.R. 855), "either made an alien in Kristensen's situation a nonresident
of the United States for the purpose of the Selective Training and
Service Act between February 7 and May 17, 1942 or they were
nondeterminative of status in that period.' In the absence of a
determinative regulation the meaning of the word "residing' in section
3(a) requires examination. The meaning of that word, of course, depends
upon the meaning of the word "residence.' The Court after citing several
references which construed the term "residence' concluded by saying
"when we consider that section 3(a) was obviously intended to require
military service from all who sought the advantages of our life and the
protection of our flag, we cannot conclude, without regulations so
defining residence that a sojourn within our borders made necessary by
the conditions of the times was residence within the meaning of the
statute.'
The factual situation which led to the Supreme Court's conclusion
aforementioned, is material to an understanding of the issue before us.
Kristensen, a Danish citizen, entered the United States as a temporary
visitor for 60 days on August 17, 1939, to attend the New York World
Fair. Two successive extensions of stay, each for 6 months, were
applied for and granted by the Immigration and Naturalization Service
but prior to his filing an application for military relief (DSS Form
301) economic necessity compelled him to become employed thereby
violating his visitor's status. A warrant of deportation issued in 1941
was outstanding at the time Kristensen filed the DSS Form on March 30,
1942. There was an affirmative showing that the outbreak of World War
II prevented Kristensen's return to Denmark and it was for this reason
that the deportation process was stayed for the duration of the
hostilities.
Thus the Supreme Court was confronted with the case of an alien who
had been administratively adjudicated as unlawfully residing in the
United States by the very agency of the Government primarily charged by
the Immigration Act of 1924 with the responsibility of determining
whether after admission as a temporary visitor he had remained in the
United States for a longer time than permitted under the said Act or
regulations made thereunder. Accordingly two basic factors were
presented. First Kristensen was unlawfully "residing' in the United
States under the immigration laws at the time he filed his application
for relief from military service. Second, under section 3(a) of the
Selective Training and Service Act of 1940 Kristensen was liable for
military service if "residing' in the United States within the meaning
of the act. The Selective Training and Service Act, however, did not
define who was a "male person residing in the United States' liable for
training and service after its amendment December 20, 1941. It was
necessary for the Supreme Court to turn to the administrative
regulations authorized under the act. They found in the alternative
that under applicable regulations an alien in Kristensen's situation was
either a nonresident of the United States between February 7, 1942, and
May 7, 1942, for the purpose of the Selective Training and Service Act
or that the applicable regulations were nondeterminative of his status
during the period. The latter alternative made it necessary for the
Supreme Court to interpret the term "residing' as used in section 3(a)
of the Selective Training and Service Act, as amended. It is clear from
a reading of the penultimate paragraph of Justice Reed's opinion that
the overall purpose of the Selective Training and Services Act together
with the fact that exigencies of war made Kristensen's extended sojourn
necessary were duly considered in reaching their conclusion.
The case at bar, however, presents only the first basic factor
referred to above. The respondent originally entered the United States
on August 18, 1939, one day after Kristensen. Unlike Kristensen he was
granted successive extensions of staying by the Immigration and
Naturalization Service which extended to January 1, 1946. He
voluntarily departed from the United States on September 22, 1945, while
still in the lawful status of a visitor for business. At the time the
respondent filed an application for relief from military service on
November 4, 1942, the records of the agency of the Government primarily
charged under the Immigration Act of 1924 with the responsibility of
determining his immigration status showed that he was to be considered
as a "temporary visitor' until March 1, 1943. In fact the respondent,
under date of August 30, 1942, wrote the then Deputy Commissioner
thanking the Department of Justice "for the extension of (his) temporary
stay to March 1, 1943, and for the permission to continue (his)
employment.' He referred to the fact that he had been placed by the
"United States Farm Employment Service,' that he was "giving a hand to
the farmer's harvest as I heard they were short on help when I
registered' and that he "notified the local (draft) board the first day
of my arrival here.' Thus it is clear from the record that both the
respondent and the agency of the Government primarily charged by law
with the responsibility construed his status to be that of a nonresident
alien at the time he filed the pertinent application. Under the
circumstances it would be extremely arbitrary and capricious to construe
the congressional use of the term "residing' found in section 3(a) of
the Selective Training and Service Act of 1940 to include all "temporary
visitors,' regardless of the surrounding circumstances, or their own
attitude and that of the responsible Executive Agency toward their
presence here.
It is our considered opinion in light of the foregoing that we would
be doing complete violence to section 3(a) of the Selective Service
statute if we construed the phrase "residing in the United States' as
applicable to the respondent. Our position is amply supported by Mr.
Justice Jackson's concurring opinion in the Kristensen case (supra). He
repudiated a prior opinion of his (39 Op.A.G. 504) interpreting the very
same clause of the Selective Training and Service Act with which we are
here concerned. Justice Jackson stated that his opinion as Attorney
General did not consider our diplomatic history which consistently
asserted the rights of our citizens to be free from "seizure for
Military duty by reason of temporary and lawful presence in foreign
lands.' He mentioned the fact that "if an alien is not a mere sojourner
but acquires residence here in any permanent sense, he submits himself
to our law and assumes the obligations of a resident toward this
country.' He reached the same conclusion as we do; namely, that "the
language of the Selective Training and Service Act can be interpreted
consistently with this history of our international contentions.' Under
similar circumstances Judge Hall in Ex Parte Ghosh, 58 F.Supp. 851, 854
(D.C.S.D., Cal., November 16, 1944), so forcibly said, "after all, it is
one government and I do not think it is within the contemplation of our
system that a man should be fish before one department and fowl before
another * * * it would require, I think, what John Marshall called
refined and metaphysical reasoning (to subject an alien student visitor
to Military Service on behalf of the United States).' These views we
consider basic in adjudicating this case.
There is one point in the argument of counsel for the Immigration
Service not included in those referred to above and which we think
should be answered. Counsel for the Service maintains that the
distinction he has raised with respect to Kristensen case (supra), was
recognized by this Board in Matter of K , A-9623678, April 17, 1951.
The alien in Matter of K (supra), last entered the United States on
January 1, 1943, and was admitted as a seaman for a period of 29 days or
the length of time his vessel was in port whichever period was the
shorter. He remained after his vessel departed. When he filed an
application for relief from military service as an alien of a neutral
country, Finland, on February 6, 1943, he was residing here in an
unlawful status.
Thus we were confronted with the same basic factors as the Kristensen
case presented; namely, an unlawfully resident alien who was liable for
Military Service if "residing' in the United States within the meaning
of the Selective Training and Service Act. The extent of our findings
in that case parallel those of the Supreme Court in the Kristensen case,
namely, that the applicable regulations under the Selective Training and
Service Act "specifically excepts a nondeclarant alien who enters the
United States lawfully (K entered lawfully as a seaman) from registering
or filing an application for determination of residence (Form 302) until
3 months after the date of his entry if he entered subsequent to May 16,
1942.' Since K lawfully entered on January 1, 1943, and was a
nondeclarant alien, there was no obligation on his part under the
Selective Service regulations to register or file for a determination of
residence until April 1, 1943. We found on the basis of the Selective
Service regulations in effect at the time of K 's entry that when he
filed his application for relief on February 6, 1943, he was not
"residing in the United States' within the meaning of the Selective
Service Act because the 3-month period of grace had not expired.
The respondent herein, however, maintained the lawful status of a
temporary visitor and it was so recognized by the responsible agency of
the Government for the entire period of his sojourn August 18, 1939,
through September 22, 1945. Accordingly counsel's argument in behalf of
the Service on this point is without merit.
Order: The motion is hereby denied. Our opinion of April 6, 1951,
is hereby affirmed.
(1) Section 3(a) of the Selective Training and Service Act of 1940,
54 Stat. 885, ch. 720, as amended (December 20, 1941) 55 Stat. 844, 845,
ch. 602, 50 USCA Appx. Section 303(a), FCA title 50, Appx. Section
303(a) provides in part:
"Except as otherwise provided in this Act, 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 of the United States: Provided, 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 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.'
(2) Executive Order 8545, September 23, 1940, 5 F.R. 3786 of
September 25, 1940.
(3) 32 C.F.R., Cum. Sup., 611.12, 611.13, 611.21, 611.26, and 611.28.
For the text of these regulations see 7 F.R. 855, 2084, and 7222.
Mr. LEIGH L. NETTLETON, Member, dissenting:
The decision by the Supreme Court in the Kristensen case (340 U.S.
162, 1950), in my opinion leads to the conclusion that the respondent is
ineligible for citizenship. If that be so, his ineligibility
disqualifies him for preexamination inasmuch as he is inadmissible to
the United States (8 U.S.C. 213(c)) and cannot obtain issuance of an
immigration visa (8 U.S.C. 202(f)).
The comment by Mr. Justice Jackson in his concurring opinion in the
Kristensen case that "We should (not) construe our legislation to
penalize or prejudice such aliens (here for temporary residence) for
asserting a right * * *,' seems not to have been transgressed.
Examination of the Selective Service regulations discloses that the
right of a temporary resident has been fully protected by provision
promulgated February 7, 1942, for an application of determination of
status (32 C.F.R. 611.21). The respondent made no such application. On
the contrary, he sought exemption from liability to service by asserting
his claim that he was a neutral alien. Such application under 50 U.S.C.
303 operated to bar him from becoming a citizen of the United States.
Under 32 C.F.R. 611.13, an alien who was not a member of a class
specifically exempted, to which the respondent makes no claim, and who
was in the United States after May 16, 1942, or for more than 3 months
after the date of his entry, whichever is the later, is declared to be
residing in the United States within the meaning of the Selective
Training and Service Act of 1940. Prima facie, therefore, he was liable
to serve, and on November 4, 1942, he asserted his status as a neutral
alien as basis of his application for relief from such liability. The
fact that for the purpose of the immigration laws he was accorded the
status of a temporary visitor is, in my opinion, beside the point.
I believe that so much of our order of April 6, 1951, which grants
the respondent the privilege of preexamination should be withdrawn.
In accordance with the provisions of Title 8, Code of Federal
Regulations, section 90.12(c) this case is certified to the Attorney
General for review of this Board's decision.
The decision and order of the majority of the Board of Immigration
Appeals dated August 2, 1951, are hereby disapproved.
Seventh proviso relief -- Section 3, act of February 5, 1917 -- Exercise of discretion as to alien who had one or more attacks of insanity -- Discretion under section 19(c) of the act of February 5, 1917, as amended -- Exercise of discretion, as a matter of policy, in certain classes of cases. (See 4, I. & N. Decs. 64 and 223.)
An alien admitted as a seaman on November 20, 1941, was found deportable for staying beyond the time he was permitted. He has a wife and minor child abroad. When he sought the preexamination privilege together with voluntary departure, it was found that he would be inadmissible on return because of one or more attacks of insanity. In 1946, he was granted voluntary departure, but to be deported if he failed to so depart. The exercise of the discretion under the 7th proviso to section 3 of the act of February 5, 1917, was sought thereafter so that he could be admitted notwithstanding this ground of inadmissibility when he returned. This relief for such a cause was held limited to cases in which an alien had close family ties in the United States and had resided here for a long period of time. Because of the manner in which he entered the United States (presence permitted solely because of reasons connected with the war), and because of the other circumstances here, the relief requested under section 19(c) (supra), as well as under the 7th proviso to section 3 (supra), was held not justified, it being noted he had eked out a 7-year period of residence by failing to comply with order of voluntary departure in 1946.
CHARGE:
Warrant: Act of 1924 -- Remained longer -- seaman.
Discussion: On February 21, 1949, this Board ordered that
respondent's request for a grant of voluntary departure and exercise of
the 7th proviso be denied and the motion of the Assistant Commissioner
that an order directing the deportation of respondent to Finland be
entered. Counsel has submitted to the Assistant Commissioner an
application for adjustment of his status in the United States under
section 19(c) of the Immigration Act of 1917, on the grounds that he has
shown good moral character and has resided in the United States for 7
years. That application was referred to this Board, and we have chosen
to treat it as a motion to reconsider.
In our opinion of February 21, 1949, we pointed out that the exercise
of the 7th proviso with respect to aliens who have had one or more
attacks of insanity has been limited to cases in which an alien had
close family ties in the United States and had resided in this country
for a long period of time. At that time we cited some Board precedents,
without giving the facts in each case. In order to make it abundantly
clear to respondent and his counsel, employer and friends, that
discretionary relief has not been extended in such cases as the present
one, we will cite additional precedent with the salient facts in each
case. In Matter of Z , 56171/40 (approved by the Attorney General April
30, 1946) the alien had resided in the United States since 1921 and had
a legally resident alien dependent wife and a citizen son in this
country. In Matter of P , 56175/672 (approved by the Attorney General
May 28, 1946) the alien had lived in the United States since 1911 and
had a United States citizen husband. In Matter of L , A-5426353
(approved by the Attorney General June 20, 1946) the alien had resided
in the United States since 1921 and had a citizen husband and six
citizen children. In Matter of K , A-1516552 (approved by the Attorney
General June 24, 1946) the alien had resided in the United States since
1923 and had a minor citizen child to whose support she contributed. In
Matter of S , 56171/589 (approved by the Attorney General July 18, 1946)
the alien had resided in the United States since 1922 and had a United
States citizen husband, two citizen children, and her mother and father
resided in the United States. Matter of T , A-6352231, (approved by the
Attorney General November 4, 1946), concerned an alien who had entered
the United States about 1891 and had five citizen children living in the
United States. Matter of K , A-3863367 (approved by the Attorney
General November 21, 1946) concerned an alien who had entered the United
States in 1905 and had a United States citizen wife and four minor
dependent children. These are typical cases in which this Board has
granted the 7th proviso to persons who have had a prior attack of
insanity. In most of these cases the alien had been discharged as
recovered, or declared sane by a court of competent jurisdiction, some
years prior to the time that his case came before us. It is clear that
to grant the 7th proviso to an alien who has been in the United States
only seven or eight years and whose family lives abroad would be an
extension of discretionary relief to cases not previously covered.
Counsel has requested relief for respondent under section 19(c) of
the Immigration Act of 1917. Even though respondent has not had a
recurrence of his 1942 attack, even though he did not desert his ship
but was brought into this country for reasons connected with the war,
and even though he is most highly spoken of by his friends and
employers, under the present state of statutory and case law we deem it
inadvisable on the basis of established precedent to grant him
discretionary relief.
It is necessary for us to refuse relief under that section for two
additional reasons: (1) It has been our policy to refuse suspension to
those persons who have managed to eke out seven years residence in the
United States by failing to cooperate with the immigration officials.
Respondent is such a person. He entered the United States on November
30, 1941. On May 19, 1946, he was granted voluntary departure and
preexamination. In preexamination proceedings before a board of special
inquiry he was found inadmissible on the ground that he had been
certified as having had one or more attacks of insanity. On November 5,
1946, he was granted a 60-day extension of time within which to depart
voluntarily and was notified that if he failed to depart, an order of
deportation would be entered against him. On November 20, 1946, this
Board affirmed that decision. At that time respondent had but five
years residence in this country. He has acquired the additional two
years to complete the necessary seven years residence. He has done so,
however, by his failure to leave when he was given an opportunity to do
so. Of his own volition he chose to remain in the United States, and
the consequences of his choice are deportation.
(2) It has been the general policy of this Government to return to
their native countries all aliens whose presence in the United States
has been solely because of reasons connected with the war. Immigration
procedures providing for adjustment of status in the United States have
not been applied to their cases, except where such persons are married
to American citizens who are dependent upon them for support.
Respondent entered the United States on November 20, 1941, at New York
as a member of the crew of the Finnish S.S. Kurikka. On December 7,
1941, that vessel was taken over by the United States Coast Guard, and
respondent was delivered to Ellis Island. Respondent was not interned
in an alien enemy camp, as were many alien seamen who were brought into
the United States under similar circumstances and whose ships were
commandeered for security purposes. He was permitted to remain in the
United States and to work ashore. Otherwise, there is no distinction
between his case and that of many other aliens who were required to
leave the United States upon the termination of hostilities. In Matter
of L , A-5955999 (February 8, 1946), the Attorney General held
(reversing this Board and sustaining the Commissioner) that an alien
brought into the United States because of reasons connected with the war
would not be granted discretionary relief (with the exception noted
above, not applicable here, which became part of departmental policy
subsequent to the date of the L case). Respondent's family ties are
abroad. Therefore, the policy set forth above forbids grant of relief
in this case.
Due to present political conditions in Finland respondent objects to
returning to that country. We will permit him to depart under the
warrant to any country of his choice within 30 days. This does not mean
that he is again being given voluntary departure or that he is not
considered to have been deported. It merely gives him the opportunity
to make arrangements to go to some country other than Finland, if it is
possible for him to do so.
Order: It is ordered that the motion to reconsider be denied.
It is further ordered, That the alien be permitted to depart from the
United States, or ship foreign one way, without expense to the
Government, to any country of his choice, within 30 days, on consent of
surety, such departure to be verified and considered a satisfactory
compliance with the terms of the warrant. Departure in accordance with
the foregoing will be deemed sufficient to cancel the outstanding
delivery bond.
It is further ordered, That if the alien does not effect his
departure in accordance with the foregoing order, that he be deported to
Finland at the expense of the Government of the United States.
(1) Editor's note. -- On June 28, 1950, the hearing was ordered
reopened for further medical evidence regarding the attack of insanity,
the outstanding order and warrant of deportation being withdrawn.
Expatriation -- Voluntarily voting in foreign political election -- Section 401(e) of the Nationality Act of 1940 -- "Political' election construed.
Where a native-born citizen voluntarily voted (in December 1945) in an election for commissar of the Agrarian Community or Ejido of San Bernardo, Guanajuato, Mexico, he has voted in a foreign "political' election within the meaning of section 401(e) of the Nationality Act of 1940 (See Matter of M., 2, I. & N. Dec. 427 as to local option "election' in Canada. Also, see 3, I. & N. Dec. 558, 586).
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 -- No immigration visa. Executive Order 8766 -- No
passport.
Discussion: This case is before us on appeal from an order entered
by the Assistant Commissioner on April 26, 1949, affirming the
appellant's exclusion by a Board of Special Inquiry on the above-stated
grounds.
The appellant, male, 22 years of age, was born at Copperhill, Ariz.,
on January 24, 1926, of Mexican parents. He was taken to Mexico by his
parents in 1931 and resided there until August 1946. The Assistant
Commissioner concludes that the appellant has expatriated himself under
the provisions of section 401(e) of the Nationality Act of 1940 (voting
in a foreign political election). This conclusion is based on
appellant's testimony that in December 1945 he voted voluntarily in an
election for commissar of the Agrarian Community or Ejido of San
Bernardo, Guanajuato, Mexico. The only question before us on this
appeal is whether or not the appellant's action, as disclused by his
testimony, amounts to voting in a political election within the meaning
of section 401(e) of the Nationality Act of 1940.
In Matter of F , 56156/450 (determined by the Atty. Gen., Aug. 19,
1946), we were faced with the question of whether voting in a local
option election in Canada was voting in a political election in a
foreign state and thus constituted an act of expatriation under section
401(e) of the Nationality Act of 1940. The majority of the board held
that such voting did not constitute an act of expatriation and set forth
at length their views of what constituted a political election under
section 401(e). The dissent likewise set forth the views which they
believed should control in determination of the question. Because of
the importance of the question presented and as a dissent had been
recorded, the case was certified to the Attorney General. The Attorney
General in holding that Miss F lost her citizenship by participation in
the local option election stated, "Whether a local option election is a
political election within the meaning of the statute is a question that
cannot be regarded as settled until the courts have had occasion to pass
upon it and I feel that a judicial decision thereon is desirable.'
The appellant in the instant case participated in an election of a
commissar or president of the Ejido in which he was living. The Ejido
is a type of communal land-holding peculiar to Mexico and therefore in
reaching a decision in this case we must make an effort to determine
just what part it plays in the overall political setup of the Mexican
government. We must also consider the position held by the official for
whom the appellant voted to ascertain if his powers and duties are such
that he is regarded as a government official and not merely a
representative of persons banded together in a cooperative venture. If
we find that the Ejido and its government officials are so closely
interwoven within the general pattern of the Mexican Federal Government
as to be classed a political subdivision or part thereof, we feel there
would be no question under either of the views as expressed in Matter of
F , supra, that the appellant participated in a political election.
The Ejido and its governing officials are provided for by the
Agrarian Code of the United Mexican States which sets forth the
organization and scope of the agrarian and communal landholders and
agencies. The articles of the Agrarian Code pertinent to the issue at
hand are set out as follows:
Art. 4. The following are the authorities of the groups of
communal land residents and of the communities holding lands:
I. -- The general assembly.
II. -- The community and communal land commissars, and
III. -- The executive council.
ART. 17. The general assemblies shall be composed exclusively
of communal landowners who have not lost their communal land
rights, and shall be deemed to be legally constituted, except in
case a second meeting is called, when one more than one-half of
the members are present.
ART. 20. In the general assemblies of the communal land
residents voting shall be nominal. Whenever the election is for
the communal land commissar or the executive committee and the
result of such voting is a tie, the voting shall be repeated and
if again tied, the Agrarian department, the secretary of
agriculture and development or the national communal land credit
bank in its case, shall together draw up a plan assigning the
posts by lottery between the individuals who have obtained the
same number of votes. The members of the commissiariats and the
executive councils of communal land settlements can be reelected
when they obtain, at least, the two-thirds majority of the
assembly.
ART. 22. The communal land commissars shall be elected in a
general assembly of the communal land residents by a majority of
votes and shall hold office and be composed of three landholding
members and three substitues therefor, and they shall discharge
the offices of president, secretary, and treasurer.
ART. 42. The duties of the general assembly of communal
landholders are:
I. -- Elect and remove the members of the communal commissariat
and of the executive council, in accordance with the provisions of
this code:
II. -- Authorize, modify and correct, by due legal form, the
decisions of the communal commissariat:
III. -- Discuss and approve, as appropriate, in each case the
reports rendered by the commissariat and order that the approved
statements of accounts be posted in a place visible to the
settlement:
IV. -- Ask the intervention of the agrarian authorities when
requested by and in the interests of the residents, in determining
a matter involving suspension or deprivation of rights of members
of the communal land settlement:
V. -- Hand down decisions relative to the manner in which
communal land of the settlement shall be utilized, which decisions
shall be approved and implemented where appropriate by the
secretary of agriculture or by the national communal credit bank;
and
VI. -- The further duties that this code and other laws and
regulations provide. ART. 43. The communal land commissars shall
have the following duties:
I. -- Represent the initial groups of residents before
administrative and judicial authorities, under a general mandate
of authority:
II. -- Upon execution of the order by the governor, or by
presidential decree in its stead, take over the lands and the
documentation pertaining thereto:
III. -- Administer the communal lands in such manner as to
maintain a communal regime, under a general grant of authority for
all supervising and administrative acts, according to the
limitations established by this code:
IV. -- Ensure the proper parceling of communal land:
V. -- Ensure that individual and collective exploitations is in
accordance with the law and decisions of the department, the
secretary of agriculture and development and the national communal
credit bank:
VI. -- Form a part of the administrative council of the local
communal land credit community groups:
VII. -- Call all of the communal landholding residents to a
general assembly, at least once a month, and on every occasion it
is requested by their executive council, the Agrarian department,
secretary of agriculture, or the national communal credit bank:
VIII. -- Render account to the general assemblies of the work
performed, the use of the funds and the proposed undertakings:
IX. -- Comply with and ensure the compliance with the orders
issued by the Agrarian authorities and the general assemblies;
and
X. -- The further orders of this code and the other laws and
regulations applicable.
Although it is difficult to determine the exact nature of the Ejido,
it is apparent from a study of the Agrarian code and other material on
this subject /1/ that it is a part and can be classed as a political
subdivision of the Mexican Federal Government. It is true that the
Ejido and its governing body have some characteristics of a cooperative
venture. However, we feel that it is so integrated within the political
structure of the Mexican Federal Government that when the appellant
voted in the election for the president of his local Ejido, he was
participating in a foreign political election, and as such he has lost
his citizenship under section 401(e) of the Nationality Act of 1940. On
this basis the grounds of inadmissibility are sustained and the appeal
will be dismissed.
Order: It is ordered that the appeal be and the same is hereby
dismissed.
(1) The Ejido -- Mexico's Way Out, by Eyler N. Simpson: "The Ejido
villages were launched upon a career of what, for lack of a better term,
may be called simple collectivism. Ejido lands were to be held and
worked in common -- all for one and one for all, and no questions raised
concerning mine and thine. Ejido villages, like their prototypes of
colonial days, were to be wards of the nation. State and municipal
authorities might levy taxes, but there, for all practical purposes,
their rights over Ejido lands ended. Economic and social control of
Ejidos was to be vested immediately in Ejido administrative committees.
But the powers of these committees were to be strictly limited by the
guarantees of initiative, referendum and recall on the one hand and the
direct intervention and supervision of the National Agrarian Commission
on the other.'
Chapters on the Agrarian question in Mexico by Fernando Gonzales Roa,
pp. 151-153: "No difference of opinion apparently exists concerning the
jurisdiction of the said Government over Ejidos. The prerogatives of
the royal power passed to the nation along with full sovereignty. Full
sovereignty resides in the Federal Government and not in the States.
Therefore, all rights conferred upon the States by Spanish laws relating
to Ejidos are made over to the central government of the republic.'
On January 6, 1915, there was created a national Agrarian commission
which exercises jurisdiction over the land commission and local boards,
thus confirming the legal nature of the question and definitely declares
the Ejidos to be subject to federal authority.
Editor's note. -- One who voted at a Japanese election, ordered by
and conducted under the supervision of the United States in 1946, was
held not voting in a political election in a "foreign State,' as
contemplated by section 401(e) supra, in Arikawa v. Acheson, 83 F.Supp.
473, 1949, but this was not accepted in Uyeno v. Acheson, 96 F.Supp.
510 (where additional question of "voluntariness' was involved). In
direct disagreement with the holding in the Arikawa case, supra, is the
9th Circuit holding in Acheson v. Kuniyuki, 189 F.2d 741 (1951),
rehearing denied 190 F.2d 897, certiorari pending.
Seaman -- Returning legally resident alien -- Exemption (in 1926) as to immigration visa requirement -- Effect where such seaman a mere "workaway.'
An alien who lawfully admitted for permanent residence in 1923 and was found to be a returning legal resident in 1926, returning from a temporary visit abroad -- is deemed a returning resident alien seaman exempt from presentation of documents, where he was a "workaway' (then signed on the ship's articles and employed aboard a vessel arriving here from a foreign port, sec. 1, Immigration Act of 1917) though not a "bona fide' seaman under section 3(5) of the act of 1924 (which refers to nonimmigrant seamen).
CHARGE:
Warrant: Act of 1924 -- No immigration visa.
Discussion: Respondent, a native and citizen of Germany, male, 58
years of age, married, first entered the United States on April 26,
1923, and was admitted for lawful permanent residence. He last entered
the United States on May 24, 1926, and was admitted as a seaman.
Between these two entries respondent made three departures and two other
entries. There have been seven deportation hearings in this case.
After the last hearing the Commissioner of Immigration and
Naturalization on May 10, 1946, ordered respondent's deportation to
Germany. This Board reversed that decision, granting respondent
voluntary departure on June 19, 1946, and denying his application for
preexamination. On April 22, 1948, we directed a reopening in order to
receive into the record additional evidence bearing on the question as
to whether or not the respondent was actually a returning resident alien
seaman at the time of his last entry "and therefore exempt from
presentation of documents.' The reopened hearing was held and the
presiding inspector came to the conclusion that respondent was not a
bona fide seaman and entitled to admission as such at the time of his
last entry. The Assistant Commissioner adopted those findings and
ordered that the alien be deported to Germany at Government expense on
the charge that he entered without an immigration visa in violation of
the act of 1924.
We will not set forth at length the issues and evidence. This was
done most competently by the presiding inspector in his opinion of
December 13, 1948. In previous hearings a principal dispute between
respondent and the Government was whether or not the respondent had at
any time during the interval between April 26, 1923, and May 24, 1926,
adandoned his residence in the United States. The presiding inspector
concluded that the evidence now in the record conclusively establishes
that at all times between those dates the respondent had the intention
to return to the United States and to maintain his residence here. With
this finding, we concur.
The only issue now before us is the decision of the following
question: Would the regulations in 1926 allow the admission of
respondent without a reentry permit or an immigration visa? The
presiding inspector concluded, first, that respondent was admitted in
1926 as a seaman, a nonimmigrant and nonresident, for a temporary
period, and, second, that the regulations at that time did not permit an
admission of respondent without a visa as a returning resident alien
seaman, because respondent was a workway rather than a bona fide seaman.
Counsel, on the contrary, contends first, that respondent was admitted
in 1926 as a returning resident alien seaman who had been previously
lawfully admitted to the United States, and, second, that the
regulations at that time were such as would permit such an admission of
respondent, even though he was a workaway and not a bona fide seaman
whose sole occupation was in pursuit of his calling at sea. Section 1
of the 1917 act defines the term "seaman' to include "every person
signed on the ship's articles and employed in any capacity on any vessel
arriving in the United States from any foreign port or place.' Section 3
of the act of 1924 provides, in part:
SECTION 3. 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 * * * (5) a bona fide alien
seaman serving as such on a vessel arriving at a port of the
United States and seeking to enter temporarily the United States
solely in the pursuit of his calling as a seaman * * *
The regulations in question are as follows:
Subdivision A, PP.1. The term "seaman' as used in this act
shall include every person signed on the ship's articles and
employed in any capacity on board any vessel arriving in the
United States from any foreign port or place. Only aliens who
come within such definition shall be treated in the special manner
herein specified * * *.
Subdivision A, PP.2. A bona fide seaman within the meaning of
subdivision 5 of section 3 of the Immigration Act of 1924 is any
alien whose sole occupation is to manage, navigate, or operate,
assist in the management, navigation, or operation of ships at
sea, and includes any alien who is in good faith signed on the
ship's articles and employed in any capacity on board any vessel
arriving in the United States from any foreign port or place.
Subdivision E, PP.3. A bona fide alien seaman serving as such
on a vessel arriving at a port of the United States and seeking to
enter the United States as an immigrant shall be subject to all
the immigration laws, rules and regulations applicable to
immigrants and shall be required to present to the proper
immigration official at the port of arrival an immigration visa
duly issued and authenticated by an American consular officer in
the manner required by law: Provided, That where it shall
satisfactorily appear that such alien seaman has been previously
lawfully admitted to the United States and is returning from a
temporary visit abroad and is otherwise admissible he may be
regularly admitted without an immigration visa upon payment of the
requisite head tax.
Subdivision E, PP. 3, has been amended and now appears as 8 C.F.R.
120.20(b), as follows:
An alien seaman, who, previously, has been lawfully admitted
for permanent residence and who is returning to an unrelinquished
domicile in the United States may, if otherwise admissible, be
permitted to enter as a returning resident under section 4(b) of
the said act without a nonquota immigration visa or reentry permit
if the name of such alien appears on the crew list of the vessel
on which he arrives and is included in the visa thereof * * *
The troublesome phraseology is in PP. 3 above, from which it appears
that only "bona fide seaman' as distinguished from "seaman' were to be
admitted without a visa when they returned from a temporary visit
abroad. Superficially, this would appear to have been the situation,
and this was the finding of the presiding inspector. We hold that
respondent was a "seaman' in Section 1 of the 1917 act, even though he
was clearly not a bona fide seaman under section 3(5) of the Immigration
Act of 1924 and paragraph 2 of subdivision A above quoted. We hold that
the clause "provided,' that where it shall satisfactorily appear that
such alien seaman has been previously lawfully admitted to the United
States and is returning from a temporary visit abroad and is otherwise
admissible he may be regularly admitted without an immigration visa * *
*' applies to seaman as defined in PP. 1. It is obvious from the text
and the context that "bona fide seaman' refers to nonimmigrant seaman
under section 3(5) of the 1924 act and not to immigrant seaman.
Respondent was a seaman under section 1 of the 1917 act in that he was
signed on the ship's articles and employed on board a vessel arriving in
the United States from a foreign port.
It is our conclusion that respondent was a returning resident alien
seaman at the time of his last entry, and therefore he was exempt from
presentation of documents. He was regularly admitted in accordance with
the regulations existing at that time and was not required to present
documents. The "no visa' charge is not sustained. These proceedings
should be terminated.
Order: It is ordered that these proceedings be terminated.
Citizenship -- Acquired by child at birth outside the United States (1920) through citizen father -- R.S. 1993 -- Prerequisite as to father's residence in United States prior to birth of child.
1. A child born in China in 1920 to a United States citizen father (the son of a native citizen, under R.S. 1993) is deemed to have acquired United States citizenship at birth where the father resided in the United States prior to the birth of such child.
2. Such residence by the father prior to the birth of the child is deemed established where the father came to the United States in December 1919, was detained at the port of arrival while his citizenship status was determined both administratively and judicially, and was discharged in 1921 when the court decided the father was a citizen as he claimed, the father being deemed to have entered the United Staes in December 1919, which was before the birth of the child in 1920. (See 2, I. & N. Dec. 191.)
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act 1924 -- No immigration visa.
Executive Order 8766 -- No passport.
Discussion: The appellant is a 29-year-old married male, a native of
China, having been born in that country on March 21, 1920. He arrived
at the port of Boston, Mass., on November 17, 1949, by plane and sought
admission into the United States as a citizen of the United States,
claiming that he acquired United States citizenship under section 1993,
Rev. Stat., through birth abroad to a citizen father. It was concluded
that he had failed to establish his claim to United States citizenship,
he was excluded on the grounds above mentioned, and from that decision
he appealed.
For the applicant to have derived United States citizenship under
section 1993, it is necessary that his father shall have resided in the
United States prior to the appellant's birth (Weedin v. Chin Bow, 274
U.S. 657). The sole issue in the case is whether the appellant's father
did in fact so reside. The appellant's father, who is also a native of
China, first arrived at Angel Island, Calif., on December 29, 1919, via
the S.S. Korea Maru and applied for admission into the United States as
a citizen of the United States, claiming that his father was a
native-born citizen of the United States. The evidence presented in
support of his claim was not deemed sufficient to establish that his
father was a native-born citizen of the United States and he was
excluded on April 9, 1920. From that decision he appealed. The appeal
was dismissed on June 18, 1920. Thereafter, habeas corpus proceedings
were brought on June 23, 1920, in the United States District Court for
the Northern District of California, Southern Division, and on September
27, 1920, the court ordered the appellant's father discharged as a
citizen of the United States. No appeal from this decision was taken
and the appellant's father was landed as a citizen of the United States
on February 9, 1921. It will be noted that the appellant was born in
China on March 21, 1920, while his father was in detention pending a
final disposition of the latter's initial application for admission into
the United States.
The final disposition of the application for admission into the
United States as a citizen of the United States that was made by the
appellant's father on December 29, 1919, was his landing on February 9,
1921, as a citizen of the United States. Although the appellant's
father, until the final adjudication of his application for entry into
the United States, was regarded as having been stopped at the border of
the territorial limits of the United States, since his application for
admission as a citizen was finally determined in his favor, he is to be
regarded as having entered this country as of the date of his original
arrival in the United States (Matter of O S , 55933/351 (Dec. 29, 1944,
B.I.A.); Matter of C B L , 1300-62010 Feb. 18, 1948, C.O.)). The
appellant's father, therefore, is regarded as having begun to reside in
the United States on December 29, 1919, and the appellant, accordingly,
did acquire United States citizenship under section 1993, Rev. Stat., at
birth. There is no evidence that he has since expatriated himself. His
appeal will, therefore, be sustained and his admission will be
authorized.
Recommendation: It is recommended that the appeal be sustained and
that the appellant be admitted to the United States as a citizen of the
United States.
So ordered.
Fine -- Failure to detain alien seaman for inspection -- Section 20, act of 1924 -- "Arrival from foreign.'
Under section 20 of the Immigration Act of 1924, the duty is upon the
ships' operators to detain seamen on vessels "arriving from foreign'
until inspected, and the responsible parties are not relieved from such
duty merely because there was brief (35 minutes) contact with shore at
an American port prior to the vessel's "arrival' at a subsequent port in
the United States, where the immigration authorities at the first port
were not notified, there was no immigration inspection and the vessel
did not formally enter (was not "entered' by customs) at the first port
of contact here.
Discussion: This is an appeal from the order of the Assistant
Commissioner imposing a fine of $1,000 under section 20 of the
Immigration Act of 1924 against the Eastern Transportation Co., owners
of the S.S. Baldrock, for failure to detain an alien seaman, E G , on
board the vessel upon its arrival at Boston, Mass., on May 23, 1946,
until inspected by an immigrant inspector.
The record is none too clear, but from our examination of it we
conclude these to be the facts: On May 11, 1946, the tug Baldrock,
under the command of Captain A C S , arrived at Boston from another
United States port. His tug was short one seaman. The Boston agents
secured and sent to the Baldrock seaman E G . The master of the
Baldrock was waiting for the seaman and as soon as he arrived the tug
got under way and picked up two barges. The tug and tow were destined
to Hantsport, Nova Scotia. Being busy with his duties incident to
picking up the tows, the master did not have the opportunity to
interview G until some hours after departure from Boston. According to
the master's testimony, G claimed to be a United States citizen through
naturalization but said he had lost his papers. Because of lack of
papers the master says he had insufficient data formally to sign G on as
a member of the crew.
The Baldrock arrived at Hantsport, Nova Scotia, on May 14. On May 16
it left for Rockland, Maine, arrived there May 17 in the forenoon. It
again sailed for Hantsport, Nova Scotia, the same afternoon. The tug
entered and cleared at Rockland, Maine, in regard to this arrival.
On May 21 the Baldrock left Hantsport, Nova Scotia, and arrived at
Rockland, Maine, on May 22, at 2:10 p.m. It left Rockland at 2:45 p.
m., or 35 minutes after arrival. At Rockland it picked up one barge and
proceeded to Boston where it arrived on May 23. At Rockland on May 22
the Baldrock made contact with shore but was not entered by customs, nor
was there immigration inspection.
Because not formally signed on as a crew member and because he had no
papers, the master says G 's name was not included on the crew list
filed upon arrival at Rockland, Maine, on May 17, or at Boston on May
23. The master testified that the Baldrock arrived at Boston May 23 at
5:40 p.m. and was boarded at Boston at 6:20 p.m. the same day, that is
40 minutes after arrival. The immigration authorities were notified of
the ship's arrival by Maxwell Harris Co., the ship's Boston agents. On
May 24, G was paid off by the master without having been presented for
inspection. He was not inspected by immigration authorities at
Rockland, Maine, on May 22 nor at Boston on May 23. /1/ It is very
apparent that the failure to have G inspected upon arrival at Boston was
because his name was not on the crew list.
A question has been raised whether the Baldrock was subject to
immigration inspection upon its arrival on May 23 at Boston because it
was then coming from another part of the United States, to wit:
Rockland, Maine. To us it is very clear the Baldrock was subject to
immigration inspection upon arrival at Boston. The Baldrock did not
formally enter at Rockland, Maine, on May 22, and we may properly assume
this was for the master's convenience as the tug was there but for 35
minutes and only for the purpose of picking up a second tug to take to
Boston.
The procedure of inspecting the crew upon arrival at Boston is in
accord with immigration practice. Section 884.21(b) of the Immigration
Manual provides as follows:
When inspection is not completed at first port of arrival. --
The immigration inspection of an alien seaman not made or
completed at the initial port of arrival must be made or completed
at the first subsequent port of call in the United States, if the
vessel has not since proceeded to any foreign place.
The duty is on the ship operators to detain seamen on vessels
arriving from foreign until inspected. Because the immigration
authorities at Rockland were not notified of the ship's arrival and,
therefore, during the 35 minutes the Baldrock was at that port did not
inspect the crew, gave the vessel no right to proceed to another port
and thus avoid the necessity of detaining seamen for inspection. The
duty to detain seamen for inspection is a continuing one, and lasts
until the vessel is boarded by immigration officials for this purpose
and the crew inspected. In fairness to the master, it should be
observed he claimed no such exemption and saw to it that upon arrival at
Boston, immigration authorities were notified and all of the crew but G
were inspected.
Counsel argues that the evidence to prove the alienage of G is
incompetent. Exhibit 4 is a certificate showing G 's birth in Canada.
At the hearing no objection was made to the introduction of this exhibit
in evidence. It is sufficient to establish G 's alienage irrespective
of the competency of other evidence offered to establish the same point.
Counsel also points out that the master had no knowledge that G was
an alien. Even so, this is no excuse for not presenting G to the
immigration authorities for inspection. Immigration inspection was the
proper forum for determining this issue. It is true if G had been a
citizen, a penalty could not be imposed -- but the obligation would
still have been on the master to present G for inspection. The master
acted at his peril when he failed to detain G on board for inspection.
In fact, we see no excuse whatever for not presenting G for immigration
inspection at Boston on May 23 when the vessel was boarded by an
immigrant inspector and the other members of the crew inspected.
We believe there has been a violation of law, and the action of the
Commissioner should be affirmed.
Order: It is ordered that the appeal be dismissed.
(1) The sequence of events seems to be as follows: The Baldrock
arrived at Boston, 5:40 p.m., May 23, docked at the Mystic wharf, 6:20
p.m., May 23, and was boarded by immigration officers at the Mystic dock
upon arrival there, about 6:20 p.m., May 23. The next day the Baldrock
left the Mystic dock at 7:05 a.m., and proceeded to Snyder's coal dock,
and left the coal dock at 3:20 p.m. the same day (May 24) going to the
shipyard at East Boston for slight repairs. While at this shipyard, on
May 24, G was paid off by the master and left the vessel.
ROBERT M. CHARLES, member, dissenting.
This matter came before this Board by reason of an appeal from the
decision of the Assistant Commissioner of Immigration and Naturalization
dated March 24, 1949, wherein fine in the amount of $1,000 was imposed
against the Eastern Transportation Co., owners of the S.S. Baldrock,
which vessel proceeded from Rockland, Maine, to Boston, Mass., at which
place the vessel called on May 23, 1946. Prior thereto, the vessel
arrived at Rockland, Maine, from Nova Scotia, Canada. Fine in this case
was imposed under the provisions of section 20 of the Immigration Act
approved May 26, 1924 (8 U.S.C., sec. 167). The specific violation
complained of is that there was a failure to detain on board the
aforementioned alien seaman E G , who was employed aboard the said
vessel, until he was inspected by an officer of the Immigration and
Naturalization Service.
I cannot agree with the determination of the majority of the Board of
Immigration Appeals.
The record also indicates that a notice of liability for fine under
the immigration laws was served on the Eastern Transportation Co. for
violation of section 36 of the act of February 5, 1917, for failure to
list the alien, E G , on crew list. This proceeding, however, is not
part of the present consideration.
In a report dated March 10, 1948, it is stated by an immigrant
inspector of the Immigration and Naturalization Service, Baltimore, Md.,
that the records of the Eastern Transportation Co. checked on March 9,
1948, disclose:
On May 9, 1946, the Baldrock left New York for Hantsport, Nova
Scotia, arriving there on May 14, leaving on the same date for
Rockland, Maine, arriving there May 17, left on the same date for
Hantsport, Nova Scotia, arriving on the 19th, returned to
Rockland, Maine, arriving on the 22d, then on to Boston, Mass.,
where it arrived May 23, 1946. It was towing barges and may have
had one containing gypsum.
The record shows that one E R G was born in Channel, Newfoundland, on
May 3, 1897. In a report of investigation dated March 8, 1948,
conducted by an immigrant inspector of the Immigration and
Naturalization Service, New Bedford, Mass., it is stated that E R G
alleged that he entered the United States in August 1944. He admitted
that he last arrived at Boston, Mass., on September 23, 1946, as a
member of the crew of the tug Baldrock. He was thereafter taken into
custody by the Service. It appears that he was the subject of a prior
deportation proceeding during the month of January 1946.
In an affidavit attached to and made part of the record, A C S , sets
forth that he had been the master of the tug Baldrock for a considerable
period of time prior to May 11, 1946, engaged in coast wise trade and
that on May 11, 1946, he arrived at Boston, Mass. On that occasion, he
was short one seaman and G boarded the tug on that day. The master was
too busy to interview G until the "tow' was safely under way, when G was
called to the master's room aboard the boat. This seaman was not
formally signed on the articles of the vessel until after the
customhouse had closed.
Upon interrogation, G alleged that he was a citizen of the United
States and he thereupon told the master that he had lost his papers of
identification as well as his certificate of naturalization. It would
appear that thereafter G continued aboard the vessel. The tow docked at
Nova Scotia, May 14, 1946, departed for Rockland, Maine, May 16, arrived
May 17, and departed the same day for Nova Scotia. On May 21, 1946, the
tow left Nova Scotia for Rockland, Maine, arrived at that place on May
22, 1946, and thereafter proceeded to Boston, Mass., where the vessel
arrived on May 23, 1946, as hereinabove set forth.
There is some confusion as to the exact time of calling at Boston,
Mass. On one occasion, it is set forth that the vessel arrived at 2 a.
m. and was boarded by an immigration officer at 6:20 p.m. During the
course of an interrogation on May 4, 1948, it was stated that the vessel
arrived at Boston, Mass., on May 23, 1946, at 5:40 p.m., and thence
proceeded to the Mystic dock at 6:20 p.m.; that on May 24, 1946, the
vessel proceeded to the shipyard for repairs.
It is further set forth in this hearing that on May 24, 1946, G asked
the master for an advance against his wages, and it appearing that G was
under the influence of liquor, the master refused to comply with his
wishes, but later paid him in full and discharged him prior to the
vessel being boarded by an immigrant inspector. In this connnection, it
is set forth that the immigrant inspector did not board the vessel until
3 p.m., May 24, 1946.
Counsel in brief, as well as in his oral representation before this
Board, referred particularly to the long delay on the part of the
Immigration and Naturalization Service in having an officer aboard the
vessel. Emphasis is placed upon the assertion of the seaman here
involved to the effect that he was employed on board the vessel in the
United States, on which occasion he alleged that he was a citizen of
this country, and that he was returned to the port at which he was
engaged, and subsequently discharged as a citizen of the United States.
It is of some importance that the tug in charge of the master as
aforesaid had theretofore been engaged in coastwise shipping, and that
there were a number of arrivals at Rockland, Maine, from Nova Scotia,
Canada, prior to the time when the tug and tow called at that port on
the voyage in question.
It is quite true that there was no inspection of the crew at
Rockland, Maine, despite the fact that section 16 of the Immigration Act
of February 5, 1917 (8 U.S.C., sec. 152) provides:
All aliens arriving at ports of the United States shall be
examined by at least two immigrant inspectors at the discretion of
the Attorney General, and under such regulations as he may
prescribe * * *.
One question presented is whether or not the call at Boston, Mass.,
following arrival at Rockland, Maine, in the circumstances herein set
forth may be considered on "arrival from any place outside the United
States' so as to establish a violation of section 20 of the Immigration
Act of May 26, 1924 (8 U.S.C., sec. 167). That section provides in part
as follows:
The owner, charterer, agent, consignee, or master of any vessel
arriving in the United States from any place outside thereof who
fails to detain on board any alien seaman employed on such vessel
until the immigration and naturalization officer in charge at the
port of arrival has inspected such seaman (which inspection in all
cases shall include a personal physical examination by the medical
examiners), or who fails to detain such seaman on board after such
inspection or to deport such seaman if required by such
immigration and naturalization officer of the Attorney General to
do so, 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 seaman in respect of whom such failure occurs. No
vessel shall be granted clearance pending the determination of the
liability to the payment of such fine, or while the fine remains
unpaid, except that clearance may be granted prior to the
determination of such question upon the deposit of a sum
sufficient to cover such fine, or of a bond with sufficient surety
to secure the payment thereof approved by the collector of
customs. The Attorney General may, upon application in writing
therefor, mitigate such penalty to not less than $200 for each
seaman in respect of whom such failure occurs, upon such terms as
the Attorney General in his discretion shall think proper. This
section, as amended, shall apply to all penalties arising
subsequent to June 5, 1940.
The master of the tug Baldrock was interrogated at Norfolk, Va., on
March 15, 1948, under oath, at which time he stated that the tug arrived
at Rockland, Maine, on May 22, 1946, at 2:10 p.m., that they picked up
the barge Crummet and departed from Rockland, Maine, at 2:45 p.m., "in
tow to Boston, Mass.' He further indicated that the vessel was not
inspected at that time by an immigration officer. The testimony of this
master is as follows; and relates to a period immediately subsequent to
calling at Boston, Mass.
Q. Was E G on board at that time?
A. Yes.
Q. Was he examined and cleared by the United States
Immigration?
A. Yes.
The master was further interrogated on May 4, 1948, and at that time,
he again stated that he arrived at Rockland, Maine, with one barge, that
the tug proceeded to shore, and that when he departed from Rockland,
Maine, he had two barges in tow, one of which barges he picked up at the
anchorage ground in Rockland, Maine.
8 C.F.R., section 110.1 shows that Rockland, Maine, is designated as
a class (c) port of entry: "Class C means that the port is a designated
port of entry only for aliens who are arriving in the United States as
seamen as that term is defined in the last sentence of section 1 of the
Immigration Act of February 5, 1917 (39 Stat. 874; 8 U.S.C., sec.
173).'
Section 1 of the act of February 5, 1917 (supra) defines the term
"seaman' as used in this act to include every person signed on the
ship's articles and employed in any capacity on board any vessel
arriving in the United States from any foreign port or place. Italics
supplied.
8 C.F.R., section 120.3 defines "arriving' as follows:
Arriving in the United States from any foreign port or place
means arriving in the United States in any waters, territory, or
other place subject to the jurisdiction thereof, except the
Isthmian Canal Zone from any port or place in a foreign country or
in the Canal Zone * * *.
8 C.F.R. section 120.5. Arrival in ports defined:
The expression "arrival in ports of the United States' (act of
Dec. 26, 1920 (41 Stat. 1082; 8 U.S.C. 170)), shall be taken to
mean arrival at ports in the United States from a foreign port or
place. If a vessel arrived foreign at a port of the United States
and later on the same voyage touches at other ports of the United
States, she will for the purpose of this definition be regarded as
arriving foreign at such other ports.
Of some assistance in the practice of the Immigration and
Naturalization Service is 8 C.F.R., sec. 120.10, which section provides:
When a vessel calls at several United States ports the list of
arriving seamen, required by section 36 of the Immigration Act of
1917 (39 Stat. 896; 8 U.S.C. 171), shall be delivered to the
official in charge at the port of arrival, who will give his
receipt therefor to the master; the report of illegal landings
required by said section shall be made to the official in charge
at the port of arrival or call where the illegal landing occurs;
and the list of departing, deserted, and landed seamen required by
said section shall be delivered to the official in charge at each
port of call. The official in charge at any port of call or final
clearance foreign shall promptly notify the official in charge at
the port of initial entry (where the incoming crew list is filed)
of any and all changes occurring in the crew of any vessel
subsequent to departure from such initial port to arrival; and
such report shall be filed with the crew list to which it refers.
Thus, it will be seen that the foregoing regulations require an
examination of all arriving seamen employed on board the vessel to be
inspected at the initial port of arrival.
The evidence of record seems to indicate, "According to our official
log, we arrived at Rockland Harbor at 9:30 a.m., on May 30, 1946 * * *.
We were examined by United States Customs and Immigration by Inspector W
L J , and left for Nova Scotia on the same date at 3:10 p.m., with the
barge Cohasset in tow.'
Thus it will be seen that in one instance there was an inspection of
the crew, and in the other instance, the master seems to indicate that
the crew was not inspected. Why the vessel was not inspected at the
time of arrival in question from Canada at Rockland, Maine, on May 26,
1949, is only explained by the brief stay at that port and perhaps by
reason of local practice; but the fact remains that the vessel arrived
at the port of Rockland, Maine, from Nova Scotia, Canada, and picked up
a tow at that port.
Obviously, the principal question thus presented is, did the vessel
arrive at Boston, Mass., from a place outside the United States? The
testimony clearly establishes that the vessel arrived at Boston, Mass.,
from Rockland, Maine, subsequent to which time the alien seaman was paid
off.
The practice of the Immigration and Naturalization Service is
indicated in the Immigration Manual, and while this manual has no force
or effect of law, it may be helpful in the instant case.
An alien employed on a vessel arriving from a foreign port or
place is subject to inspection, even though he signed on or joined
the vessel in the United States under conditions that required the
master to return him to this country, or did not go ashore in any
foreign port.
Section 882.32 of the Manual provides in part --
* * * When a vessel calls at several United States ports, the crew
list must be delivered to the immigration officer in charge at the
first port of arrival who will give his receipt therefor to the
master * * *
A penal law such as section 20 of the act approved May 26, 1924 (8
U.S.C. sec. 156) is primarily intended to regulate the conduct of the
persons therein specified within the scope of their responsibility.
"That penal statutes are to be strictly construed has become a maxim of
law * * *' (vol. 2: Lewis Sutherland, Statutory Construction, p. 963).
Moreover, "a penal law must be construed strictly and according to its
letter.' "A penal statute cannot be extended by implication or
construction.'
Thus the evidence of record seems clear that the tug arrived at
Rockland, Maine, from Nova Scotia, Canada, and from Rockland, Maine, the
tug, with its several tows, proceeded to Boston, Mass. The port of
Rockland, Maine, is designated a port of entry for alien seamen as
hereinabove set forth. To assert that the vessel arrived from a place
outside the United States at Boston, Mass., when, in fact, the vessel
arrived at the latter mentioned place from a port in Maine, would be
extending the true facts by implication and such extension would be
contrary to statutory construction of a penal statute. To say the
least, in addition to the foregoing, there is considerable confusion in
the record sufficient to create doubt.
While I agree that there exists an irregularity not only as to the
circumstances in which the alien seaman was employed and later joined
the vessel during the time he was in the United States, but there is a
further irregularity in the circumstances in which he returned to this
country. I recognize fully that there was a failure on the part of the
Immigration and Naturalization Service in Rockland, Maine, to accord the
alien members of the crew of the tug Baldrock an inspection for which
purpose officers should have been detailed to make the necessary
inspection, yet following closely the letter of the law as set forth in
section 20 of the Immigration Act of May 26, 1924, there is considerable
doubt predicated upon the facts in the case as to whether the tug
Baldrock may be considered as arriving from a foreign port or place at
Boston, Mass., when, in fact, she arrived from Nova Scotia, Canada, at
Rockland, Maine, and thereafter called at Boston, Mass.
It is therefore my opinion that a violation of section 20 of the
Immigration Act of May 26, 1924 (supra) is not established.
Citizenship -- Acquisition by statutory declaration -- Interpretation of section 1(d), act of February 25, 1927, as amended by section 5, act of June 28, 1932 -- Child born out of wedlock abroad (April 1917) -- Mother born in United States Virgin Islands (1897), father naturalized before marriage in 1919 -- Eligibility for certificate of naturalization under section 339 of the Nationality Act of 1940, as amended.
1. Where a mother born in the Virgin Islands in 1897 (later United States Virgin Islands) acquired United States citizenship through marriage to a United States citizen in 1919 (R.S. 1994) (and in whose case the act of Feb. 25, 1927, section 1(d), was not applicable merely because of her acquisition of United States citizenship in 1919), her child born out of wedlock abroad in April 1917 (who was admitted to the United States as a citizen in 1926 and remained here since) is deemed to have been the child of a native of the Virgin Islands such as described in section 5 of the act of June 28, 1932, and to have been declared to be a citizen of the United States by section 1(d) of the act of February 25, 1927, as amended by section 5 of the act of June 28, 1932.
2. Such acquisition of citizenship does not entitle the subject to a
certificate of citizenship, under the provisions of section 339 of the
Nationality Act of 1940, as amended.
Discussion: The subject was born out of wedlock in San Jose, Costa
Rica, on April 25, 1917. His mother was born in St. Croix, V.I. of the
United States on January 5, 1897, and on September 6, 1919, was married
to his father, a United States citizen who had been naturalized in the
United States District Court at New Orleans, La. on April 19, 1919. The
subject was admitted to the United States as a United States citizen at
New York, N.Y. on September 16, 1926. On two occasions, November 6,
1943, and October 3, 1947, applications for certificates of citizenship
in which the subject claimed to have derived United States citizenship
through the father's naturalization were denied because it was concluded
the subject could not have derived United States citizenship under
section 5 of the act of March 2, 1907, through his father's
naturalization until after he had been lawfully admitted into the United
States for permanent residence. His admission as a United States
citizen without an immigration visa in 1926 cannot be considered such an
admission.
Having served in the United States Army during World War II, the
subject filed a petition for naturalization under section 324A of the
Nationality Act after his applications for a certificate of citizenship
were denied. However, the investigation in connection with his petition
disclosed that he had been a member of the International Workers Order
Flying School at Floyd Bennett Field in 1941. Inasmuch as under
outstanding Central Office instructions all petitions for naturalization
wherein the petitioners are or have been members of the International
Workers Order are not to be presented to the court for a final hearing
until further notice it appears that no final hearing can be held on the
subject's petition at this time. The subject was an employee of the
United States Post Office Department for several years but recently lost
his position because he is unable to establish his United States
citizenship.
It is to be noted that the subject's mother was born in the Virgin
Islands of the United States. The question has arisen whether the
subject may have been declared to be a United States citizen under
section 1(d) of the act of February 25, 1927, as amended by section 5 of
the act of June 28, 1932.
That section reads as follows:
That the following persons and their children born subsequent
to January 17, 1917, are hereby declared to be citizens of the
United States:
All natives of the Virgin Islands of the United States who are,
on the date of enactment of this subsection, 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 (47 Stat. 336; 8 U.S.C. 5b).
The investigation in this case has established that the subject's
mother was born in the Virgin Islands of the United States; that she
was living in the United States on the effective date of the amendment
to the section; and that on that day she was not a citizen of a foreign
country. It would appear, therefore, that she could be within the
contemplation of section 1(d) of the act of February 25, 1927. However,
the act states in part "the following persons * * * are hereby declared
to be citizens of the United States.' The subject's mother married a
citizen of the United States in 1919 and acquired United States
citizenship by that marriage under section 1994 of the Revised Statutes
of the United States. Being a citizen of the United States since that
date the act of 1927 was inapplicable to her and she was not "a person'
declared to be a citizen of the United States by it. The question
remains was the subject, who was born subsequent to January 17, 1917,
contemplated by the expression "the following persons and their
children,' notwithstanding that the parent was not declared a citizen of
the United States by that act, as she was already a citizen.
Apparently this Service has not previously considered that question.
Along that line, however, the United States Department of State has
issued the following instructions in connection with passport
instructions:
Children of persons who acquired citizenship under section 1,
act of February 25, 1927. -- Under the act of February 25, 1927,
children born subsequent to January 17, 1917, of any of the
persons who acquired American citizenship under the provisions of
section 1 of the Act of February 25, 1927, were declared to be
citizens of the United States, regardless of the place of their
birth (Abstract of Passport Laws and Precedents, Passport Division
Office Instructions, Section VI, Code 6.7).
It is apparent from that instruction that the Department of State
interprets section 1 of the act of February 25, 1927, as granting United
States citizenship to the children of persons who acquired citizenship
under the act. However, the instruction makes no reference to the
children of natives of the Virgin Islands who did not acquire
citizenship under that act, and therefore, may not be cited as the
Department of State's views on the problem.
The language of the act is ambiguous in that it is difficult to
determine whether Congress contemplated two entirely separate sets of
persons who would be declared citizens of the United States by the act,
namely, one, certain natives of the Virgin Islands, and, two, the
children of those natives or whether Congress merely intended to declare
certain natives of the Virgin Islands to be citizens of the United
States and at the same time declare the children of the persons who thus
acquired citizenship to be United States citizens. In the absence of
any previous decisions in the matter by this Service it becomes
necessary to study the various committee reports and debates of Congress
while considering the act to learn the congressional intent in passing
such legislation. An inspection of those reports discloses that
Congress was concerned with the fact that from the time the United
States acquired the Virgin Islands the citizenship status of the natives
of those islands was in doubt. To rectify the situation the act of
February 25, 1927, was enacted. All the debates on the bill prior to
the passage of that act were concerned with the natives of the Virgin
Islands. Other than in the wording of the act itself no reference is
made in the various debates to children of the natives except in a
report that was introduced in a debate on February 16, 1927. That
report reads in part as follows:
With this object in view, the passage of S. 2770 is
recommended:
Section 1 provides that all former Danish citizens who have
continued to reside in the Virgin Islands or in the United States
and who did not preserve their Danish citizenship under the terms
of article 6 of the convention, and also all natives of the
islands who were temporarily absent at the time of the cession and
who have since returned and now reside in the islands, and their
children born subsequent to the date of transfer of sovereignty
from Denmark to the United States, shall be citizens of the United
States (p. 3982, vol. 68, pt. IV, Cong. Rec.).
There are no reported debates on section 5 of the act of June 28,
1932, which after its enactment became section 1(d) of the act of
February 25, 1927. However, in a Senate report on that bill, the
following was stated:
The following analysis explains the citizenship situation and
indicates the reason for this bill being enacted at this time:
(A) By the treaty of cession Danish citizens and natives of the
Virgin Islands who were residing in these islands on January 17,
1917, and who did not elect to preserve their Danish nationality
within 1 year, became "citizens of the Virgin Islands entitled to
the protection of the United States.'
(1) Practically all natives believed that, if they did not make
declaration within 1 year to retain their Danish citizenship, they
became citizens of the United States.
(B) To correct this confusion, Congress on February 25, 1927,
declared the following persons were granted full United States
citizenship:
(1) Former Danes who resided in the Virgin Islands on January
17, 1917, who did not retain their Danish nationality and who
resided in the Virgin Islands, the United States, or Puerto Rico
on February 25, 1927.
(2) Natives of the Virgin Islands who resided in the Virgin
Islands on January 17, 1917, who did not retain their Danish
nationality and who resided in the Virgin Islands, the United
States, or Puerto Rico, on February 25, 1927; and their children
born after January 17, 1917.
(3) Natives of the Virgin Islands who resided in the United
States on January 17, 1917, and who resided in the Virgin Islands
on February 25, 1927; and their children born after January 17,
1917.
(4) Persons born in the Virgin Islands on or after January 17,
1917, and who were subject to the jurisdiction of the United
States on February 25, 1927.
(C) The act of Congress of February 25, 1927, further provided
the privilege of naturalization, if applied for prior to February
25, 1928, to the following natives of the Virgin Islands:
(1) Natives of the Virgin Islands who resided either in the
Virgin Islands on January 17, 1917, and who resided either in the
Virgin Islands or in the United States or in Puerto Rico on
February 25, 1927.
(2) Natives of the Virgin Islands who resided in the United
States on January 17, 1917, and who resided either in the United
States or in Puerto Rico on February 25, 1927.
(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 onJanuary 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.
Notwithstanding the legislation contained in the acts referred to,
there still remains considerable confusion, especially with regard to
the present status of (1) natives of the Virgin Islands who are on
current date residing in territory of, and territory under the
jurisdiction of, the United States, other than Puerto Rico, the Virgin
Islands, and the United States proper, i.e., the States and the District
of Columbia, and (2) natives of the Virgin Islands who are on current
date residing in any territory under the jurisdiction of any other
nation than the United States (S. Rept. No. 641, 72d Cong., 1st sess.,
Senate Repts., vol. II).
It would appear from the punctuation in the paragraphs numbered 2 and
3 of part B of that Senate report that the Senate considered the natives
and their children as separate groups, both of which were declared to be
citizens of the United States by the act of February 25, 1927. The
report did not in any way indicate that only the children of those
natives who acquired citizenship were included in the act. The same
impression is received from the afore-mentioned report that was
introduced in the House debate on February 16, 1927. It is significant
the Senate report did not mention children of natives in its discussion
of the need for additional legislation to include certain natives who
were not granted citizenship by the act of February 25, 1927. Being
aware of the import of that act and by making section 5 of the act of
June 28, 1932, an amendment to section 1 of the act of February 25,
1927, rather than a separate section of the act it must be concluded
that Congress intended the significance of section 1 of the act of
February 25, 1927, to be applied to the amendment of June 28, 1932, so
that both the natives of the Virgin Islands named in the act of June 28,
1932 and their children were declared to be citizens by that act.
Further support is given to this view by the interpretations that
have been placed on section 7 of the act of April 12, 1900, which
conferred Puerto Rican citizenship on natives of Puerto Rico. That act
read in part as follows:
That all inhabitants continuing to reside therein who were
Spanish subjects on the 11th day of April, 1899, and then resided
in Puerto Rico, and their children born subsequent thereto, shall
be deemed and held to be citizens of Puerto Rico, and as such
entitled to the protection of the United States, except such as
shall have elected to preserve their allegiance to the crown of
Spain on or before the 11th day of April, 1900, in accordance with
the provisions of the treaty of peace between the United States
and Spain entered into on the 11th day of April, 1899 . . .
It will be noted in the phrase "and their children born subsequent
thereto' contained in that act is very similar to the phrase "and their
children born subsequent to January 17, 1917', which appears in the act
of 1927 relating to the Virgin Islands. The Puerto Rican Act, it is to
be noted, excepts from its provisions those persons who elected to
preserve their allegiance to Spain. The Secretary of State on December
21, 1899, in discussing the status of children whose fathers elected to
preserve Spanish allegiance under that act, expressed the opinion that
the status as Spanish subjects of natives of the island could not be
preserved or established by a declaration of the Spanish father
(Hackworth Digest of International Law, vol. III, p. 142).
From that opinion, it would appear the Secretary of State considered
the Spanish subjects who were inhabitants of Puerto Rico on April 11,
1899, and who had the right to preserve Spanish allegiance, as being one
group within the contemplation of the act, and their children as another
group. Accordingly, a Spanish father could retain Spanish nationality
and his child could be a citizen of Puerto Rico. The logical conclusion
from that state of facts is that the child took Puerto Rican citizenship
under the act and not through his father. Inasmuch as the two groups
are recognized, and, as indicated in the foregoing, inasmuch as the
language of the Puerto Rican Act and the Virgin Island Act in reference
to children is very similar, it is believed that two separate groups may
be recognized in the act of 1927 relating to the Virgin Islands.
Since it has been established that the subject's mother was included
in the description of natives of the Virgin Islands, appearing in
section 5 of the act of June 28, 1932, it must be concluded that the
subject, a child of such a native, was declared to be a citizen of the
United States by section 1(d) of the act of June 25, 1927, as amended by
section 5 of the act of June 28, 1932. In the absence of any evidence
of the subject's expatriation it must be further concluded that the
subject is a citizen of the United States. However, inasmuch as the act
of February 25, 1927, is not included in the provisions of section 339
of the Nationality Act of 1940, as amended, the subject may not be
issued a certificate of citizenship.
It is recommended that a copy of this memorandum be forwarded to the
district director, New York, N.Y.
So ordered.
Seaman -- Recent arrival -- Policy as to discretionary relief.
In the absence of dependent ties here or other factors presenting an appealing basis for the grant of discretionary relief, it is the policy to deny such relief to recently arrived seamen for the reason stated in the opinion below.
CHARGE:
Warrant: Act of 1924 -- Remained longer -- Transit.
Discussion: Respondent is a native and citizen of Italy, age 34
years. His only entry into the United States was at the port of New
York on February 12, 1948, as a plane passenger, when he was admitted as
an alien in transit in order to reship as a member of a crew. He
accepted employment and has lived and worked ashore since that time.
The Assistant Commissioner denied his application for voluntary
departure and preexamination and ordered that he be deported to Italy.
In oral argument before this Board counsel asked that respondent be
permitted to remain in the United States an additional 2 months in order
that he might save enough money to enable him to finance his departure
himself.
This record presents no basis for a grant of discretionary relief of
any kind. It has been the policy of this Board to deny voluntary
departure to all recently arrived seamen (Matter of D , 9747470 (Mar.
9, 1949); Matter of A , 9777131 (Mar. 3, 1949); Matter of I , 9777377
(Oct. 14, 1949)). Unless there is some penalty attached to the
overstaying of leave on the part of a seaman, it would be impossible for
the Immigration Service to enforce regulations governing seamen.
Respondent did not abide by the terms of his admission to the United
States. No one will suffer economic detriment as a result of his
deportation. He has no wife, children, or other dependents in the
United States. His mother, wife, and children live in Italy.
Order: It is ordered that the alien's application for voluntary
departure be denied.
It is further ordered, That the appeal be and it hereby is dismissed.
Delivery bond -- Section 20, Immigration Act of February 5, 1917 -- Responsibility of indemnitor or surety to deliver the alien when demanded for deportation -- Defense that alien surrendered himself later -- Defense that order of deportation was invalid.
1. A delivery bond was declared breached after formal demand had been made on the surety to deliver the alien for deportation, and the alien had not been surrendered; the fact that the alien later surrendered himself (and was deported is no excuse for the failure to surrender the alien upon demand; nor is a failure to produce the alien on demand excusable merely because the alien may not be deportable under the order issued against him.
2. An alien's recourse to test the validity of an order of deportation is to the administrative authorities and to the courts; he cannot resolve such issue by absconding.
3. An alien deported on December 1, 1949, is considered to have been
deported "pursuant to law,' though the warrant hearing was not held in
conformance with the provisions of the Administrative Procedure Act of
1946. The law of a case is determined or fixed as it was at the time of
the deportation and subsequent interpretation of the law cannot be
pleaded to vitiate a former order. Sung v. McGrath was decided by the
Supreme Court on February 20, 1950. (See 3, I. & N. Dec. 605, 83.)
Discussion: On May 11, 1948, a delivery bond in the sum of $1,000
was executed in behalf of the alien and he was released pending the
outcome of the deportation proceedings which had been instituted
against him. The surety on the bond was the National Surety Co. of
New York. On Augus 12, 1949, formal demand was made on the surety
company to deliver the alien into the custody of the New York
office on August 22, 1949, for deportation. The alien was not
surrendered. On August 30, 1949, a letter was directed to the
surety company advising of the failure to deliver the alien as
directed and granting a period of 10 days within which to submit
representations as to why the bond should not be declared
breached. No response was received to the letter. On October 28,
1949, an order was entered declaring the bond breached and
directing that appropriate steps be taken looking to the collection
of the penalty thereunder.
Counsel for the indemnitor has requested that the order declaring
the bond breached be withdrawn and that the bond be canceled. In
connection with this request he has submitted an affidavit of the
indemnitor, in which the indemnitor states that during June 1948 he
left for Portugal where he remained until July 1949; that upon
return to the United States he did not get in touch with the
National Surety Corp. because of other pressing matters of a
compelling nature which he had to take care of immediately; that
the National Surety Co. depended upon him to produce the alien when
demand was made upon him by the Immigration Service; and that
because of his absence from the United States, the National Surety
Co. was unsuccessful in contacting the alien. The indemnitor goes
on to say that on November 2, 1949, immigration officers came to
his house and sought information concerning some people and that at
that time he turned over to them the above-named alien who had
contacted in the meantime for the purpose of surrendering him. The
indemnitor feels that the penalty of $1,000 which is being exacted
is unfair and unwarranted, and that his failure to produce the
alien at the designated time was entirely excusable.
It is noted that demand was not made upon the surety company until
August 12, 1949, at which time the indemnitor was back in the United
States. He then had until August 20, 1949, to produce him and could
easily have done so if he knew the alien's location. As the field
office points out it was the duty of the indemnitor to keep apprised of
the alien's whereabouts and his failure to do so would not relieve him
or the surety company from the responsibility of delivering the alien
when demanded.
Delivery bonds are exacted to insure that aliens will be produced
when required by this Service for hearings or deportation. They are
necessary in order that the Service may discharge its functions in an
orderly manner. The courts have taken cognizance of the confusion which
would result if aliens could be surrended at any time it suited their or
surety's convenience. In Picinich v. Miller (1949) Civil Action 10074,
a case which arose in the United States District Court for the Eastern
District of Pennsylvania, the court had before it a petition for review
of an order entered by this Service declaring a delivery bond breached.
In that case the alien had been released under a delivery bond in the
sum of $500. Surety was notified to have the alien appear for a hearing
before the Philadelphia office of this Service. He was not produced.
Sometime later the alien voluntarily surrendered himself. In support of
the petition for review the alien made a number of contentions as to why
the bond should not have been declared breached. The court disposed of
the pertinent one in the following language:
The final contention of petitioner is that his failure to
appear should be excused on the ground that he subsequently
surrendered himself to the Immigration and Naturalization Service
and executed another delivery bond. We are not inclined to accept
this contention for to do so would upset the administration of the
immigration and naturalization laws. Officials of the Bureau
could not depend on attendance at hearings of persons charged with
the violation of immigration and naturalization laws. Such
persons could disregard or ignore notices of hearings with
impunity secure in the knowledge that the penalty provided for in
their delivery bond could not be forfeited for such action on
their part.
The same reasoning would, of course, apply in the case of an alien
who had not been produced for deportation. We find that counsel's
request has no merit and it should be denied.
Recommendation: It is recommended that no change be made in the
outstanding order of October 28, 1949, declaring the delivery bond
breached and directing that appropriate steps be taken looking to the
collection of the penalty thereunder.
So ordered.
Discussion: On May 11, 1948, a delivery bond in the sum of $1,000
was executed in behalf of L and he was released pending the outcome of
the deportation proceedings which had been instituted against him. On
March 9, 1949, the Board of Immigration Appeals dismissed his appeal
from an order of this Service directing that he be deported to Portugal.
No question was then raised as to the validity of the order of
deportation. On August 12, 1949, formal demand was made on the surety
to deliver L to the custody of the New York office on August 22, 1949,
for deportation. He was not surrendered. On October 28, 1949, an order
was entered declaring the bond breached and directing that appropriate
steps be taken looking to the collection of the penalty thereunder. L
was subsequently taken into custody and was deported on December 1,
1949. On January 31, 1950, an order was entered denying counsel's
motion that the order declaring the bond breached be withdrawn and that
the bond be canceled.
Counsel has again requested reconsideration. On February 27, 1950,
he addressed the following letter to this Service:
I have your decision of January 31, 1950, in the above matter.
In view of the case of Sung vs. United States, it is obvious that
deportation proceedings against the above-named were improperly
held.
Upon the basis of these hearings, a warrant of deportation was
issued. There is no question but that the warrant had no force
and effect.
It is, therefore, contended that the failure to appear for
deportation at the designated time could not result in forfeiture
of a bond predicated upon an ineffective order.
It is requested, therefore, that your instructions with
reference to a forfeiture of the bond be withdrawn and that the
indemnitor thereon be released from any liability.
In the case referred to by counsel, /1/ the Supreme Court of the
United States reversed the United States Court for the District of
Columbia and the Court of Appeals in their interpretation of the
Administrative Procedure Act of June 11, 1946, by holding that
deportation proceedings must conform to its requirements. Until the
Supreme Court's decision this Service and a majority of the courts were
of the opinion that the Administrative Procedure Act was inapplicable to
deportation proceedings. It is conceded that the hearing which led to L
's deportation was not held in conformance with that act.
Counsel is making a collateral attack on L 's deportation when he
advances, what, in effect, is a contention that the Supreme Court's
decision has a retrospective application, and that the entire proceeding
which led to the breach of the bond had no validity.
The courts have faced similar situations where after an adverse
decision has been reached and accepted in one case, a similar case goes
before a higher court on appeal and is reversed because of a change in
interpretation by law. One such case is Warring v. Colpoys, 122 Fed.
642 (1949) certiorari denied Nov. 10, 1941). /2/ In that case Warring
had been convicted on February 24, 1939, of contempt of court, following
a plea of guilty in a United States District Court. Thereafter in 1941
in another case (Nye v. U.S., 61 S.Ct. 810 (1941)) in which the facts
were similar, the matter went to the Supreme Court of the United States
which held that the acts which were done did not constitute contempt.
Warring then applied for writ of habeas corpus on the basis that he had
been improperly convicted. The Government, in effect, conceded that if
Warring's case had arisen after the Supreme Court's decision he would
not have been convicted. The writ was dismissed in the District Court
and Warring appealed. The Court of Appeals rhetorically asked the
following question:
Is one entitled to a discharge under a writ of habeas corpus
where the court had power under the statutory construction to
punish his acts in a criminal contempt proceeding at the time the
acts were done and the sentence imposed, the court not having such
power under a new statutory construction at the time the writ of
habeas corpus was filed?
In answer the court pointed out, in effect, that the doctrine of res
judicata was applicable, and then went on to say:
We believe that appellant is not entitled to discharge upon the
habeas corpus writ. The District Court had the power to sentence
him in a criminal proceeding in 1939. The Nye case of 1941 should
not be applied so as to sweep away that power as of 1939.
It is true that the decisions of this Service cannot constitute res
judicata in a technical sense. /3/ However, the same considerations
which have impelled the courts to employ a strict rule of res judicata
are present in deportation cases. Thus, when aliens have been deported
or for other reasons are no longer within the jurisdiction of this
Service, the decision in their cases must be considered final and direct
or collateral attacks rejected; otherwise there would be no end to such
cases. There have been many cases where aliens were deported under
certain provisions of the immigration laws and subsequently changes were
made in the interpretations to be given those provisions either by the
courts or by the administrative authorities, /4/ which would have
prevented such deportations, but no one has ever successfully contended
that such aliens were not deported "in pursuance of law.' Indeed, in a
recent case /5/ where the issue was raised, the Board of Immigration
Appeals pointedly remarked:
The facts in the * * * case more than satisfy the rules laid
down by most of the courts, until the decision in Tan v. Phelan,
supra. Respondent had to be deported "in pursuance of the law,'
and he was so deported. The law of a case is determined or fixed
as it was at the time of the deportation. Subsequent laws or
interpretation of laws cannot be pleaded to vitiate a former
order. As was said in U.S. ex rel. Koehler v. Corsi, 60 F.(2d)
123 (C.C.A.2d, 1932),
"* * * It is now too late to attack that deportation as one not
in pursuance of law.'
It is, therefore, concluded that L was deported in pursuance of law
and that the legality of such deportation is not open to direct or
collateral attack. The logical corrollary to this is, of course, that
the order upon which his deportation was predicated was valid. With
this in mind consideration may now be given to the factors involved in
the breach of the bond.
Section 20 of the Immigration Act of February 5, 1917, provides,
among other things:
Pending the final disposition of the case of any alien * * *
taken into custody, he may be released under bond and the penalty
of not less than $500 with security approved by the Attorney
General, conditioned that such alien shall be produced when
required for a hearing or hearings in regard to the charge upon
which he has been taken into custody, and for deportation if he
shall be found to be unlawfully within the United States. Italic
added.
The terms of the bond were couched in the language of the statute.
It is to be noted that the condition precedent to a demand for
production for deportation is a finding that the alien is unlawfully
within the United States. At the time demand was made on surety to
produce L such finding had been made and an order to that effect had
been entered. Since such order was valid, the demand based on that
order was proper, and the failure of the surety to produce L for
deportation breached the conditions of the bond.
It might also be pointed out that even if it were to be assumed, as
counsel has done, that the order of deportation was ineffective, the
bond could still properly have been declared breached. Thus, with
respect to bail bonds /6/ merely because
* * * the indictment or information is defective, or the
principal innocent, or the fact that prosecution against the
principal is barred by the statute of limitations, have been held
to constitute no defense to an action on a bail bond or
recognizance as the sureties' undertaking was to answer for their
principal's appearance, and these matters have nothing to do with
his failure to appear, constituting a breach of the condition. It
has also been held that the fact that the indictment was quashed
is no defense, where the judgment of forfeiture was entered before
the indictment was quashed. /7/
Similarly, because an alien may not be deportable under the order
issued against him would not excuse the surety's failure to produce him.
The surety is bound by the terms of the bond, cannot determine whether
such alien has been legally ordered deported, and must produce him on
demand. The alien's recourse thereafter would be to the administrative
authorities and the courts. He cannot resolve the issue by absconding.
Upon the basis of the foregoing it is found that the order of October
28, 1949, declaring the outstanding delivery bond breached and directing
that appropriate steps be taken looking to the collection of the penalty
thereunder was properly entered and no change should be made therein.
Recommendation: It is recommended that no change be made in the
outstanding order of October 28, 1949, declaring the delivery bond
breached and directing that appropriate steps be taken looking to the
collection of the penalty thereunder.
So ordered.
(1) Sung v. McGrath, No. 154 -- October term 1949; decided Feb. 20,
1950.
(2) See also U.S. v. Kunz, 163 F.(2d) 344 and Sunal v. Large, 67 S.
Ct. 1588 (1947). In the Kunz case the Court made the following comment:
"After Kunz was subject to a decree of denaturalization he took
no appeal. He cannot now employ a bill of review as a substitute
for an appeal even on the ground that the Supreme Court in the
Baumgartner case had charged what was supposed to be the law. As
that court said per Pitney, J., in Simmons Co. v. Grier Bros.
Co., 258 U.S. 82, 88, 42 S.Ct. 196, 66 L.Ed. 475, "a change in the
authoritative rule of law, resulting from a decision by this court
announced subsequent to the former decree, neither demonstrates an
"error of law' apparent upon the face of that decree nor
constitutes new matter in pais justifying a review.' See also
Scotten v. Littlefield, 235 U.S. 407, 411, 35 S.Ct. 125, 59 L.Ed.
289. In Sunal v. Large, 67 S.Ct. 1588, an attempt was made to use
a writ of habeas corpus as a substitute for an appeal. In that
situation Mr. Justice Douglas expressed the same view we are
taking as to the use of a bill of review. His words seem most
pertinent and were as follows: "If defendants who accept the
judgment of conviction and do not appeal can later renew their
attack on the judgment by habeas corpus, litigation in these
criminal cases will be interminable. Wise judicial administration
of the Federal courts counsels against such course, at least where
the error does not trench on any constitutional rights of
defendants nor involve the jurisdiction of the trial court.''
(3) Pearson v. Williams, 202 U.S. 281 (1906).
(4) Tan v. Phelan, 333 U.S. 6 (1948); Perkins v. U.S. ex rel.
Malesevic, 99 F.(2d) 255 (1938); Matter of P , A-1217330 (1946).
(5) Matter of R , A-3844720 (1949).
(6) While it is realized that the statute governing the release under
bond of aliens in deportation proceedings varies widely from those
having to do with the release of persons in criminal proceedings, the
analogy is apparent.
(7) 8 C.J.S. 194.
Citizenship -- Expatriation by naturalized persons by residence abroad -- Section 404 of the Nationality Act of 1940 -- When expatriative period begins to operate -- Exceptions under section 406( c) and (e) of that act.
In the case of a naturalized (1935) person who went to his native country because of ill-health in April 1946, and was ill for a year thereafter, it was held that the 3-year period of residence abroad, which would cause expatriation in his case under section 404(b) of the Nationality Act of 1940, did not begin to run until his recovery (1947), in view of the exemption stated under section 406(c) of that act; and as to his naturalized (1940) wife who went with him to Canada in April 1946, she was deemed to have a similar benefit in view of the exemption stated under section 406(e) of that act.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 -- No immigration visa. Executive Order 8766 -- no
passport.
Discussion: These cases are before us on appeal from an order of
the Assistant Commissioner affirming a decision of a Board of
Special Inquiry excluding the subjects from admission to the United
States on the above-stated grounds.
The appellants, a male, about 54 years of age, born in Canada on
November 29, 1895, and his wife, about 52 years of age, also born in
Canada, entered the United States for permanent residence on March 17,
1923. The husband was naturalized as a United States citizen on
February 11, 1935, in the United States District Court, at Detroit,
Mich., and his wife was naturalized in the same court on July 1, 1940.
On April 6, 1946, the appellants returned to Canada. They disposed
of their home in the United States and purchased a farm in Canada.
The husband left the United States for his health. For the first
year he was in Canada he received medical treatment, but he thereafter
worked on his farm. On August 21, 1949, the appellants sought admission
to the United States as citizens and were excluded as stated above. The
Service has reached the conclusion that the appellants lost their United
States nationality under section 404(b) of the Nationality Act of 1940
by residing for 3 years in the territory of a foreign land of which they
were formerly nationals and in which their place of birth is situated.
The Service also concludes that section 406(c) and (e) of the
Nationality Act of 1940 are not here applicable.
The appellants left the United States on April 6, 1946, and were
residing in Canada at the time of their application for admission on
August 21, 1949. In March 1949 the male applicant turned over his farm
to an agent for sale with the ultimate view of returning to this country
for permanent residence.
The record establishes that the male appellant went to Canada on
account of ill health. For the first year of his residence, that is
until 1947, the record establishes that he was ill. We believe that for
the year he was ill, that section 406(c) applies and that the 3-year
period within which he should return to this country begins to run upon
recovery. Therefore, the appellant was still within the exemption and
is entitled to admission as a United States citizen. Based on the
foregoing, section 406(e) is applicable to the wife and she should be
admitted as a citizen.
Order: It is ordered that the appeal be and the same is hereby
sustained and that the appellants be admitted as United States citizens.
Editor's note. -- In Matter of d (C ), A-7290371, C.O. Oct. 28, 1949,
appeal dismissed B.I.A. Jan. 6, 1950, unreported, a Portuguese,
naturalized here in 1906, returned to Cape Verde Islands (1908-13),
entered here in 1913 as a citizen of Portugal, remained here until 1916,
when he went to Cape Verde Islands where he stayed until May 1949. He
was found to have expatriated under section 404(b) of the Nationality
Act of 1940; his claim to being abroad because of illness was
disallowed (ailment for which treated abroad needed no further treatment
since 1931); failure to return by Oct. 14, 1946, was not found due to
conditions beyond his control.
Immigrant -- Status determined by employment here of a permanent character -- Test.
1. A native/citizen of Candada, employed by the Canadian Pacific R. R. as a telegraph operator, who has exercised his seniority to fill a "bulletined' relief job which provides for 3 days' employment in Canada and 2 days' in the United States, cannot be said to be a temporary visitor for business under the circumstances of this case; he is considered an immigrant since he seeks to enter the United States regularly 2 days each week for an indefinite period to engage in employment which is of a permanent and continuing nature and which is to be performed at a fixed place of employment pursuant to a regular assignment.
2. The standard to be applied is not the expectancy of his employment because of the seniority rule or the terminology used to describe his employment, but rather whether the work to be performed here is considered to be of permanent duration at a fixed place of employment.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 -- No immigration visa. Executive Order 8766 -- No
passport.
Discussion: Upon consideration of the entire record, the findings of
fact and conclusions of law stated by the Board of Special Inquiry at
the close of the hearing are hereby adopted. No exceptions have been
submitted.
The appellant is a 35-year-old married male, a native and citizen of
Canada. He is employed as a telegrapher by the Canadian Pacific R.R.
As a result of the adoption of the 40-hour week by the railroad, the
appellant has secured employment as an operator at Newport, Vt., as a
telegrapher for 2 days a week by exercising his seniority rights. The
appellant testified that the 2 days' work in the United States is relief
duty performed while the regular operator has his days off. He stated
that he also works as a relief operator in Canada for the remaining 3
days a week. The appellant testified that the employment in the United
States is permanent as far as he knows, and it is evident that if the
appellant did not perform the duties, someone else would be required to
do so. The appellant testified that he was not in possession of a valid
immigration visa or an unexpired passport. He was, therefore, excluded
by the Board of Special Inquiry on the grounds stated in the caption.
Although telegraphers have been held not to be within the pale of the
excluding provisions of the contract labor laws, their exemption
therefrom does not relieve them of the necessity of complying with the
documentary requirements of the immigration laws. Therefore, if the
appellant is found to be an immigrant, he must present a valid
immigration visa and an unexpired passport. The work that the appellant
will perform in the United States is not of a temporary nature but
rather by his own admission, it is considered to be of a permanent
duration. The need for such work has risen as a result of the adoption
of the 40-hour week and there is no indication that such adoption was on
an experimental or temporary basis. Therefore, since the appellant will
be entering the United States regularly and indefinitely for 2 days
every week, it is concluded that his employment is of a permanent and
continuing nature and he must be considered an immigrant. As previously
indicated he does not possess the necessary documents for the admission
of an immigrant into this country and, therefore, the excluding decision
of the Board of Special Inquiry should be affirmed. However, such
affirmation will be without prejudice to the appellant's reapplication
for admission within 1 year.
Recommendation: It is recommended that the excluding decision of the
Board of Special Inquiry be affirmed without prejudice to the alien's
reapplication for admission within 1 year.
So ordered.
Discussion: This is an appeal from an order entered by the Acting
Assistant Commissioner on January 24, 1950, affirming the appellant's
exclusion on the above-stated grounds without prejudice to his
reapplication for admission within 1 year. It is urged on behalf of the
appellant that he seeks to enter the United States temporarily for
business in connection with his employment by an international railroad
as a telegraph operator and, therefore, is exempted from the documentary
requirements of the Immigration Act of 1924.
The facts of the case are fully stated in the Acting Assistant
Commissioner's opinion. Briefly they relate to a native and citizen of
Canada employed by the Canadian Pacific R.R. as a telegraph operator who
has exercised his seniority to fill a "bulletined' relief job which
provides 3 days' employment in Canada and 2 days in the United States.
It appears that this arrangement is necessary because of the variation
in the hours of employment between telegraphers employed in the United
States and those employed in Canada. The Board of Special Inquiry found
the appellant's employment to be of a permanent nature by reason of the
adoption of the 40-hour week by railroad telegraphers in the United
States. He was excluded as an immigrant not in possession of the proper
documents.
The appellant testified that he obtained the "swing job' by virtue of
his seniority and "as far as I know that job is permanent.' The
appellant's representative, on the other hand, urges that the employment
is in the nature of "extra work'; that the appellant will perform his
duties until someone displaces him by reason of seniority; and that
since the operators assigned to this type of work shift back and forth
across the border, they should be considered as entering for temporary
periods of time. The issue before us, therefore, is to determine
whether the appellant's employment in the United States is of a
permanent character or a temporary one.
As we see the problem, the standard to be applied is not the
expectancy of the appellant's employment because of the 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.
There is no question but that a telegraph office is a fixed place of
employment. They do not travel from place to place across the border in
the same manner as the crew which operates the train. The work
performed by a telegraph operator is of a permanent and continuing
nature which requires the regular assignment of personnel. The
appellant seeks to enter the United States regularly 2 days each week
for an indefinite period to engage in employment which is of a permanent
and continuing nature and which is to be performed at a fixed place of
employment pursuant to a regular assignment. Under these circumstances,
it cannot be said that he is a temporary visitor for business. He is an
immigrant and is required to present documents. The appeal will be
dismissed.
Order: It is directed that the appeal be and the same is hereby
dismissed without prejudice to the alien's reapplication for admission
within 1 year.
Citizenship -- Acquisition, by child born abroad of alien parents, upon admission for permanent residence in 1948, while still under 18 years of age -- Section 314(c) of the Nationality Act of 1940 -- "Custody' of child where parents "legally separated.'
1. A child born in Czechoslovakia on November 26, 1929, of alien
parents, was admitted to the United States for permanent residence on
August 25, 1947. The parents were married in 1927 and such marriage was
"annulled' in 1940. The child remained abroad with the alien mother
until August 1947; the father came here in 1941 and was naturalized on
September 4, 1946. The marriage was found validly dissolved and the
father was found to have "legal custody' of the child at the time of her
admission here in August 1947, as contemplated by section 314 of the
Nationality Act of 1940, so that such child acquired United States
citizenship on August 25, 1947, pursuant to the provisions of section
314(c) of the Nationality Act of 1940, in view of the circumstances set
forth.
Discussion: Subject claims that she derived United States
citizenship on August 25, 1947 through permanent residence in the United
States since that date, at which time she was under the age of 18 years;
her father, B K M , having been naturalized on September 4, 1946, by
the United States District Court at Philadelphia, Pa., her parents
having been legally separated and she being in the legal custody of said
naturalized parent.
The questions presented are (1) whether there was a legal separation
of the parents, (2) whether subject was a legitimate child and (3)
whether the naturalized person had legal custody of subject, as
contemplated by section 314(c) of the Nationality Act of 1940.
The record discloses that subject was born in Czechoslovakia on
November 26, 1929, the daughter of B and A M , who were then citizens of
Czechoslovakia. Her parents had been married on December 29, 1927, in
Karlsbad, Czechoslovakia. On June 22, 1940, the marriage of her parents
was annuled by the German Provincial Court at Eger, Sudetenland,
Czechoslovakia. Subject's father was lawfully admitted to United States
for permanent residence on August 4, 1941, and was naturalized as a
United States citizen on September 4, 1946. Subject remained with her
alien mother in Europe until 1947 when she came to the United States to
live with her father. She was lawfully admitted for permanent residence
on August 25, 1947, while she was still under the age of 18 years.
The decree of annulment made no provision for the custody of the
subject. The father testified that he went to Czechoslovakia in 1947,
that subject's mother simply turned custody of subject over to him, that
no papers were signed in the matter but that it was agreed that he would
assume custody. On April 8, 1948, the mother alleged in an affidavit
that the father had obliged himself since August 1947 to educate and
support subject, that the father took upon himself to completely provide
for her in the future, and that she "declared to consent to that and
that their daughter shall remain with her father.'
In the grounds for the decision set forth in the decree of the
annulment, it was stated that the plaintiff (the mother) requested the
annulment of the marriage, that she was a German Aryan and that her
spouse was Jewish. It was further held that, neither at the time of the
marriage nor at the beginning of their Brussels residence, was she (the
mother) acquainted with or conscious of the racial problem, and that
only recently was she enabled to lodge her bill of complaints based on
the foregoing and on her financial independence from her spouse. It was
further stated that the defendant (the father) agreed to the annulment
of their marriage and admitted that he was a Czech and Jewish.
The first problem presented is whether the annulment of the marriage
constituted a legal separation of the parents, as contemplated by
section 314 of the Nationality Act.
In reply to a letter of this Service dated December 22, 1948, the
Office of the Law Librarian, Library of Congress, Washington, D.C.,
submitted a memorandum of law concerning the dissolution of marriage in
the Sudetenland on the basis of racial difference between the spouses.
This memorandum, in part, contained the following information:
Prior to the annexation of the Sudetenland by Hitler the
provisions of the Austrian civil code of 1811, as modified by the
Czechoslovak law of May 22, 1919, No. 320, with some additional
Austrian regulations concerning Roman Catholics, were in force in
this region. These laws did not provide for any annulment of
marriage because of racial difference.
Under the decree of December 22, 1938, by the German Minister
of Justice (Reichsgesetzblatt, 1938, pt. I. p. 1987) certain parts
of the German Marriage Act of July 6, 1938 (ibid, p. 807) were put
into effect in the Sudetenland beginning with January 1, 1939.
The decree contained also some special provisions to be applied
only in the Sudetenland. But this Marriage Act of July 6, 1938,
expressly maintained in force the Hitler discriminatory
legislation concerning interracial marriages that was enacted
previously, viz, the law of September 15, 1935 (Reichsgesetzblatt,
1935, pt. I, p. 1146) with all the decrees issued in its
implementation.
Thus, essentially, marriage and divorce in the Sudetenland came
under the German discriminatory laws. However, while in Germany
proper the new marriage law had in part superseded, and in part
combined with, the provisions of the German civil code of 1900
(commonly cited as B.G.B.), in the Sudetenland it superseded, and
was combined with, the provisions of the Austrian civil code of
1811 (commonly cited as A.B.G.B.), of certain other Austrian laws
and of the Czechoslovak law of 1919. These laws are referred to
in the decree of December 22, 1938, as "provisions hitherto in
force in the Sudetenland,' and they should, therefore, be analyzed
in brief together with the provisions of the German law in order
to ascertain the law of the Sudetenland during German domination.
Before the liberation of Czechoslovak territory took place the
president of the Czechoslovak Republic in exile issued "a
constitutional decree of August 3, 1944, concerning the
restoration of legal order' which was retained in force and
repromulgated after the liberation of Czechoslovakia as an
appendix to the proclamation of the Minister of the Interior of
July 27, 1945, Collection of Laws (Zbirka Zakonu), 1945, law No.
30. By the above decree the laws and decrees issued after October
30, 1938, and up to the liberation of Czechoslovakia, were
declared "not to be a part of the Czechoslovak legal order'
(section 1). Those provisions of these laws and decrees "which,
by content, are not in conflict with the wording or the democratic
principles of the Czechoslovak Constitution' might be temporarily
applied during the period of transition (section 2). But the
application of provisions in the sphere of the "law of domestic
relations' and some other spheres was unconditionally prohibited,
and the decree was declared to take effect in this respect upon
the expiration of 3 months after its promulgation, i.e., on
November 8, 1945.
Consequently, all the above-mentioned German Laws affecting
marriage ceased to be effective on that day. However, the
decisions, decrees, or orders issued by administrative authorities
and courts under these laws were not invalidated automatically,
but the parties concerned were allowed to petition for such
invalidation in the presence of certain circumstances specified by
law (id. sec. 6 also decree of April 9, 1946 No. 76). Thus, a
dissolution of marriage granted under the Hitler laws remains in
effect unless it was invalidated on the ground of such petition.
The German Marriage Act of July 6, 1938, in section 4 referred,
with regard to the prohibition of marriages of persons of "German
or kindred blood' with those of "alien blood,' to the law of
September 15, 1935, for the protection of German blood and
marriage and to decrees issued in its implementation.
This law of September 15, 1935, provides as follows:
SECTION 1. Marriages between Jews and Reich subjects of German
or kindred blood shall be forbidden. Marriages entered into in
violation of this law shall be null and void, even if they have
been celebrated abroad in order to circumvent this law.
Action for annulment may be brought only by the government
attorney.
SECTION 2. Extramarital intercourse between Jews and Reich
subjects of German or kindred blood shall be forbidden.
However, neither this law nor the law of July 6, 1938, contain
any provisions concerning mixed marriages which were celebrated
before their enactment, but the decree of December 22, 1938,
provides as follows:
SECTION 19. (1) The validity of a marriage entered into before
January 1, 1939, in accordance with the laws theretofore in force
in the Sudetenland shall be judged under such laws.
(2) If the ground of invalidity (of a marriage) is identical
with a ground which justifies the dissolution of a marriage under
the (German) Marriage Act (of 1938), the provisions of this act
concerning the dissolution of marriage shall apply. The period of
time for the filing of the suit for dissolution (section 40 of the
Marriage Act) shall expire not sooner than December 31, 1939.
* * * * * * *
SECTION 25. The dissolution of a marriage entered into prior to
January 1, 1939, may be petitioned on ground set forth by the
(German) Marriage Act (of 1938), insofar as the provisions of law
hitherto in force in the Sudetenland do not provide for a ground
of invalidity which would justify, under section 19, subsection
(2), the dissolution of the marriage. The period of time for
bringing an action for dissolution (section 40 of the Marriage
Act) shall expire not sooner than on December 31, 1939.
Consequently, although as a rule a marriage celebrated before
January 1, 1939, does not come under the restrictive provisions of
the German discriminatory laws (section 19, subsection (1)), it
may be attacked within the specified period of time. There are
two instances when such an attack is permissible; first, when the
old law provided for a "ground for invalidity' which is identical
with a "ground for dissolution' provided for by the new German law
(section 19, subsection (2)); and, second, when the new German
law provided for such "ground for dissolution' of the marriage
which had no counterpart among the "grounds for invalidity' under
the former laws.
The obscurity of the language is explained by two reasons, one
that the Hitler government was not prepared to give to the new
laws any unconditional retroactive effect and thereby to shake all
the mixed marriages celebrated before the enactment of
discriminatory laws. The second reason was that they desired to
leave open a back door for such attack.
Furthermore, the provisions concerning the termination of a
marriage under the old German law (B.G.B.) and the Austrian law
(A.B.G.B.) are different from those of the Hitler laws which, in
addition, employ a new terminology. The German law, the civil
code of 1900 (B.G.B.), provided, on the one hand, for divorce
(Scheidung, sections 1567 et. seq.) and, on the other hand, for
the annulment of marriage (Nichtigkeit, sections 1323 et seq.).
The Austrian code provided for termination of marriage because of
its invalidity (Ungultigkeit) or by divorce (Ehetrennung) as well
as for legal separation (for which the term employed is identical
with German divorce, namely Scheidung), which had the same effect
as divorce except that the separated spouses could not enter into
a new marriage (A.B.G.B., section 103).
The German law of July 6, 1938, recognized three ways of
terminating marriage: (a) Annulment (Nichtigkeit, sections
20-32); (b) dissolution (Aufhebung der Ehe, sections 33-47) which
may be petitioned on some grounds for nullity (German law) or
invalidity (Austrian law) of marriage arising under prior laws;
(c) divorce (Ehescheidung, sections 46-80).
Under both the old and new law a marriage could be contested in
case of a mistake relating to the person of the other spouse.
Under German law the marriage could be contested on this ground
only within 6 months after the mistake was discovered (section
1339). If the court decided for the plaintiff, the marriage would
be declared null and void from the very beginning. The Hitler
laws declared a mistake to be a reason not for an annulment or for
"invalidity' but for the "dissolution' of a marriage which is
effective only from the day when the decision becomes final, as in
the case of a divorce (sections 37 and 42). Thus, a dissolution
under the Hitler law did not affect the legitimacy of the
offspring and, in general, had the effect of a divorce and not of
an annulment.
* * * * * * *
IV. CUSTODY OF THE CHILDREN IN CASE OF DISSOLUTION OF THE
MARRIAGE
In dissolving a marriage or granting a divorce under the law of
July 6, 1938, the court in the Sudetenland did not have to enter
any order concerning the custody of the children. This was
reserved to the jurisdiction of a special "Guardianship court'
which in general was charged with guardianship matters in which it
proceeded under the rules of nonadversary proceedings with a great
deal of informality and in which it had to take jurisdiction only
if it was warranted by the absence of an agreement between the
parties or by other circumstances. The statutory provisions on
this subject matter do not furnish any formal criterion for the
granting of custody to one or another spouse but in fact leave it
to the court to find "whatever under the circumstances is most
conducive to the welfare of the child' (section 81, infra).
SECTION 42. (1) The (legal consequences) of the dissolution
shall be determined by the provisions concerning the legal
consequences of a divorce.
(2) In the cases falling under sections 35 through 37 the
spouse who has known the ground for dissolution shall be
considered guilty. * * *
SECTION 81. (1) If the marriage has been dissolved the
guardianship court (Vormundschaftsgericht) shall decide which
spouse shall be entitled to the custody of a common child.
Whatever under the circumstances is most conducive to the welfare
of the child shall be the deciding factor.
(2) If there are several common children the custody of all
children shall be granted to the same parent provided no other
arrangement is required for special reasons or is compatible with
the welfare of the child.
(3) The custody shall be granted to a spouse who has been
adjudged solely or preponderantly guilty only in case this serves
the welfare of the child for particular reasons.
(4) The guardianship court may grant the custody to a curator
if, for special reasons, this is required for the welfare of the
child.
(5) The guardianship court may change the decree at any time if
the welfare of the child so requires.
(6) The divorced spouses shall be heard before the decree. The
interview may be omitted if it would be impracticable.
The Austrian civil code as amended before Hitler carried
similar provisions, as follows:
SECTION 142. If, upon separation from bed and board or upon
divorce, the spouses enter into an agreement regarding the custody
and education of the children without the consent of the court
then the court shall decide whether all, or which children, should
be given to the father or mother, taking into consideration the
particular circumstances of the case with a view to the interest
of the children, the occupation, personality and characteristics
of the spouses and the reasons for the separation or divorce.
Nevertheless, the other spouse shall have the right to have
personal relations with the child. The court may regulate the
relations in greater detail. The cost of education shall be borne
by the father.
Under changed circumstances the court may without regard to its
earlier arrangements or to the agreements of the spouses, make the
new arrangements necessary in the interest of the children.
Thus, it appears that, prior to the annexation of the Sudetenland by
Hitler, there was no provision in effect providing for the annulment of
any marriage because of racial difference. However, subsequent to the
annexation of the Sudetenland to Germany, marriage and divorce came
under the German discriminatory laws. The German Marriage Act of July
6, 1938, and the law of September 15, 1935, provided for the dissolution
of marriage where certain racial differences existed. The German law of
July 6, 1938, recognized three ways of terminating marriage: (a)
annulment, (b) dissolution (Aufhebung der Ehe, secs. 33 to 47), and (c)
divorce. The German decree of December 22, 1938, permitted the
dissolution of mixed marriages in the Sudetenland, even though the
marriage had been performed prior to January 1, 1939. Such marriage
could be dissolved where it was entered into by mistake. However, under
the Hitler laws, a mistake was a reason not for an annulment but for the
dissolution of a marriage which is effective only from the day when the
decision becomes final, as in the case of a divorce (secs. 37 and 42).
The record discloses that subject's parents were married on December
19, 1927. The mother obtained a decree on June 22, 1940, in the German
Provincial Court at Eger, Sudetenland, which territory was then annexed
to Germany. The decree was based on the allegations by the mother that
her husband was Jewish and that only recently had she been able to lodge
her complaint on such fact and on her financial independence from her
husband. The decree provided that it was an "Aufhebung einer Ehe.' In
the grounds of the decision it was stated "The foregoing action is an
action brought in accordance with section 37 of the marriage law. In
consideration of defendant's consent and the credibility of plaintiff's
assertion concerning the time element when she became aware of her
mistake, the petition was granted as being legally valid.'
In view of the foregoing, it must be concluded that the decree
obtained by the mother, pursuant to section 37 of the marriage law of
July 6, 1938, was a dissolution of the marriage but not an annulment.
It was effective only from the day when the decision became final which
was June 22, 1940. It, therefore, could not affect the legitimacy of
offspring born during the continuance of the marriage relationship.
While, under the decree of August 3, 1944, issued by the President of
Czechoslovak Republic in exile, a decree issued in accordance with the
German discriminatory laws could be invalidated, a petition to
invalidate was required. The record fails to show that the mother filed
such a petition.
Consequently, the dissolution of the marriage of the parents must be
considered as being valid and as constituting a "legal separation' of
subject's parents, within the meaning of section 314(c) of the
Nationality Act of 1940. It must also be concluded that subject was the
legitimate child of such marriage.
The record further discloses that custody was not awarded in the
dissolution proceedings, and, in accordance with the law in effect at
that time, the decree was entered (A-168432, F C W , Apr. 3, 1947; sec.
81 of the law of July 6, 1938, supra) there was no statutory grant of
custody.
It is the view of this Service that, in the absence of judicial
determination or judicial or statutory grant of custody in the case of
legal separation of the parent of a person claiming citizenship under
section 314(c), the parent having actual uncontested custody is to be
regarded as having "legal custody' of the person concerned for the
purpose of determining that person's status under section 314(c). (F C
W , A-168432, Apr. 3, 1947; W K , A-168342, Apr. 2, 1947).
From the foregoing, it is concluded that subject's father had "legal
custody' of subject at the time of her admission for permanent residence
into the United States on August 25, 1947. Accordingly, subject derived
United States citizenship on August 25, 1947, through permanent
residence in the United States since that date, at which time she was
under the age of 18 years; her father, B K M , having been naturalized
on September 4, 1946, by the United States District Court at
Philadelphia, Pa., her parents having been legally separated and she
being in the legal custody of said naturalized parent.
It is ordered, That the application of B C M M for a certificate of
citizenship be granted, citizenship having been derived on August 25,
1947.
Citizenship -- Derivation by child born abroad later legally admitted to the United States for permanent residence as a minor, an alien (1937) -- de Coll case (37 Op. Atty. Gen., 90, 1933) -- Where mother always a citizen -- R.S. 2172 -- Validity of divorce of the parents -- Custody of the child -- Conflict of State laws -- Eligibility of child for certificate of citizenship -- Section 339, Nationality Act of 1940, as amended.
1. A child, born abroad in 1928 of a citizen mother and of an alien father, whose parents were married in 1925, and whose mother was always a citizen (nativeborn), acquired United States citizenship in 1937 under the principle enunciated in the De Coll decision (37 Op. Atty. Gen., 90, 1933) and under the provisions of R.S. 2172, where the child was lawfully admitted to the United States for permanent residence in 1937, and where the parents were validly divorced in 1937, the subject's mother being awarded custody of the subject in 1937.
2. Though such child acquired citizenship as stated, through her mother, (father naturalized in 1947), she is not entitled to a certificate of citizenship because there was no naturalization of a parent as contemplated by section 339 of the Nationality Act of 1940, as amended.
3. Where a divorce decree in one State (Nevada, 1937) is procured by the father, followed by a decree of separation in another State (New York, 1938) procured by the mother (which latter court held the Nevada court without jurisdiction when granting its divorce decree), it will not be questioned where the father was before the Nevada court in 1937, both parents were before the Nevada court on a reopening of the case in 1946, and the Nevada court entered a divorce decree in 1947, reciting it was effective nunc pro tunc as of 1937. It is concluded the parents were validly divorced in 1937, insofar as these administrative proceedings are concerned.
4. Where the physical custody of the child was with the mother only
since 1935, the 1937 Nevada divorce said custody was as per a written
agreement of parties, the 1938 New York separation decree gave custody
to the mother, a 1946 agreement between parties stated the custody of
the child was to remain with the mother and the 1947 Nevada decree
(reopened 1937 case) gave sole custody to mother, such decree reciting
it was effective as of 1937, it is concluded that the mother was legally
awarded the custody of such child in 1937.
Discussion: Subject claims that she derived United States
citizenship on July 1, 1937, through permanent residence therein from
July 1, 1937, in which date she was a minor, her mother, a
native-born-citizen, having resumed citizenship on April 24, 1937,
pursuant to the principle enunciated in the case of Fernando de Coll y
Picard (37 Op. Atty. Gen., 90, Mar. 1, 1933), upon the termination of
the mother's marriage by divorce on April 24, 1937.
The question presented is whether the marriage of subject's parents
was legally terminated on April 24, 1937, so that the mother can be
considered as having resumed her citizenship.
The record discloses that subject's parents were married on August
28, 1925, at Madison, Conn., that subject was born on March 29, 1928, at
Florence, Italy, and that subject was lawfully admitted to the United
States for permanent residence on July 1, 1937. Her mother, C P , nee W
was born in Brooklyn, N.Y., on August 2, 1896 and subject's father, G P
was naturalized as a United States citizen on January 7, 1947.
Subject could not derive United States citizenship under the
provisions of section 313 or 314 of the Nationality Act of 1940,
inasmuch as she was over the age of 18 years at the time of her father's
naturalization on January 7, 1947. However, under the provisions of
section 2172, R.S., as it remained in effect after May 24, 1934, to
January 13, 1941, and in accordance with the principle enunciated in the
decision of Coll y Picard, supra, she could derive citizenship provided
she establishes that the marriage of her parents was legally terminated
and that she was in the legal custody of her mother, prior to the
effective date of the Nationality Act of 1940 on January 13, 1941.
Subject's parents were separated sometime in 1935 and subject
thereafter at all times resided with her mother. Subject had originally
come to the United States in 1933 and had only been absent from the
United States in July 1937 for the purpose of going to Canada and
returning to the United States so that she might be lawfully admitted to
the United States for permanent residence. On April 24, 1937, subject's
father obtained a divorce decree in the State of Nevada, which decree
recited that subject's mother did not appear in person and was not
represented by an attorney but that certified copies of the summons and
complaint were delivered to her in person in New York City. The mother,
however, has testified that she did not know of this divorce decree
until after she had read about it in the papers. At the time the divorce
decree was entered subject was residing with her mother in New York
City. The divorce decree further recited that all matters concerning
and relating to the custody of subject and the proper rights of both
parties had been settled by the terms of an agreement in writing made by
the parties.
In June 1937 the mother began a proceeding in New York State for the
purpose of obtaining a decree of separation from subject's father. On
January 28, 1938, a decree of separation was granted to the mother by
the Supreme Court of New York County, New York City, in which action
both parties were represented by counsel. In this action, the issue was
raised as to the validity of the Nevada decree of April 24, 1937, and
the New York court held that the Nevada court was without jurisdiction
to grant the divorce, that the plaintiff had not been a bona fide
resident of the State of Nevada but had gone there solely for the
purpose of obtaining a divorce. No appeal was taken from that ruling
(Pignatelli v. Pignatelli, 169 Misc. 534, 8 N.Y.S.(2d) 10 (1938)). In
the decree entered January 28, 1938, by the Supreme Court, County of New
York, New York City, subject's mother was awarded sole custody of
subject, and at that time subject was residing with the mother in New
York City.
On June 4, 1943, the mother instituted an action in the United States
District Court at Washington, D.C., for support of subject. The
complaint filed in that proceeding alleged that the mother had obtained
custody of subject in a separation action in New York and that the
father had obtained a divorce in Nevada which had been declared to be
void. No hearing was held on this action, and it was subsequently
dismissed with prejudice following an agreement made between the parties
which was signed by the mother on May 7, 1946, and the father on May 25,
1946. This agreement provided for the support and maintenance of
subject and agreed that the custody of subject should remain with the
mother. The agreement was filed on December 20, 1946, in the same court
in the State of Nevada in which the father had obtained his divorce
decree. The original divorce proceedings were reopened, and the mother
entered an appearance. On January 10, 1947, an order was entered by
Nevada court granting a divorce to the father and incorporating the
agreement entered into between the parties which was filed on December
20, 1946, with regard to the custody and support of subject. This
decree further recited that it was effective nunc pro tunc as of April
24, 1937.
In the case of Estin v. Estin (334 U.S. 541, June 7, 1948) the
following facts were presented to the United States Supreme Court. The
parties to the action had been married in 1937 and lived together in New
York until 1942 when the husband left the wife. In 1943 the wife
brought an action in the State of New York for a separation, and the
husband entered a general appearance. The court granted her a decree of
separation and awarded $180 as permanent alimony. In January 1944 the
husband went to Nevada, where in 1945 he instituted an action for
divorce. The wife was notified of the action by constructive service
but entered no appearance. In May 1945, the Nevada court granted the
husband an absolute divorce but made no provision for alimony, although
the Nevada court had been advised of the New York decree. Upon entry of
the Nevada decree the husband ceased paying alimony. The wife
instituted an action in New York for a supplementary judgment for the
amount of the arrears, in which action the husband appeared and moved to
eliminate the alimony provisions of the separation decree by reason of
the Nevada decree. The Supreme Court of New York denied the motion and
granted the wife judgment for the arrears. The Supreme Court of the
United States affirmed the decision of the Supreme Court of New York and
further stated that, while service in the Nevada divorce action was by
publication and no appearance was made by the wife in the Nevada
proceedings, the requirement of procedural process had been satisfied
and the domicile of the husband in Nevada was foundation for a decree
affecting a change in the marital status of both parties in all of the
States in the Union, as well as in Nevada. The court, in its opinion,
made the following statement:
The result of this situation is to make the divorce divisible
-- to give effect to the Nevada decree insofar as it affects
marital status and to make it ineffective on the issue of alimony.
It accommodates the interest of both Nevada and New York in this
broken marriage by restricting each State to the matters of her
dominant concern.
The court thus concluded that the divorce was a valid one in the
State of Nevada but despite such fact the New York court could enforce
the decree for alimony in New York State.
In the instant case, a situation is presented that is almost similar
to the facts in the case of Estin v. Estin (supra). Following the
decision of the Supreme Court of the United States in that case, it must
be concluded that subject's father obtained a valid divorce decree in
Nevada and subject's mother obtained a valid decree in New York State in
regard to the custody of subject. It should also be noted that the
Service has adopted the viewpoint expressed in the opinion of the
General Counsel on July 2, 1947 (56013/373-B), that for the purposes of
the Immigration Laws this Service must regard as valid a divorce
regularly granted by the courts of Nevada and a subsequent remarriage
formalized in conformity with the laws of Nevada or any other State.
/1/ This view has also been extended to naturalization cases (A-3505006,
A.N.E. , July 28, 1949). Furthermore, the Nevada court, by its decree
on January 10, 1947, made the divorce decree effective nunc pro tunc as
of April 24, 1937.
It is, therefore, concluded that subject's parents were validly
divorced on April 24, 1937, and that subject's mother was legally
awarded the custody of subject as of that date.
In accordance with the decision in the case of the petition of G A D
on behalf of G G , petition No. 560902, filed in the United States
District Court for the Southern District at New York on October 17, 1947
(77 F.Supp. 832), involving almost similar facts as in the instant case,
it must be concluded that subject derived citizenship on July 1, 1937,
under the provisions of section 2172, R.S., which remained in effect
after May 24, 1934, and prior to January 13, 1941.
It is concluded that subject be deemed to be a citizen of the United
States. However, in view of the decision /2/ of the Attorney General on
December 3, 1943 in the case of J J T (file No. 23/86359), subject,
although acquiring citizenship through her mother, is not entitlecd to a
certificate of citizenship, since there was no naturalization of a
parent as contemplated by section 339 of the Nationality Act of 1940, as
amended. /3/
It is ordered: That the application M E N P P for a certificate of
citizenship be denied.
(1) Editor's note. -- See 3, I. & N. Dec. 227.
(2) Editor's note. -- The Attorney General stated in his memorandum:
"However, the applicant is not entitled to a certificate of
derivative citizenship. The statute authorizing such certificate
applies to persons deriving citizenship through "naturalization' of a
parent. There was no naturalization here because the applicant's mother
had never lost her citizenship.'
(3) Editor's note. -- Likewise in the Matter of B , 2-A-8306, opinion
of the Solicitor of Labor, September 27, 1939. In that case the
Solicitor stated:
"While it may be proper under the rule and doctrine of the Attorney
General's decision in the Picard (de Coll) case to recognize the
applicant as a citizen of the United States by virtue of her mother's
status as such citizen, the fiction on which it is founded cannot be
regarded as the equivalent fact of the "naturalization of a parent'
which the law expressly and plainly requires as a prerequisite to
obtaining a derivative certificate.'
"Ethnic German' -- Quota visa (nonpreference) -- Nationality -- Section 12, Act of 1924, as amended -- Section 12, Displaced Persons Act of June 25, 1948 -- Excludability under section 13, Act of 1924, as amended -- Where not of nationality specified in such visa.
1. Section 12 of the Displaced Persons Act of June 25, 1948, provides that for a certain period (which includes this case), 50 percent of the Germans and Austrian quotas shall be available exclusively to persons of "German ethnic origin,' born in certain European countries, and residing in Germany or Austria on the effective date of such act. This provision was made notwithstanding the provisions of section 12 of the Immigration Act of June 26, 1924, as amended. Foreign Service Visa Circular No. 96 (State Department, August 15, 1949) defines the terms "German ethnic origin,' and "Refugee' for the purposes of the above section 12.
2. A husband/father cannot be considered "characteristically Germanic' solely because his accompanying wife and child are considered "characteristically Germanic,' and his classification as "German ethnic' is based on factors specified in paragraph 5 of the above Foreign Service Visa Circular No. 96.
3. Under the circumstances in this case the alien husband/father is subject to exclusion under the provisions of section 13 of the Immigration Act of 1924 as not of the nationality specified in his visa (nonpreference German ethnic quota), where the evidence does not establish that he is of "German ethnic origin' within the meaning of section 12 of the Displaced Persons Act of 1948.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924. -- Not of nationality specified in visa (all three
appellants).
Discussion: These three records relate to a 45-year-old married
male, his 46-year-old wife and 17-year-old unmarried son, all natives
and citizens of Poland, who arrived in New York, December 15, 1949, on
the S.S. Coronia having embarked at Le Havre, France, December 8, 1949.
All three presented nonpreference "Ethnic german' quota visas issued to
them at Salzberg, Austria, November 9, 1949. All three were held for a
Board of Special Inquiry at New York and on December 19, 1949, all three
were excluded from admission on the ground stated above. All three
appellants are being detained at the port pending decision on appeal.
The two adult appellants stated in their applications for visas that
they were natives of Poland of the German race and that they were
"Ethnic Germans' from Poland. The minor appellant stated that he was
born in Poland and that he is the minor child of an "Ethnic German' from
Poland. These three appellants also presented documents in lieu of
passports issued at Vienna, Austria, October 28, 1949, and valid until
October 27, 1950, for departure therefrom.
The hearing before the present Board of Special Inquiry was conducted
in German. All three appellants claim that they can read German and
Polish. The adult male appellant also stated that he can read
Ukrainian. The adult male appellant further testified that their last
place of foreign residence was Wels, Upper Austria. The adult male
appellant also stated that they resided in Austria during the past 5
years. Before then they resided in Poland. The adult male appellant
also stated that in February 1944, while still residing in Poland, the
Germans came and told him that inasmuch as his wife was a German he
would have to be a German also, otherwise his business would be
confiscated. The adult male appellant disclaims membership in the Nazi
Party or otherwise acquiring German citizenship, claiming they were
given only identification papers describing them as "Volks Deutsche'
(German folks or people). The adult male appellant further stated that
he has never served in the German Army. Shortly after February 1944 the
adult male appellant and his family were evacuated to Austria. He
admits that never before February 1944 did he claim German descent. The
adult male appellant further stated that his parents and grandparents,
all of Ukrainian descent, were all born in Poland. Neither his parents
nor grandparents ever lived in Germany. That part of Poland in which
they and these three appellants were born, however, was under the
Austria-Hungary Government prior to World War I.
The adult male appellant further testified that twice previously he
and his wife and child applied for immigration visas as displaced
persons and all three were rejected by the International Refugee
Organization as not qualified at which time he claims they were
instructed to apply direct to an American consul (presumably under sec.
12 of the Displaced Persons Act, approved June 25, 1948 (Public Law
774)).
Section 12 of the Displaced Persons Act, approved June 25, 1948
(Public Law 774) provides that from and after June 30, 1948, and until
July 1, 1950, notwithstanding the provisions of section 12 of the
Immigration Act of May 26, 1924, as amended, 50 percent of the German
and Austrian quotas shall be available exclusively to persons of "German
ethnic origin' who were born in Poland, Czechoslovakia, Hungary,
Roumania, or Yugoslavia and who, on the effective date of this act
(Public Law 774, approved June 25, 1948,) reside in Germany or Austria.
Foreign Service Visa Circular No. 96, issued by the State Department
August 15, 1949, defines the term "German ethnic origin' within the
meaning of section 12 of the Displaced Persons Act of June 25, 1948. To
qualify under the term the applicant must show (1) that he was born in
Poland, Czechoslovakia, Hungary, Rumania, or Yugoslavia; (2) that he
resided in any part of Germany or Austria on June 25, 1948, the
effective date of the Displaced Persons Act; (3) that he does not come
under the jurisdiction of the International Refugee Organization; (4)(
a) that he is a German expellee, or the accompanying wife or minor child
of a German expellee, pursuant to the Potsdam Agreement of August 1,
1945, from Poland, Czechoslovakia, or Hungary, or (b) that he is a
refugee or the accompanying wife or minor child of a refugee from
Poland, Czechoslovakia, Hungary, Roumania or Yugoslavia, or (c) that he
is a person of Germanic origin born in one of the five countries
mentioned or the accompanying wife or minor child of such a person, who
is unable to return in safety to his former home district in Germany and
(5) that he is characteristically Germanic, a status to be determined
upon the basis of the following combination of factors, the presence or
absence of any particular one factor not in itself to be conclusive:
(a) Antecedents emigrated from Germany, (b) use of any of the German
dialects as the common language of the home or for social
communications, (c) resided in the country of birth in an area populated
predominantly by persons of Germanic origin or stock who have retained
German social characteristics and group homogeneity as distinguished
from the surrounding population, and (d) evidences common attributes or
social characteristics of the Germanic group in which he resided in the
country of his birth, such as educational institutions attended, church
affiliations, social and political associations and affiliations, name,
business, or commercial practices and associations, and secondary
languages or dialects.
Foreign Service Visa Circular No. 96 of August 15, 1949, also defines
a "refugee' within the meaning of the circular for the purposes of
section 12 of the Displaced Persons Act approved June 25, 1948, as a
"person who left Poland, Czechoslovakia, Hungary, Rumania, or
Yugoslavia, regardless of the reason for his departure therefrom and is
now unable to return to his native country or homeland because of
conditions existing therein which would probably result in his
persecution on political, racial, or religious grounds.'
During the Potsdam Conference which ended August 2, 1945, the three
major world powers (the United States, the United Kingdom, and the Union
of Soviet Socialist Republics) agreed to assist the Polish Provisional
Government, which provisional government was authorized by the Crimea
Conference, February 11, 1945, in facilitating the return to Poland, as
soon as practicable of all Poles abroad, who wish to go * * * and to the
orderly transfer of German populations, or elements thereof, remaining
in Poland, Czechoslovakia, and Hungary. In carrying out the latter
objective due regard was to be given to an equitable distribution of
such Germans among the several zones of occupation. To that end reports
were to be submitted as to the extent to which such persons (Germans)
had already entered Germany from Poland, Czechoslovakia, and Hungary.
Meanwhile the Czechoslovak Government, the Polish Provisional
Government, and the Control Council in Hungary were requested to suspend
further expulsions (of Germans), (pp. 183, 539, 551, 554, 555,
International Conciliation for the Year 1945, Carnegie Endowment for
International Peace Ed.).
On the basis of the evidence of record it would appear, therefore,
that these three appellants meet the first three requirements for
classification as "German ethnic' under Foreign Service Visa Circular
No. 96 for the purposes of section 12 of the Displaced Persons Act.
Inasmuch as these three appellants received identification cards
describing them as Volks-Deutsche, before they were evacuated to Austria
in 1944, it would appear that they might be "German expellees,' within
the meaning of the Potsdam Agreement, although that fact is not
conclusively shown by the present records. If, however, these three
appellants are deemed to be "refugees' within the meaning of Foreign
Service Visa Circular No. 96 of August 15, 1949, for the purposes of
section 12 of the Displaced Persons Act, approved June 25, 1948, then
there is nothing in the records to show why they are now unable to
return to their native country or homeland.
Whether or not these appellants meet the fifth requirement under
Foreign Service Visa Circular No. 96, that is, whether or not they are
"characteristically Germanic' is a question of fact. The fact that the
antecedents of the adult male appellant did not emigrate from Germany is
not under Foreign Service Visa Circular No. 96, conclusive that he is
not eligible for classification as "German ethnic origin' for the
purposes of section 12 of the Displaced Persons Act, approved June 25,
1948. Moreover, that part of Poland in which the adult male appellant
was born, which place was also the birthplace of his parents and
grandparents, was once a part of the Government of Austria-Hungary and
was a part of that political set-up at the time of the adult male
appellant's birth in 1904. It is not shown by the records however, on
what basis the conclusion was reached that these three appellants are of
"German ethnic origin.' Admittedly the adult male appellant received an
identification card describing him as "Volks-Deutsche' on the claim that
his wife, who was also born in Poland, was descended from German people.
The number of generations removed from Germany, however, was not
disclosed for the record nor was it shown by the record how such
genealogical descent would be imputed to the husband in the absence of a
blood relationship to his wife. In applying for the immigration visas
which these three appellants now present, the adult male appellant
testified before the present Board of Special Inquiry that they
presented their birth certificates, medical certificates, registration
certificates, and certificates of good conduct in addition to their
certificates of identity describing them as "Polish-Volks-Deutsche.'
The records should be reopened for clarification as to whether these
appellants are "German expellees' or "refugees' within the meaning of
Foreign Service Visa Circular No. 96 of August 15, 1949, and if
"refugees,' for the inclusion therein of information as to why they are
now unable to return to their native country or homeland. At the same
time these appellants should be further interrogated along the lines
indicated by Foreign Service Visa Circular No. 96, as to their claim to
be of "German ethnic origin.'
Recommendation: It is recommended that the records be reopened in
accordance with the foregoing and for such further proceedings as may be
appropriate to the case.
So ordered.
Discussion: These three records relate to a 45-year-old married
male, his 46-year-old wife and 17-year-old unmarried son, all natives
and citizens of Poland, who arrived in New York, December 15, 1949 on
the S.S. Coronia having embarked at Le Havre, France, December 8, 1949.
All three presented nonpreference "ethnic German' quota visas issued to
them at Salzburg, Austria, November 9, 1949. All three were held for a
Board of Special Inquiry at New York and on December 19, 1949, all three
were excluded from admission on the ground stated above. All three
appellants are being detained at the port pending decision on appeal.
The Assistant Commissioner on January 5, 1950, concluded that all
three appellants had met the first three requirements for classification
as "German ethnic' under Foreign Service Visa Circular No. 96, of August
15, 1949, for the purposes of section 12 of the Displaced Persons Act
approved June 25, 1948 (Public Law 774) but ordered the record reopened
for clarification as to whether these three appellants were "German
ethnic (pursuant to the Potsdam Agreement concluded August 2, 1945)' or
"refugees' within the meaning of Foreign Service Visa Circular No. 96,
and if "refugees' information as to why they are now unable to return to
their native country or homeland. At the same time testimony was to be
taken from them as to their claim to be "characteristically Germanic'
within the meaning of paragraph 5 of Foreign Service Visa Circular No.
96.
After reopened hearing at New York, January 6, 1950, during which no
new grounds of inadmissibility were developed, the Board of Special
Inquiry again concluded that these three appellants are inadmissible to
the United States on the documentary grounds urged above. They have
again appealed. Pending decision on appeal all three are still being
detained at the port.
Inasmuch as it did not appear from information adduced during the
reopened hearing, January 5, 1950, that the adult male appellant was
"characteristically Germanic' within the meaning of paragraph 5 of
Foreign Service Visa Circular No. 96, August 15, 1949, for
classification as "German ethnic origin' within the meaning of section
12 of the Displaced Persons Act approved June 25, 1948 (Public Law 774),
the facts were submitted to the Department of State for opinion as to
whether or not the adult female appellant who claimed to be of German
descent and, in turn, her child, the minor appellant, could nevertheless
claim such a status and if so, could the adult male appellant, in the
absence of other factors, be considered "characteristically Germanic'
solely because he is married to a woman "characteristically Germanic'
whose classification ws based on factors specified in paragraph 5 of
Foreign Service Visa Circular No. 96, August 15, 1949.
Under date of February 27, 1950, the Department of State advised that
the female appellant and the minor appellant were deemed to have
satisfied the requirements of Foreign Service Visa Circular No. 96, of
August 15, 1949, for classification as "German ethnic' for the purposes
of section 12 of the Displaced Persons Act approved June 25, 1948
(Public Law 774). In view thereof the conclusion is justified that the
female and minor appellants are of the nationality specified in the
immigration visas which they now present and that they are admissible to
the United States under section 13(a) of the Immigration Act of May 26,
1924, as amended. Their appeals, therefore, will be sustained.
The Department of State on February 27, 1950, also concluded that the
adult male appellant was not "characteristically Germanic' within the
meaning of Foreign Service Visa Circular No. 96 of August 16, 1949. We
concur. It was indicated, however, that relief from deportation under
the excluding order might be availabel under section 13(d) and (e) of
the act of May 26, 1924, as amended. The adult male appellant's appeal,
therefore, will be sustained, provided the Secretary of State finds it
practicable to reduce the Polish quota to which the adult male appellant
is chargeable by 1 during the fiscal year ending June 30, 1950, pursuant
to the provisions of section 13(e) of the 1924 act, supra.
Recommendation: It is recommended that the appeal of the adult
female and the minor alien be sustained and that their admission be
authorized for permanent residence.
It is further recommended, That, provided the Department of State
finds it practicable to reduce the Polish quota by 1 during the fiscal
year ending June 30, 1950, pursuant to the provisions of section 13(e)
of the act of May 26, 1924 as amended, the adult male's appeal be
sustained and that he be admitted for permanent residence as a quota
immigrant under section 13(d) of the 1924 act, supra.
So ordered.
Suspension of deportation -- Section 19(c)(2) of the Immigration Act of 1917, as amended -- Sufficiency of showing as to "serious' economic detriment -- Good moral character.
1. In a low income-bracket family, a showing may be made that "serious' economic detriment (within the meaning of section 19(c)(2) of the Immigration Act of 1917, as amended) will result to the citizen spouse, notwithstanding the fact that the citizen spouse is employed also.
2. A showing of "good moral character', required before suspension of deportation may be granted, is not barred because of certain extramarital misconduct, in view of the circumstances noted herein.
CHARGES:
Warrant: Act of 1924 -- No immigration visa.
Lodged: Act of 1917 -- Admits crime prior to entry: Rape, second
degree
Discussion as to Deportability: Respondent is a native and citizen
of Mexico, 30 years of age. He last entered the United States from
Mexico at Laredo, Tex., on March 8, 1946, and was admitted as a visitor
for a period of 2 months. At the time of his last entry, it was his
intention to reside permanently in the United States. The facts sustain
a finding of deportability.
Discussion as to Eligibility for Suspension of Deportation:
Respondent has requested suspension of deportation on the ground that
deportation would result in serious economic detriment to his United
States citizen wife. At the time of his last entry into the United
States, respondent was already married to a United States citizen woman.
He had been admitted into the United States previously as a contract
railroad worker. He married C S in New York City on September 11, 1945.
She is a native-born United States citizen, having been born in Puerto
Rico. They have no children.
Respondent is employed and at the time of the hearing was earning $37
a week. His wife has been employed since 1942 and is earning $40 a
week. They work for the same employer. The Presiding Inspector found
that deportation of respondent would result in serious economic
detriment to his wife. The Assistant Commissioner's opinion conceded
that respondent's wife would suffer some economic detriment in the event
of his deportation, but not sufficient economic detriment to justify
suspension in view of what that opinion terms "respondent's immoral
conduct while in this country.'
In Matter of J , 5-223513 (Dec. 30, 1946), and in Matter of K ,
2-440423 (Dec. 30, 1946), we held that serious economic detriment
results where there is a 50-percent reduction in the family income as a
result of the deportation of an alien who is one of the wage earners.
In Matter of M , 2872733 (July 17, 1946), we held that deportation of
the alien would result in serious economic detriment to a family in a
low-income bracket notwithstanding the fact that the citizen wife was
employed. In Matter of P , 3810352 (July 15, 1946) we held that even
though the wife would have some liquid assets at her disposal it did not
mean that there would be no serious economic detriment resulting to her
from the alien's deportation. In Matter of B , 1317192 (June 21, 1946),
it was held where deportation of the alien would result in a reduction
of the family income from $80 to $36, a serious economic detriment would
result to the wife. In all of these cases, it took the earnings of both
the husband and wife to support the home. It is our opinion that the
present case falls in this category, and we find that deportation of
respondent would result in serious economic detriment to his United
States citizen wife. /*/
The Presiding Inspector recommended that respondent be denied
suspension of deportation on the ground that he had failed to
demonstrate good moral character during the past 5 years, and the
Assistant Commissioner concurred in that finding. The facts with
respect to respondent's conduct during the past 5 years are as follows:
During September 1945, for a period of 8 days in New York City, he lived
with a girl who was not more than 17 years of age. During this period
he had sexual intercourse with her on a number of occasions. He stated
that he was not aware of the fact that under the laws of New York he was
committing the crime of statutory rape by these acts. He testified that
the age of consent in Mexico is 16 years. The Presiding Inspector found
that respondent had admitted that he had committed a crime prior to
entry. The Assistant Commissioner found that this matter had been
presented to a grand jury in New York City but that the jury refused to
return a true bill. Since the grand jury dismissed the case, the
Assistant Commissioner found that respondent's admission should not be
used as a basis for sustaining the criminal charge, citing Matter of I ,
A-4312827 (May 22, 1946). The lodged charge was not sustained.
Respondent testified that he had planned to marry the girl referred
to above, and that the arrangements had been made for their marriage,
but she decided that she did not want to marry him. Therefore, he
immediately married the woman who is presently his wife. He has lived
with his wife for 4 years, and so far as this record shows he has been
faithful to her.
Respondent is the father of an illegitimate child now aged 11 years,
hwo lives in Mexico. The Central Office found that "in view of the
respondent's generally loose conduct' a grant of suspension of
deportation was unjustified. Counsel points out that the record
contains no proof of the exact age of the girl concerned in the
statutory rape charge, and that since no indictment was found against
him that it may be assumed that nothing adverse was shown.
Good moral character is defined by the courts to be: "That which
measures up to the standard of average citizens of the community in
which the alien lives (In re Petition of De Leo, 75 Fed.Supp. 896 (W.D.
Pa., 1948; also Petitions of Rudder et al., 159 F.(2d) 695 (C.C.A.
2d)). This Board has held that "good moral character' is not synonymous
with moral excellence (Matter of B , 56130/885 (June 15, 1947); Matter
of M , 56152/402 (Mar. 31, 1944)).
In Matter of J , 1163558, (Nov. 18, 1947), approved by Attorney
General December 18, 1947 we held that adultery within a 5-year period
does not necessarily preclude a finding of good moral character. We
believe that the acts and conduct of appellant do not preclude a finding
of good moral character under the liberalized view of the above-cited
cases. The record shows that respondent is a good worker and is
commended as to his reputation, character, and honesty. He is living
harmoniously with his wife. Judging from his conduct during the 4 years
of his marriage, he is deserving of a grant of suspension of deportation
at this time on the grounds that his deportation would result in serious
economic detriment to his United States citizen wife.
Suspension of Deportation -- Findings of Fact: Upon the basis of all
the evidence presented, it is found:
(1) That the alien is not ineligible for naturalization in the
United States;
(2) That the alien has been of good moral character for the
preceding 5 years;
(3) That deportation of the alien would result in serious
economic detriment to his wife, a citizen of the United States;
(4) That after full inquiry no facts have been developed which
would indicate that the alien is deportable under any of the
provisions of law specified in section 19(d) of the Immigration
Act of 1917, as amended.
Suspension of Deportation -- Conclusion of Law: Upon the basis of
the foregoing findings of fact, it is concluded:
(1) That the alien is eligible for suspension of deportation
under the provisions of section 19(c)(2) of the Immigration Act of
1917, as amended.
Order: It is ordered that deportation of the alien be suspended
under the provisions of section 19(c)(2) of the Immigration Act of 1917,
as amended.
It is further ordered, That the order entered by the Assistant
Commissioner on August 12, 1949, be, and the same is, hereby withdrawn.
It is further ordered, That if during the session of the Congress at
which this case is reported, or prior to the close of the session of the
Congress next following the session at which this case is reported, the
Congress passes a concurrent resolution, stating in substance that it
favors the suspension of such deportation, the proceedings be canceled
upon the payment of the required fee and that the alien, a nonquota
immigrant, be not charged to any quota.
(*) Editor's note. -- To like effect, unreported case of Matter of C
, A-6965817, B.I.A., January 6, 1950, wherein the respondent earned $38
a week and the wife about $36 a week, the wife not intending to work
indefinitely but desiring to own their home.
In the unreported case of Matter of V , A-6978197, B.I.A., January
17, 1950, the stepfather supported the respondent (age 16) and her
mother. The Board said:
"* * * The respondent's stepfather is steadily employed with the
Gulf, Mobile & Ohio Railroad at about $50 per week. He stated that he
is willing to continue supporting the respondent until she becomes
self-supporting. He stated further that the respondent's deportation
would result in serious economic detriment to him and his wife as they
would have to arrange to send her back to Mexico, to pay for her support
while waiting in that country and that his salary is not large enough to
do these things and still have sufficient funds for maintenance of his
home in this country.
"We realize that the respondent is eligible for a nonquota
immigration visa under section 4(c) of the Immigration Act of 1924 and
that she should have little difficulty in obtaining such document.
However, the cost of the trip to and from Mexico plus the fact that her
parents must provide for her support in the event of any delay is much
too heavy a financial burden to place on a family with only a limited
income. It is evident that serious economic detriment will result to
the respondent's citizen stepfather and legally resident alien mother,
and as such we feel that the respondent's case is one in which
suspension of deportation should be granted.'
In the unreported case of Matter of P , A-6249435, B.I.A., January
13, 1950, the widowed mother was the respondent. The Board said:
"The respondent is living in this country with her three daughters,
ages 23, 22, and 18, all of whom are native-born citizens of the United
States and unmarried. The respondent is unemployed, her entire time
being devoted to maintenance of the household wherein she and her
daughters live. She is supported by her daughters each of whom
contributes a one-third share of the expenses.
"The respondent has been denied suspension of deportation on the
basis that her minor citizen daughter is under no legal liability to
provide for the support of her mother (the respondent) and as such the
respondent's eligibility for suspension of deportation has not been
established under the law. The respondent's minor citizen daughter
appeared as a witness and testified to the effect that her mother's
deportation would result in serious economic detriment to her. She
stated that her mother supervised the entire household and that she and
her two sisters were the only means of support for her mother. She
stated further that she and her sisters were all employed; that they
would be forced to hire someone to run their household if their mother
is deported and due to the high cost of living they would be unable to
maintain their household in this country and support their mother
abroad.
"As we examine the testimony by the respondent's minor citizen
daughter and the over-all economic setup of this family unit, is seems
apparent that the respondent's deportation will result in serious
economic detriment to her minor citizen daughter and as such her request
for suspension of deportation should be granted. Accordingly, we will
so order.'
Citizenship -- Expatriation by voting in foreign political election (1946, Mexico) -- Section 401(e) of the Nationality Act of 1940 -- Defense that subject was not of legal voting age in Mexico.
A native-born citizen of the United States expatriated himself under the provisions of section 401(e) of the Nationality Act of 1940 by voluntarily voting in a political election in Mexico in 1946 when over 18 years of age and it is no defense that the subject was not then of legal voting age in Mexico (21).
CHARGES:
Warrant: Act of 1924 -- No immigration visa.
Act of 1917 -- Entered at other than a designated port. Act of
1918 -- No passport. Act of 1917 -- Excluded within 1 year -- no
permission to reapply.
Discussion: Upon consideration of the entire record, the findings of
fact, and conclusions of law proposed by the presiding inspector and
read to the alien and his attorney on November 3, 1949, are hereby
adopted.
Exceptions to the proposed order of deportation were filed. The
exceptions state that a finding that the applicant voted in a political
election in Mexico was contrary to the preponderance of evidence; that
such a voting, if it occurred, occurred during his minority and was not
sufficient as a matter of law to expatriate him.
Expatriation of the subject is predicated upon his testimony under
oath at a hearing before a Board of Special Inquiry on April 8, 1948,
held at Calexico, Calif., to the effect that he had voluntarily voted in
a political election in Mexico in July 1946 when he voted for a
president and congressman. At that time the alien testified that he had
gone from the ranch on which he was employed, to town in order to vote,
and that he had voted in a small office adjacent to the mayor's office.
At a hearing held on October 26, 1949, on a warrant of arrest, the
subject repudiated the testimony he had given at the Board of Special
Inquiry hearing. He stated he had never voted in Mexico and that he had
not made the statements attributed to him at the Board of Special
Inquiry hearing. The alien's attorney represents that the Government
has failed to meet the burden of establishing expatriation since the
subject now testifies he never voted, and this assertion appears to be a
correct statement of the facts since the subject was not, in fact,
eligible to vote in Mexico. This ineligibility is based on article 34
of the Mexican Constitution which provides that only single persons over
21 years of age and married persons under 18 years of age are eligible
and legal voters in the Republic of Mexico. The subject is single and
at the time of voting was 21 days short of being 21 years of age. As a
corollary it is urged that a native-born citizen cannot during his
minority renounce allegiance to the United States. The alien identified
the record of the Board of Special Inquiry hearing of April 8, 1948, as
relating to him and the record was introduced into evidence at the
hearing on October 26, 1949. It was then the duty of the presiding
inspector to determine whether the alien's statements against his
interest were to be accepted or his self-serving statements made at a
later date to the effect that he had not voted. The presiding inspector
properly could base his recommendation for deportation on the alien's
voluntary statements against interest, even though he was not then
represented by counsel, and even though he now repudiates the admissions
(Ung Bak Foon v. Prentis, 227 F. 406 (C.C.A. 7, 1915); Maita v. Haff,
116 F.2d 337 (C.C.A. 9, 1940); Tsevdes v. Reimer, 108 F.2d 860 (C.C.A.
2, 1940); Ng Kai Ben v. Weedin, 44 F.2d 315 (C.C.A. 9, 1930)). The
evidence of record, therefore, establishes that the alien voted in a
political election in Mexico in July 1946. Although the record fails to
establish as to what date a person is considered to be 21 under Mexican
law, even conceding that the applicant voted illegally, it would appear
that he had expatriated himself (Matter of A , 56158/91 (1944, B.I.A.).
For it is the taking of an active part in political affairs of a foreign
state by voting in a political election which reveals a political
attachment and practical allegiance to the foreign state which is
inconsistent with continued allegiance to the United States (Matter of G
, 56172/393 (1944, B.I. A.)). The allegation that a minor native-born
citizen of the United States cannot expatriate himself during minority
is supported by citations, none of which have construed the Nationality
Act of 1940 under which expatriation occurred. Section 401 of the
Nationality Act of 1940 (8 U.S.C. 801) provides:
A person who is a national of the United States, either by
birth or naturalization, shall lose his nationality by:
(c) Voting in a political election in a foreign state or
participating in an election or plebiscite to determine the
sovereignty over foreign territory; or
Section 403(b) of the Nationality Act of 1940 (8 U.S.C. 803)
provides:
No national under 18 years of age can expatriate himself under
subsection (b) to (g), inclusive, of section 401.
The record, therefore, contains sufficient evidence to justify a
finding of expatriation; it is immaterial whether the alien's voting
was legal or not; and he being over the age of 18 at the time he voted,
must be held to have expatriated himself.
The alien's attorney states that the Government has failed to sustain
the burden of proving the subject an alien. The subject's statements
against his interest are relevant and competent evidence such as a
reasonable mind might accept as adequate to support the conclusion
reached by the presiding inspector. The subject testified in detail
that he purposely came to the election office for the purpose of voting
although he did not reside in that area; he named the candidates and
those for whom he voted; he described the manner in which he voted.
This is clear, unequivocal, and convincing evidence sustaining the
finding of expatriation beyond a reasonable doubt. The exception will,
therefore, be dismissed and the alien's deportation ordered.
Recommendation: It is recommended that the alien's application to
remain in the United States as a citizen of the United States be denied.
It is further recommended, That the alien be deported to Mexico at
Government expense on the charges stated in the warrant of arrest.
It is further recommended, That execution of the warrant of
deportation be deferred pending conclusion of prosecution, and in the
event of conviction and sentence, until the alien is released from
imprisonment.
So ordered.
Discussion: This case is before us on appeal from an order entered
by the Assistant Commissioner on December 28, 1949, denying the
respondent's application to remain in the United States as a citizen
thereof and directing that he be deported to Mexico at Government
expense on the charges stated in the warrant of arrest, the execution of
said warrant to be deferred pending conclusion of prosecution and, in
the event of conviction and sentence, until the alien is released from
imprisonment.
The respondent was born in California on July 28, 1925, and it is
undisputed that he was a citizen of the United States by birth. The
respondent's expatriation is predicated upon his testimony under oath at
a hearing before a Board of Special Inquiry on April 8, 1948, held at
Calexico, Calif., to the effect that he had voluntarily voted in a
political election in Mexico when he voted for a president and
congressman. The only issue involved in the case is whether or not
expatriation has been established.
The Assistant Commissioner in his opinion has fully covered the facts
in the case, including the respondent's subsequent testimony before a
Board of Special Inquiry on October 26, 1949, at which time he denied
having voted in the Mexican election. The Assistant Commissioner's
opinion fully covers the issues raised by counsel and sets forth the law
applicable to the present situation. We have made a careful and
complete study of the authorities cited by the Assistant Commissioner
and have reached the conclusion that there would be no justification for
any change in the opinion as rendered by him. Therefore, we will affirm
the decision of the Assistant Commissioner and order that the appeal be
dismissed.
Order: It is ordered that the appeal be and the same is hereby
dismissed.
Perjury -- When offense completed -- Correction of missatement, voluntarily and timely.
An alien, in an immigration proceeding, who testifies falsely under oath as to a material fact, but who voluntarily and without prior exposure of his false testimony, comes forward and corrects his testimony, has not committeed the offense of perjury, under the circumstances in this case.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 -- No immigration visa. Act of 1917 -- Admits crime
prior to entry, to wit: Perjury.
Discussion: Appellant is a native and citizen of Mexico, age 23. He
seeks entry to the United States for permanent residence. He was
excluded from admission to this country at San Ysidro, Calif., on May 6,
1948, by a Board of Special Inquiry on the grounds set forth above. The
Assistant Commissioner affirmed the finding of the Board of Special
Inquiry. His appeal to this Board followed.
Appellant applied for an immigration visa at the American consulate,
Tijuana, Mexico, and was rejected by reason of his exclusion by the
Service because of perjury. The record coverning his prior exclusion is
incorporated in the present record.
Appellant was born in Mexico, November 1, 1924, and was brought to
the United States during approximately 1926. He resided here until
1931, when he returned to Mexico with his parents. He returned to the
United States in November 1943, being admitted as an agricultural
laborer, remaining until June of 1945. On October 30, 1945, he
attempted to reenter the United States as a citizen, representing that
he was born in this country. The alleged misrepresentations he made to
the primary inspector at that time constitute the basis of the present
perjury ground of exclusion. He was not admitted by said primary
inspector but was held for a Board of Special Inquiry. On the following
morning, namely, October 31, 1945, he appeared before a Board of Special
Inquiry and before being placed under oath, he admitted the false
statements of the previous day. His exclusion in 1945 was based solely
on documentary grounds. It appears that he was convicted on his plea of
guilty to a violation of section 220(b), United States Code Annotated,
on the basis of the misrepresentations in question.
On November 1, 1946, appellant was again excluded by a Board of
Special Inquiry at San Ysidro, Calif., on documentary grounds, and as
one who admitted the commission of perjury, namely, the statement he
made before the primary inspector on October 30, 1945, as to his
citizenship. The Commissioner affirmed such exclusion, as did the Board
pro forma on December 9, 1946.
The Commissioner's affirmance stated, in part:
* * * He states that when he departed to Mexico on June 30,
1945, he wanted to come back to the United States to work; and
that he took the birth certificate of his brother, L R R , who was
born in Grand Prairie, Tex., on June 16, 1923, and changed the
date of his birth on the certificate to show the date of his
birth. He further states that he applied for admission at
Calexico, Calif., on October 30, 1945, by using the name of his
brother and presenting his brother's birth certificate and
representing that he was the person whose name appeared on such
certificate. He admits that in connection with his application
for admission on October 30, 1945, he falsely gave facts under
oath, relative to his name, time, and place of birth and residence
in the United States. He admits making the false statements, the
falsity thereof, and admits the commission of perjury. The record
shows that he was excluded by a Board of Special Inquiry on
October 31, 1945, and did not appeal from the decision.
The Service continued:
A de novo examination of the merits of this case lead to the
conclusion that the appellant was properly excluded under the
Immigration Act of February 5, 1917, in that he admits the
commission of a crime involving moral turpitude prior to entry, to
wit: Perjury. There can be no question at this time that the
statements made by the appellant under oath were material, or that
he knew them to be false, or that he admitted that they were
false, or that after being advised of the definition of the crime
of perjury, he admitted its commission. In United States v.
Norris, 300 U.S. 564 (1937), Mr. Justice Roberts stated for the
Supreme Court:
"Perjury is an obstruction of justice; its perpetration well
may affect the dearest concerns of the parties before a tribunal.
Deliberate material falsification under oath constitutes the crime
of perjury and the crime is complete when a witness' statement has
once been made. It is argued that to allow retraction of perjured
testimony promotes the discovery of truth, and if made before the
proceeding is concluded, can do no harm to the parties. The
argument overlooks the tendency of such a view to encourage false
swearing in the belief that if the falsity be not discovered
before the end of the hearing, it will have its intended effect,
but, if discovered, the witness may purge himself of a crime by
resuming his role as a witness and substituting the truth for his
previous falsehood. It ignores the fact that the oath
administered to the witness calls on him freely to disclose the
truth in the first instance and not to put the court and the
parties to the disadvantage, hinderance, and delay of ultimately
extracting the truth by cross-examination, by extraneous
investigation, or other collateral means.
"* * * The plain words of the statute and the public policy
which called for its enactment alike demand we should hold that
the telling of a deliberate lie by a witness completes the crime
defined by law. This is not to say that the corrections of an
innocent mistake, or the elaboration of an incomplete answer, may
not demonstrate that there was not wilfull intent to swear
falsely.'
Here there was no "innocent mistake' or "incomplete answer' to be
elaborated, and the case, therefore, cannot fall within the saving
clause of the last paragraph above. Nor can it fall within the
qualifications which have been established by the Board of Immigration
Appeals in Matter of S , 56113/807 (1944); Matter of R , 56172/721
(1945); or more recently, Matter of M P , A-6908837 (July 7, 1948), for
his testimony clearly indicates that the reason that he has admitted the
falsity of his statements was that he thought that his ruse had been
detected. Thus at page 4 of the hearing of November 1, 1946:
Q. What was your object in falsely claiming to be L or L R R at
Calexico, Calif., on October 30, 1945?
A. Because I had not papers to get into the United States to
live and to work again, so I took the birth certificate of my
youngest brother, L , and changed the birthdate from 1929 to 1925,
so that it would be more nearly my own age, and presented it and
applied for admission. I thought that I could get by on that
certificate but I was caught when the inspector noticed the birth
date had been changed on the certificate.
We are unable to accept the conclusion of the Service, nor do the
authorities cited support the reasoning and conclusion adopted.
Perjury at common law is defined as "the wilfull giving, under oath,
in a judicial proceeding or court of justice, of false testimony,
material to the issue or point of inquiry' (Bishop Criminal Law, 9th
Ed., sec. 1015, see also Corpus Juris 820; and B.C.L. 254). It has
been extended by Federal statute and by statutes of many States to
include false swearing not connected with judicial proceedings (U.S.
Criminal Code, sec. 125, U.S.C., title 18, sec. 231; Clark & Marshall,
Law of Crimes, 2d Ed., p. 653; 21 B.C.L. 255-256; 48 Corpus Juris
820-1). The charge in the present proceedings, of course, rests on the
applicability of sections 16 and 17, Immigration Act of 1917.
Section 17 of the Immigration Act of 1917 provides that Boards of
Special Inquiry "shall have authority to determine whether an alien who
has been duly held shall be allowed to land or shall be deported.'
Section 16 of said act, which deals with the primary inspection of
arriving aliens, provides for the taking of evidence under oath
"touching the right of any alien to enter, reenter, pass through, or
reside in the United States, * * *.' This section further provides that
any person under oath --
who shall knowingly or wilfully give false evidence or swear to
any false statement in any way affecting or in relation to the
right of any alien to admission or readmission to, or to pass
through, or to reside in the United States, shall be deemed guilty
of perjury and be punished as provided by section 125 of the
Criminal Code (18 U.S.C.A., sec. 231). All aliens coming to the
United States shall be required to state under oath the purpose
for which they come, the length of time they intend to remain in
the United States, whether or not they intend to abide in the
United States permanently and become citizens thereof, and such
other itmes of information regarding themselves as will aid the
immigration officials in determining whether they belong to any of
the excluded classes enumerated in section three thereof.
Thus, the inquiring body is entitled to have before it all necessary
facts to properly pass upon the question of admissibility. All
pertinent, relevant, and competent testimony becomes material. And the
testimony must not be such as to influence, impede, or dissuade the
inquiry body on the issue before it. Matter of W , 56158/385 (Nov. 4,
1944) and cases cited therein.
Hence, to find the perjury charge supported herein, it must meet the
test in all its essential elements, that is, the false statement(s) must
be material, under oath and the offense must be otherwise complete
(Howes v. Toz(i)er, 3 F.(2d) 849; Matter of B , 7513193 (1947); T ,
5301016 (1947); S M , 6105583, (1946); G , 56041/599 (1942); K ,
56073/783 (1942); V , 56154/764 (1943); R , 56030/974 (1941)).
The appellant's case does not show all the essential requirements to
constitute perjury. When applying for admission to the United States on
October 30, 1945, he claimed to be a citizen of the United States and
exhibited a birth certificate of a younger brother, the dates on the
certificate having been altered. He executed a certificate before the
inspector alleging he was his brother and a citizen by birth in the
United States. Right after executing this affidavit appellant admitted
to the primary inspector that he had lied. On page 8 of the Board of
Special Inquiry hearing of October 31, 1945, the following appears:
Q. How did the inspector who examined you yesterday learn that
you had lied to him?
A. He asked me for identification and I showed him the papers
that you have entered in the record as exhibits. They were all in
my wallet. After he saw these papers, he asked if I had told him
any lies and I admitted that I had. I admit that I have done
something wrong but my intentions are good. I want to come here
and be a citizen. I wanted to go to the consul as suggested by my
mother-in-law but I couldn't see him. Then I tried to get into
the United States this way.
At the Board of Special Inquiry hearing the appellant told the truth
at all times. Reading the question and answer quoted above, it would
appear that the appellant voluntarily and without knowledge coming to
the inspector through other means admitted the falsity of his prior
assertion of birth in the United States. The Service pointed to the
fact that appellant is not entitled to plead reasonable retraction
because of testimony given by appellant at a Board of Special Inquiry on
November 1, 1946. There appellant testified that the inspector noted
that the birth date on the certificate of birth presented in the 1945
hearing had been altered, and, as a consequence, the appellant admitted
the falseness of his claim. It would seem, then, that the issue becomes
rather close.
However, we feel that the hearing accorded appellant in 1945, at the
time the false swearing occurred, might well be accepted as representing
what transpired at that time, and according to the 1945 hearing, the
retraction of the false swearing by appellant was purely voluntary.
Even in connection with the testimony at the hearing on November 1,
1946, we have no evidence that the primary inspector had, in fact,
detected a fraud. It is noted that the Board of Special Inquiry in 1945
did not see fit to charge appellant with the admission of the commission
of perjury.
We have held that where an alien, in an immigration proceeding,
testifies falsely under oath as to a material fact, but voluntarily and
without prior exposure of his false testimony, comes forward and
corrects his testimony, perjury has not been committed. This ruling
follows that in the Matter of W , 56107/923 (1942). In the Norris case
he attempted to correct his testimony only after the falsity of his
statements was exposed through the testimony of a Government witness.
We are inclined to hold that the testimony in the case now before us
falls squarely within the purview of previous holdings cited by the
Service. It seems clear to us that appellant voluntarily and prior to
the exposure of the attempted fraud, corrected any statements or
impression he may have given the primary inspector with respect to his
place of birth and the birth certificate (Matter of G , 6591236 (Apr.
10, 1947)). Applying these holdings to this case, we conclude that the
offense of perjury, not being completed, appellant is not inadmissible
as one who admits the commission thereof.
Order: It is ordered that the appeal be dismissed and the excluding
decision affirmed solely with respect to the ground that the alien is
not in possession of an immigration visa.
Editor's note. -- In the unreported Matter of V , A-6505181, B.I.A.,
Jan. 9, 1950, the Board said: "In Matters of N and B , 56158/385 and
56158/527 (Nov. 4, 1944), we said that testimony withheld must afford a
factual basis material to some ground of exclusion or deportation.' The
Board held that the facts of former citizenship, place of birth, and
residence are "material' in connection with seeking admission and an
immigration document, citing Matter of D , 56158/32, Mar. 22, 1944;
Matter of R , 55091/636, Nov. 29, 1943. As to name and identity being
material, see 2, I. & N. Dec. 638.
Perjury in connection with an application for extension of stay was
sustained in exclusion proceedings as to a misstatement as to employment
here, 8 C.F.R. 165.12, calling for such application to be under oath and
the regulation having the force and effect of law (Matter of O A ,
A-6829500, B.I.A. Dec. 16, 1940, unreported, which cited Matter of C ,
56156/933, Mar. 4, 1944 (a false statement in Form I-539 constituted
perjury and which cited Matter of R , 56043/929, Dec. 2, 1942, that it
was no defense the alien did not realize the consequences or gravity of
his act)).
In the Matter of G , A-5061341, B.I.A., Oct. 25, 1949 (unreported),
the Board said: "When a person is seeking readmission to the United
States, the date, place, and manner of his previous entry or entries are
material matters. The respondent's testimony clearly establishes that
he intentionally and purposely made the material false statement
contained in his application for a reentry permit, and that he was aware
of the falsity of his statement and the purpose it was to serve * * *.'
A misstatement not material to the issue of admissibility in a
hearing before a Board of Special Inquiry, is not a subject on which
perjury is based (Matter of G , 56041/599, Apr. 23, 1942) where under
the circumstances of the case there was a misstatement as to marriage
(Matter of D D , 55872/429, Mar. 16, 1944), number of children, and name
of woman he was living with out of wedlock (Matter of D , 55871/ 500
Feb. 16, 1944), and claiming an accompanying woman as his wife (not
excludable under Hansen v. Haff, 291 U.S. 559) (Matter of C G , 55924/
957, Apr. 22, 1941).
Previous arrest and deportation -- Permission to reapply thereafter -- Act of March 4, 1929, as amended -- Whether original deportation was had "in pursuance of law' -- Right to a hearing de novo on the basis of Sung v. McGrath (339 U.S. 33).
1. Under the circumstances in this case, the finding is judtified that the alien's original deportation was had "in pursuance of law' as of the time of her deportation, and subsequent laws or interpretation of laws cannot be pleaded to vitiate a former order. (See 3, I. & N. Dec. 83, 605).
2. Where the warrant of arrest was served years before the Administrative Procedure Act of 1946 was enacted, the mere fact the proceedings were reopened (and reopened hearings were conducted during 1947) does not entitle the alien to a hearing de novo on the basis of the decision of the Supreme Court in Wong Yang Sung v. J. Howard McGrath (Feb. 20, and Mar. 13, 1950, 339 U.S. 33, 908).
CHARGES:
Warrant: (1) Act of 1917 -- Entered by false and misleading
statements. (2) Act of 1929 -- Arrested and deported -- No permission to reapply before March 4, 1929. (3) Act of 1917 -- Reentered after arrest and deportation as prostitute. (4) Act of 1917 -- Prostitute at the time of entry. (5) Act of 1924 -- No immigration visa.
Lodged: (6) Act of 1917 -- Found managing a house of prostitution.
(7) Act of 1917 -- Inmate of a house of prostitution.
Discussion: This case is before us on appeal from an order entered
by the Assistant Commissioner on May 17, 1949, directing the
respondent's deportation to Canada, if practicable, otherwise to Cuba,
at Government expense, on charges (2), (3), and (5) enumerated above.
Counsel on appeal urges that respondent's deportation was not in
pursuance of law and that, a fortiori, subsequent orders of deportation
predicated thereon are nullities since the respondent's original entry
was lawful.
The respondent, a native of Canada, female, 40 years of age,
divorced, was legally admitted to the United States for permanent
residence during September of 1926. She was originally deported to
Canada on April 26, 1929, having departed voluntarily while there was
outstanding a valid warrant of deportation charging that she had been
found to be an inmate of a house of prostitution. She reentered the
United States on or about May 8, 1929, and was next deported on August
29, 1931, on the charges of entering after deportation, by false and
misleading statements, and that she returned to the United States after
having been arrested and deported as a prostitute or a person connected
with prostitution. She was again found subject to deportation on April
5, 1932, on the warrant charges stated above. The case was ordered
filed on April 14, 1933, as Canadian authorities would not consent to
her readmission as a deportee because there was an indication of loss of
Canadian nationality by her marriage to an alleged Cuban.
This Board on June 7, 1946, affirmed the Commissioner's order of May
27, 1946, withdrawing the outstanding order and warrant of deportation
dated April 5, 1932, and granting the alien's motion to reopen the
hearing to permit the introduction of additional and material evidence.
Pursuant to the foregoing, hearings were had at Chicago, Ill., June
through November 1947. During these hearings there were lodged two
additional charges laid under the 1917 act to wit: That the respondent
had been found managing a house of prostitution and was an inamte of a
house of prostitution. The Assistant Commissioner has found the
respondent subject to deportation solely on the charges numbered (2),
(3), and (5) in the caption above. After careful consideration of the
evidence of record, we are disposed to affirm the findings of the
Assistant Commissioner.
Counsel in his argument before this Board takes the position that the
original deportation proceeding lacks the requirements of a fair hearing
in that the only substantial evidence bearing upon the respondent's
deportability was secured under conditions other than voluntary and,
therefore, should not be accepted as wholly reliable. We have carefully
reviewed the original deportation hearing accorded the respondent on
March 12 and 22, 1929. We note that she was represented by counsel who
made no objection to the introduction of the statement taken from her
February 27, 1929. There was evidence to support the finding that the
respondent was an inmate of a house of prostitution at the time of her
apprehension. This being true, we will not now reevaluate the evidence
in the first hearing.
Respondent's original deportation was had "in the pursuance of the
law' and she was so deported. "The law of a case is determined or fixed
as it was at the time of the deportation. Subsequent laws or
interpretation of laws cannot be pleaded to vitiate a former order'
(Matter of R , 3844720 (Apr. 29, 1949)). As was said in U.S. ex rel.
Koehler v. Corsi, 60 F.(2d) 123 (C.C.A. 2, 1932), "* * * it is now too
late to attack that deportation as one not in pursuance of law.' /*/
The Assistant Commissioner under section 20 of the 1917 act concludes
that the respondent is deportable to Cuba as well as Canada. With this
we do not agree. There is no substantial evidence of record that the
respondent acquired Cuban nationality at the time of her marriage on
October 9, 1931, or that her husband was, in fact, a citizen of Cuba at
that time. The respondent was born in Canada. She has never resided in
Cuba. Counsel informs this Board that the respondent is now divorced
from her husband.
Under the circumstances, the respondent's appeal will be dismissed
and the Commissioner's order amended to provide for deportation solely
to Canada on the stated charges.
Order: It is directed that the appeal be and the same is hereby
dismissed; the order entered by the Commissioner May 17, 1949, is
hereby amended to provide for the alien's deportation solely to Canada
at Government expense.
(*) Editor's note. -- Similarly, in the Matter of M , unreported
(A-3083881, Board of Immigration Appeals, Oct. 14, 1949), the alien
having been deported in 1916 on a warrant of deportation issued in 1915,
one of the grounds of deportation being that he "procured or attempted
to bring into the United States a woman or girl for an immoral purpose'
(deportation was under the act of February 20, 1907, as amended, which
provided substantially as to immoral classes as did the act of February
5, 1917). The Board noted that while under the ruling in Hansen v.
Haff, 291 U.S. 559 (Mar. 5, 1934), the evidence would not support such a
deportation charge, the "law of the case became established so far as he
was concerned at the time of deportation * * *.'
In Matter of de S , unreported, A-7128705, B.I.A., Jan. 16, 1950,
which was in exclusion proceedings, a ground of exclusion was previously
excluded and deported as a prostitute. The above court case was cited
(Koehler) after the B.I.A. said: "The law of the case is determined or
fixed as of the time of the original exclusion and deportation.'
Discussion: This case is before us on motion of counsel dated May
24, 1950, requesting that our order of December 9, 1949, be set aside
and the hearing reopened for the purpose of affording the respondent an
opportunity to apply for suspension of deportation or, in the
alternative, that the case be remanded for a hearing de novo in view of
the decision of the United States Supreme Court in Sung v. McGrath.
The record discloses that the warrant for the respondent's arrest was
issued and served on her on December 24, 1931. Thereafter on April 5,
1932, an order was entered directing that she be deported to Canada. On
April 14, 1933, the case was ordered filed in view of the fact that the
Canadian authorities would not consent to her readmission as a deportee
because there was an indication that she lost her Canadian nationality
by virture of her marriage to an alleged Cuban. This Board on June 7,
1946, affirmed an order entered by the Commissioner on May 27, 1946,
which directed that the outstanding order and warrant of deportation
dated April 5, 1932, be withdrawn and granted the respondent's motion
for a reopening of the hearing for inclusion therein of additional and
material evidence. The record further discloses that the reopened
hearings were conducted during 1947 and subsequent thereto on May 17,
1949, the Assistant Commissioner entered an order and warrant directing
the respondent's deportation to Canada, if practicable, otherwise to
Cuba. The respondent was found deportable under the act of 1917 and the
act of March 4, 1929, as amended by the act of June 24, 1929, in that at
the time of entry she was a member of one or more of the classes
excluded by law, to wit: Section 1(a) of the act approved March 4,
1929, as amended, being an alien who had been arrested and deported in
pursuance of law in whose case prior to March 4, 1929, the Secretary of
Labor had not granted permission to reapply for admission; under the
act of 1917 in that she returned to and entered the United States after
having been excluded and deported or arrested and deported as a
prostitute, or as a procurer, or as having been connected with the
business of prostitution or importation for prostitution or other
immoral purposes; and under the act of 1924 (no immigration visa). On
December 9, 1949, this Board dismissed the appeal from the
aforementioned order of the Assistant Commissioner. The remaining facts
presented in this case have been adequately discussed in numerous prior
decisions and it is not deemed necessary to further elaborate on them at
this time.
Counsel's contention that the respondent should be permitted to
obtain the discretionary relief provided in section 19(c)(2) of the act
of 1917, as amended (suspension of deportation) in view of the fact that
the record indicates that she has been a person of good moral character
for the preceding 5 years (since 1939) and because of her continuous
residence in the United States since 1932 is without merit. The
respondent is one of the classes of persons enumerated in section 19(d)
of the act of 1917, as amended, to whom the discretionary relief
provided in section 19(c) of that act shall not be applicable.
In view of a recent decision of the United States District Court,
Southern District of New York, on April 4, 1950, in the case of
Harisiades, we must deny counsel's alternate request that the case be
remanded for a hearing de novo on the basis of the Supreme Court
decision in Sung v. McGrath. In the Harisiades case (supra) the court
ruled that deportation proceedings were initiated on the date the
warrant of arrest was issued (April 12, 1930) or on the date on which it
was served (May 2, 1946). Both of these dates were before the
Administrative Procedure Act became law by Presidential approval on June
11, 1946. In the above-cited case, hearings were conducted on October
15, 1946, January 30, and January 31, 1947, and thereafter on August 5,
1947, the Assistant Commissioner entered an order directing that the
hearing be reopened for the reception of additional evidence * * * and
additional charges. It was the determination of the court that there
was no merit to counsel's contention that the deportation proceeding was
not instituted until October 15, 1946; further, that there was only one
deportation proceeding brought against the alien Harisiades regardless
of the fact that the hearing was reopened in February 1948, a date
subsequent to June 11, 1946, the effective date of the Administrative
Procedure Act.
The facts in the instant case show that the issuance and service of
the warrant of arrest occurred many years prior to June 11, 1946, the
effective date of the Administrative Procedure Act and that the reopened
hearing was conducted subsequent to the effective date of the above act.
For the reasons stated above, the motion will be denied.
Order: It is ordered that the motion be denied.
Editors note. -- See editor's note on p. 459.
Citizenship -- Derivation by foreign born alien child through resumption of citizenship by her widowed mother (1936) -- Requirement of lawful admission for permanent residence -- Admission in error under "exemption 9' -- Amendment of record of entry (prior to July 1, 1924) where quota not exhausted (8 C.F.R. 110.37(b) -- Admission under section 14 of the Immigration Act of 1924.
An alien born abroad was erroneously admitted (February 1924) under
the so-called "exemption 9' under the Quota Act of 1921, as amended
(neither the father nor the child returning from a temporary visit
abroad), nor may such record be amended pursuant to 8 C.F.R. 110.37(b)
because the quota to which she was chargeable was exhausted at the time
of her entry; but because she was under 16 years of age when her
widowed mother resumed citizenship in 1936, she was held to fall within
the provisions of section 14 of the Immigration Act of 1924 under the
circumstances, so that her admission on February 11, 1924, could be
considered as a lawful admission for permanent residence, whereupon she
was found to have derived citizenship in 1936, and was entitled to a
certificate of citizenship.
Discussion: The question presented is whether the certificate of
citizenship heretofore issued to the above-named subject should be
canceled in accordance with the provisions of section 340 of the
Nationality Act of 1940, as amended, on the ground that it was illegally
procured.
The record discloses that on May 27, 1943, subject applied for a
certificate of citizenship under the provisions of section 339 of the
Nationality Act of 1940, alleging therein that she derived citizenship
on June 25, 1936, through the resumption of citizenship by her mother, E
G on June 25, 1936, at which time applicant was a minor and having
resided permanently in the United States since February 11, 1924, her
father having died on May 10, 1936. On February 16, 1944, subject was
issued certificate No. A-101273. No question was raised in this
proceeding regarding subject's admission into the United States.
Subsequent thereto, subject's brother, J G G applied for a
certificate of citizenship under section 339 of the Nationality Act of
1940 (0300-136640, A-185781, A-6899462). In his case, a question was
raised as to his lawful admission to the United States for a permanent
residence and after a certificate of lawful entry had been issued,
certificate of citizenship No. A-185781 was issued on September 29,
1948. Both the brother and subject entered the United States at the
same time.
The problem presented is whether subject's admission on February 11,
1924, was a lawful admission for permanent residence, which is required
on order for subject to establish that she derived citizenship.
The record discloses that subject's father, A G , was originally
admitted to the United States at New York, N.Y., on November 18, 1923.
At the time of his entry, he was accompanied by subject's mother, and
was admitted in transit. The manifest record discloses that head tax
was assessed on deposit, that no proof of departure was submitted and
that head tax was authorized transferred to the Treasury on April 19,
1924. On February 11, 1924, the father was again admitted to the United
States at New York, N.Y., under exemption 9 and was accompanied at that
time by subject and subject's brother J G G . The record does not
disclose when the father left the United States after his entry in 1923.
The record of admission of subject on February 11, 1924, shows that she
was accompanied by her father and her brother and was destined to her
mother in the United States, that no head tax was paid inasmuch as
subject was under 16 years of age and that subject was admitted under
exemption 9.
Section 2(d) of the act approved May 19, 1921, as amended, which was
in effect at the time of the father's admission to the United States on
November 18, 1923, and February 11, 1924, and at the time of subject's
admission on February 11, 1924, provided that aliens returning from a
temporary visit abroad, if otherwise admissible, might have been
admitted after the monthly or annual quotas were exhausted (this section
is known as exemption 9). However, neither subject's father nor subject
were entitled to admission under this section inasmuch as they were not
aliens returning from temporary visits abroad. Section 110.37(b) title
8, C.F.R., provides a method whereby certain persons admitted for a
temporary visit prior to July 1, 1924, may be regarded as having been
admitted for permanent residence. However, the record of admission may
not be amended under the general administrative procedure of amending
records of entry, where the Service records disclose that the quota for
the country from which the aliens came has been exhausted (A-2477430. L
A H , Dec. 6, 1948). The quota for Germany, the country of birth of
subject and of father, for the fiscal year of 1924 was exhausted on
January 29, 1924.
Accordingly, subject's record of admission cannot be amended under
the administrative procedure as prescribed by 8 C.F.R. 110.37(b).
Section 14 of the Immigration Act of 1924 contains a proviso that:
* * * The Attorney General may, under such conditions and
restrictions, as to support and care as he may deem necessary,
permit permanently to remain in the United States, any alien who,
when under 16 years of age, was heretofore temporarily admitted to
the United States and who is now within the United States and
either of whose parents is a citizen of the United States.
The discretionary power to exercise section 14 has been delegated by
the Attorney General to the Commissioner of Immigration and
Naturalization by notice 1.42(j). Such discretionary power was
exercised in the case of A J M (A-94433, Nov. 27, 1943) in which case
the facts were similar to those in subject's case.
Subject's case falls directly within the conditions of this proviso.
The facts in the case are such as to call for the exercise of the
discretionary powers delegated to the Commissioner of Immigration and
Naturalization. Accordingly, the record of subject's admission should
be amended to show that she was lawfully admitted to the United States
for permanent residence at New York on February 11, 1924.
Thereupon, subject, having been lawfully admitted to the United
States for permanent residence on February 11, 1924, derived citizenship
of the United States on June 25, 1936, through the resumption of
citizenship by her mother, A G on June 25, 1936, subject being then a
minor and having resided permanently in the United States since her
lawful admission on February 11, 1924, at which time she had not reached
her sixteenth birthday, her father having died on May 10, 1936.
It is, therefore, concluded that it may be deemed that a certificate
of citizenship was properly issued to the subject.
It is ordered, That pursuant to section 14 of the Immigration Act of
1924, subject's record of entry at New York, N.Y., on February 11, 1924,
be deemed a lawful entry for permanent residence.
It is further ordered, That the case be considered closed insofar as
the institution of cancellation proceedings are concerned.
Bond -- Delivery bond in explusion proceedings, breached for failure to surrender upon demand -- Where service of a demand to surrender made impossible by alien.
Where an alien was released under bond while under expulsion
proceedings, on the condition that he surrender himself when a
demand was made therefor, and no evidence was presented that he
departed from the United States, such delivery bond may be
declared breached (where two registered communications were
addressed to him at his last known addresses, inquiry of his
whereabouts proved of no avail, and the demands to surrender were
returned to this Service undelivered), inasmuch as he had by his
own actions made a demand upon him impossible.
Discussion: On October 19, 1939, a $500 delivery bond was executed
and filed by subject, a native of India, in order that he might go at
large pending conclusion of instituted expulsion proceedings.
On March 3, 1941, subject's case was considered by the Board of
Immigration Appeals and it was ordered that he be deported to India on
the ground that at the time of his entry into the United States he was
not in possession of an unexpired immigration visa. It was further
ordered at that time that he be permitted to depart under the warrant to
any country of his choice within 90 days. At that time he claimed to be
the spouse of a native-born citizen of the United States, who was
partially dependent upon him for her support and for the support of her
child; he claimed to have lived in the United States since 1921,
although he had stated in the preliminary statement that he first
entered the United States in 1925; and he was not eligible for
suspension of deportation in view of his race.
No evidence has been presented that the alien has departed from the
United States. On February 25, 1949, and again on February 28, 1949,
communications were sent to him by registered mail making a formal
demand that he surrender for deportation and informing him that if he
did not surrender appropriate action would be taken with a view to
breaching the bond furnished. These communications were returned
undelivered, the first as "unclaimed' and the second as "moved, left no
address.' Prior thereto effort had also been made to communicate with
the alien through his attorney, through the Indian Navy Club, and
through the British consulate, none of which could furnish any
information as to his whereabouts. He did not surrender to deportation.
The demand to surrender in this case was not received by the alien.
However, the notice to him to surrender was directed to him at the
address furnished at the time that he posted the bond, and a notice was
also sent to another address concerning which the Service had
information. The demand was not delivered to the alien because he had
made its delivery impossible by removing himself from the addresses
furnished, and by failing to keep the Service informed regarding his
whereabouts. Under the circumstances, as he had by his own action made
a demand upon him impossible, a demand is not necessary and the bond may
be breached on the present record (Pay v. Shanks, 56 Ind. 554; Schnier
v. Fay, 12 Kan. 184).
Recommendation: It is recommended that the outstanding delivery bond
be declared breached and that appropriate steps steps be taken looking
to collection thereunder.
So ordered.
Pardon -- Construction to determine what offenses the pardon covered -- Effect of pardon as to offense on which deportation based.
1. Where the Governor of Rhode Island recommended a pardon to the Senate of that State so that the alien could become naturalized, failing which pardon the alien would be subject to immediate deportation, and the Senate's consent referred to but only one offense at first, but later clearly consented to two offenses (though an inaccuracy appeared therein), it may be concluded that the pardon instrument issued by the Governor covered both offenses, the later act of the Senate being considered merely as a clarification of its prior resolution.
2. Under such circumstances, effect should be given to the pardon as covering both offenses as concluded by the Attorney General of the State of Rhode Island.
3. The provisions of section 19 of the act of 1917 as to deportation of an alien convicted of a crime involving moral turpitude committed within five years after entering the United States, do not apply where the alien has been pardoned for such crime.
CHARGE:
Warrant: Act of 1917 -- Sentenced subsequent to May 1, 1917, to 1
year or more because of conviction of crime involving moral
turpitude committed within 5 years after entry, to wit: Assault
with intent to murder.
Discussion: The attorneys herein by motion move that the order of
January 22, 1946, entered by this Board, be reconsidered and proceedings
canceled pursuant to section 19, Immigration Act of 1917, as amended, on
the ground that the executive pardon granted the alien removes the
grounds of deportation upon which proceedings were initially predicated.
We may reiterate the facts briefly. They establish that respondent,
a native and citizen of Italy, now 47 years of age, was admitted to the
United States for permanent residence on March 20, 1920. Two
indictments, Nos. 12880 and 12881, were returned against the alien, and
the woman who is now his wife, on March 3, 1924, charging assault with
intent to kill with a revolver on two brothers. /1/ They pleaded nolo
contendere. On indictment No. 12281, respondent was sentenced to 5
years in prison. /2/ The sentence on the other indictment, No. 12280,
was deferred. Sometime during 1937, or shortly thereafter, he was
sentenced to 7 1/2 years in prison on indictment 12280, with respect to
which sentence had been initially deferred. /3/
In our order of June 8, 1944, on the facts then before us, we
concluded that the pardon issued May 3, 1943, did not appear to cover
both of the assaults committed in 1924.
The question presented is whether the alien has been pardoned /4/ of
the offenses which constitute the basis for deportation.
Section 19, Immigration Act of February 5, 1917, provides pertinent
hereto:
* * * except as hereinafter provided, any alien who is
hereafter (May 1, 1917) sentenced to imprisonment for a term of 1
year or more because of conviction in this country of a crime
involving moral turpitude, committed within 5 years after entering
the United States * * * shall, upon the warrant of the Attorney
General, be taken into custody and deported * * * The provisions
of this section respecting deportation of aliens convicted of a
crime involving moral turpitude shall not apply to one who has
been pardoned * * * Italics added.
On April 16, 1943, the General Assembly, State of Rhode Island,
passed the following resolution:
Upon the pardon of A D G ,
Resolved: That the Senate hereby gives its advice and consent
to the issuing of a pardon to A D G , now on parole after having
served partially a 7 1/2-year sentence at the State prison for
assault with intent to murder, in accordance with the
recommendation of His Excellency the Governor.
We indicated that there was some question as to whether the pardon
covered both offenses. Another resolution was adopted by the Senate of
the State of Rhode Island, at the January 1945 session of the general
assembly, providing as follows:
To amend Resolution No. 28, of the acts and resolves, 1943,
passed in the senate, April 16, 1943, being a senate resolution,
entitled "Senate resolution upon the pardon of A D G .
Resolved, That Resolution No. 28 of the acts and resolves,
1943, passed in the senate, April 16, 1943, entitled "Senate
resolution upon the pardon of A D G ,' is hereby amended to read
as follows:
"Resolved, That the senate hereby gives its advice and consent
to the issuing of a pardon to A D G , who has served partially a 7
1/2-year sentence at the State prison for assault with intent to
murder and also by reason of being indicted by indictment 12.280
in the City of Providence, in accordance with the recommendation
of His Excellency, the Governor. Italics added.
It is axiomatic that a pardon is an act of grace and mercy. Inherent
in the pardoning power is the right to make the pardon absolute or
conditional (U.S. v. Wilson, 32 U.S. (7 Pet.) 150 (1833)). The intention
of the executive to grant a pardon can have no legal effect until
carried into the completed act (Commonwealth v. Holloway, 44 Pa. 210
(1863). See U.S. ex rel. Forino v. Garfinckel (C.C.A. Pa. 1948, 166
Fed.(2d) 887; Cf., Matter of R , 56011/882 (Oct. 8, 1942)).
The intention of the executive in the present case appears clear by
his statement in the pardon instrument that he requested the advice and
consent of the Senate thereto "to the end that the aforesaid A D G may
become a naturalized citizen of the United States; failing which he is
subject to immediate deportation (see par. 2, p. 2, opinion of the
Attorney General of the State of Rhode Island, rendered July 1, 1947).
The 1943 resolution of the Rhode Island Senate consented to the
pardon granted to A D G "now on parole after having served partially a 7
1/2-year sentence at the State prison for assault with intent to murder,
in accordance with the recommendation of His Excellency, the Governor.'
The 1945 resolution simply clarified the 1943 resolution, if
clarification were needed, by this language:
Resolved, That the Senate hereby gives its advice and consent
to the issuing of a pardon to A D G who has served partially a 7
1/2-year sentence at the State prison for assault with intent to
murder, and also by reason of being indicted by Indictment No.
12280 in the city of Providence, in accordance with the
recommendation of His Excellency, the Governor.
A resolution by Congress is considered according to the rules
applicable to legislation in general (Ann Arbor, R. Co. v. U.S., 281 U.
S. 658). A fortiori a State legislature may act by resolution and may
qualify one resolution by a subsequent one (59 C.J. 543, secs. 36, 38).
Substance and not form controls in determining the construction of an
act (Pollock v. Farmers Loan and Trust Company, 157 U.S. 429). A
statute must be judged by its full and reasonable effect (Hammel v.
Dagenhart, 247 U.S. 261; Ludwig v. Western Union Telegraph Company, 216
U.S. 147). Legislation cannot be judged by theoretical standards but
must be tested by the concrete conditions which induced it (Mutual Loan
Company v. Martell, 222 U.S. 225). Subsequent legislation must be
considered as an aid to the interpretation of prior legislation upon the
same subject (Tiger v. Western Investment Company, 221 U.S. 286). A
statute is not rendered void by misnaming, if enough is included to
identify the subject intended (Moultrie County v. Fairfield, 105 U.S.
370). And the construction of a particular act must be made in
accordance with previous legislation on the subject (Corraletos Company
v. U.S., 178 U.S. 280).
These cardinal principles of statutory construction come into play
where the language of a particular statute is vague, ambiguous, or
uncertain. They are utilized in such cases with a view to ascertaining
the intent of a particular act, and the language, subject matter, the
object to be accomplished, may be examined to effectuate the intent and
purpose for which the act came into being. The reason which justifies a
departure from the strict rules of construction is to avoid an absurd,
unjust, or capricious result not intended and thus defeat the real
purpose intended of an act or statute (U.S. V. Katz, 271 U.S. 334;
Crooks v. Harrelson, 282 U.S. 55; U.S. v. Bato Post Company, 268 U.S.
388). Thus, apparent inaccuracies and mistakes in the mere verbiage or
phraseology will be overlooked to give effect to the spirit and real
purpose of the law (Kirby v. U.S., 7 Wall. 482; Duncinger v. Cooley,
248 U.S. 219; Boston Sand Company v. U.S., 278 U.S. 41).
To argue that the 1945 resolution was a negative act finds no support
in fact or law. It clearly referred to two separate offenses (the two
offenses which occurred at the same time) and the fact that a mere
inaccuracy appears does not change the clear intent expressed. The
resolution merely clarified the purpose intended by the 1943 resolution
and the grant of pardon issued by the Governor. Thus, whether a
determination is made on the basis of the 1943 or 1945 resolution
renders the pardon instrument issued by the Governor nonetheless
effective to cover both offenses.
The opinion rendered by the Attorney General of the State of Rhode
Island on July 1, 1947, not previously before us, clearly interprets the
pardon and 1943 resolution as covering both offenses.
We feel, therefore, that effect should be given to the pardon as
covering both offenses as concluded by the Attorney General of the State
of Rhode Island (59 C.J. 1027, note 44(b); see also Erie Railroad
Company v. Tompkins, 304 U.S. 64 (1938)).
Order: It is ordered that the outstanding order and warrant of
deportation be withdrawn, the delivery bond canceled, and the
proceedings terminated.
(1) In the memorandum of June 8, 1944, the following factual recital
appears:
"The crime for which this alien was convicted and with which
his wife was also charged was not without provocation. It appears
that R M , who is now the alien's wife, was invited by V G to go
with him on an automobile ride. The latter gave the girl some
chewing gum on which he had placed "Spanish fly' to arouse her
sexual passions, and that he then criminally assaulted her. Her
mouth was badly blistered from the effects of the drug. She
informed her future husband of the dastardly act, and they both
decided to take the law into their own hands rather than the
victim prosecute her attacker.'
(2) The sentence as to the woman was deferred as to both indictments.
(3) This action appears to have come about as a result of alien's
arrest on December 31, 1937, when he was charged with assault with
intent to murder. He has never been tried on this 1937 charge.
(4) See our orders dated June 8, 1944, p. 2, last paragraph, and July
13, 1943, p. 1, par. 2, referring to pardon issued by the Governor on
May 3, 1943.
Since 1854 the Governor of Rhode Island, by and with the advice and
consent of the Senate, has possessed the exclusive power to pardon all
offenses except cases of impeachment. Rhode Island Constitutional
Amendment, art. II. Prior to 1854, the Governor could reprieve and the
general assembly could pardon. See the Attorney General's Survey of
Release Procedures, vol. I, Digest of Federal and State Laws on Release
Procedures, 1939.
Discretionary relief -- Voluntary departure and preexamination, in conjunction with the exercise of the seventh proviso to section 3 of the Immigration Act of 1917 -- Factors considered.
The exercise of discretion in a particular case necessarily requires a consideration of all the facts and circumstances involved, and among the factors considered are (1) the social and humane problems present in the case, (2) the alien's undesirability as evidenced by his offense (even going behind a judgment of conviction to ascertain the surrounding circumstances), and (3) whether the grant of such relief is in the best interests of the United States under the conditions which obtain. (See 1, I. & N. Dec. 8.)
CHARGES:
Warrant: Act of 1924 -- No immigration visa.
Act of 1917 -- Convicted of crime prior to entry -- Petit larceny.
Discussion: This case is before us on appeal from an order entered
by the Assistant Commissioner July 5, 1949, directing the respondent's
deportation to Germany at Government expense on the charges stated in
the warrant of arrest, and denying his application for voluntary
departure, preexamination, and relief under the seventh proviso to
section 3 of the Immigration Act of 1917. Deportability on the stated
charges appears to be conceded by counsel. The appeal is directed to
the denial of discretionary relief.
The respondent, a native and citizen of Germany, now 41 years of age,
married, originally entered the United States as a seaman in 1927. He
was deported to Germany on July 20, 1932, on the documentary charge that
he had remained longer than permitted and on the criminal charge that
subsequent to May 1, 1917, he had been sentenced to imprisonment for a
term of 1 year or more because of conviction in this country of a crime
involving moral turpitude committed within 5 years after entry, to wit:
petty larceny. He returned to the United States the same year as a
stowaway and was denied admission at the port of Galveston, Tex. He
returned to Germany on the same vessel. The respondent last entered the
United States at the port of Boston, Mass., on February 20, 1936, as a
deserting seaman and he has resided here since that time. He has never
received permission to reapply for admission to the United States after
arrest and deportation.
The respondent was apprehended on a warrant of arrest issued July 8,
1943. He was ordered deported on the charges stated therein by this
Board on October 22, 1943. This Board on January 25, 1946, upon
reconsideration of the case, withdrew the outstanding order and warrant
of deportation and directed that the hearing be reopened to permit the
respondent to apply for voluntary departure, preexamination and relief
under the seventh proviso. The case is now before us on appeal pursuant
to the reopened hearing had in accordance with the foregoing.
The sole issue before us is a determination of whether the facts of
the case warrant the exercise of discretion which would waive the
criminal ground of inadmissibility. The Assistant Commissioner in his
opinion concludes that the facts of the case do not warrant the
favorable exercise of the discretion contained in the seventh proviso to
section 3 of the 1917 act because of the following factors: (1) The
respondent's criminal record; (2) his successive violations of the
immigration laws; and (3) his predilection, at least until 1943, toward
the Communist Party and Communist principles.
The exercise of discretion in a particular case necessarily requires
a consideration of all the facts and circumstances involved therein.
However, in dealing with these facts and circumstances, an
administrative body such as this Board must rely on certain
predetermined standards. The standards set forth in Matter of G ,
56040/547,1, I. & N. Dec. 8 (apprvd. A.G. November 29, 1940), require
the consideration of the following factors: (1) The social and humane
problems involved and (2) the alien's undesirability as evidenced by the
crime for which he has been convicted. While we may not go behind the
judgment of conviction in an exclusion or deportation case predicated on
conviction of a crime, inquiry may be had into the circumstances
surrounding the commission of the crime in determining whether
discretionary action should be taken under the seventh proviso to
section 3 of the Immigration Act of 1917 (Matter of G , supra).
The social and humane factors in the instant case are favorable to
the respondent's readmission under the seventh proviso. He has an
aggregate of 18 years' residence in the United States. He has an
excellent employment record. He is now employed as a restaurant
counterman, earning $50 per week. Some 13 or more communications in the
form of letters and affidavits attest that the respondent is a steady,
honest, dependable, and industrious worker. Some 77 friends and
neighbors have signed a petition that the seventh proviso be exercised
favorably in his behalf. There is an affirmative showing that the
respondent's deportation would cause hardship to his citizen wife who is
employed intermittently because of her physical condition. When
employed, his wife earns an average of $30 per week. It was said in
Matter of G (supra), "* * * the exclusion of one who has lived here for
so many years has more far-reaching social consquences than the
exclusion of one who may be applying to enter the country for the first
time or may be seeking reentry after only a few years of residence.' The
factors aforementioned all appeal for favorable action under the seventh
proviso.
The second standard referred to in Matter of G (supra) requires an
appraisal of the respondent from the standpoint of his criminal conduct.
One who has committed an aggravated crime should not receive the same
consideration as one who has committed a petty offense although both
involve moral turpitude. The crime which serves as the basis for one of
the grounds of deportability was committed by the respondent in 1931,
some 18 years past. Prior to 1931 the respondent was arrested on two
occasions. On one occasion he was acquitted. On the other he was
convicted for disorderly conduct. Other than the foregoing, the Federal
Bureau of Investigation has no criminal record against the respondent.
The respondent has engaged in no criminal conduct since 1931. In view
of the evidence now before us, it is apparent that the respondent has
rehabilitated and that his criminal record is an isolated incident.
In addition to the standards referred to in Matter of G , above,
certain conditions concerned with the public safety of our citizens and
the continuation of our democratic form of government have made it
necessary for this Board in the exercise of discretionary relief to
consider as a factor whether the alien's continued residence in this
country is desirable from the standpoint of the best interests of the
United States. With this in mind, we note that the respondent testified
on July 19, 1943, that he did not see anything wrong with the principles
of the Communist Party, "they always did something right.' He also
testified on July 8, 1943, that he did not join the Communist Party in
this country when solicited for membership because "I am not a citizen.'
There is also a showing that the respondent was a member of the Young
Communist League in Germany prior to his entry and distributed
literature in its behalf. He and his wife both admitted that they
attended Communist meetings at Madison Square Garden just prior to the
hearing in 1943.
The respondent's testimony concerning his association with and
predilections to Communism, in our judgment mitigates against his
desirability as a permanent resident. While it is true that the
respondent during the reopened hearing of 1948 disavowed any interest in
Communism and he testified on September 9, 1946, "I believe in the
democratic form of government; I am not interested in Communism any
more; I have not attended any organization whatsoever since I was at
your hearing last * * *' this may well be considered as a self-serving
declaration since the respondent is seeking relief from deportation. We
agree with the Assistant Commissioner that the respondent's deportation
may cause hardship to his citizen wife, but upon consideration of all
the factors, we are of the opinion that an order of deportation should
be entered.
Order: It is directed that the appeal be and the same is hereby
dismissed.
Editor's note. -- In Matter of S , A-1653155, B.I.A., January 17,
1949, the Board considered a request for the advance exercise of seventh
proviso relief (in preexamination proceedings) by an alien of good moral
character, and said:
"The Commissioner has declined to exercise the seventh proviso to
section 3 of the Immigration Act of 1917 in connection with appellant's
inability to read, on the ground that the appellant has no close family
ties in this country and has resided here for only a limited period.
The appellant is married and has a wife and four children residing in
Italy. His record since entry into the United States during 1938 has
been exemplary. The Attorney General in some instances has approved the
granting of seventh proviso relief in this type of case even though the
appellant's family were all abroad but the alien had resided in this
country for an extended period (see Matter of F , 1137383 (May 15, 1946)
(22 years' residence); Matter of B , 1317947 (June 24, 1946) (22 years'
residence); Matter of C , 56171/371 (June 24, 1946) (21 years'
residence); Matter of D O , 3555515 (June 24, 1946) (21 years'
residence); Matter of P , 3557040 (June 24, 1946) (19 years'
residence); Matter of R , 5028102 (June 17, 1946) (11 years'
residence). In others the Attorney General has denied seventh proviso
relief because of short residence and the fact that the alien's family
ties were abroad (Matter of F , 2588068 (July 11, 1946) (7 years'
residence); Matter of B , 4631507 (July 9, 1946) (9 years' residence)).
"This Board is of the opinion that the seventh proviso should
likewise be exercised in this case as the appellant's length of
residence in this country (10 years 3 months) approximates that found in
Matter of R (supra).'
Illiteracy -- Ground of exclusion -- Section 3, act of 1917 -- Exemption -- Evidence as to religious persecution.
A native of Poland, (area now under control of U.S.S.R.), a
member of the Roman Catholic Church, in Germany since 1943 under
the Nazi forced-labor program, who is illiterate and not otherwise
exempt from the literacy requirement may be found exempt from such
requirement under the provisions of section 3 of the act of 1917,
as one seeking to enter the United States to avoid religious
persecution in the country of her last permanent residence
(Poland), where the evidence establishes that religious
persecution exists there, even though such alien did not
personally experience such persecution.
Discussion: This case is before us on appeal from an order of the
Assistant Commissioner dated July 14, 1949, directing that the excluding
decision of the Board of Special Inquiry be affirmed. Appellant, a
42-year-old native and citizen of Poland, who is presently in Germany,
seeks admission to the United States for permanent residence under the
Displaced Persons Act of 1948 (Public Law 774 of the 80th Cong.).
Appellant was born in Nowogrodek, Poland, which is in the so-called
eastern zone of Poland now under the control of the Soviet Union, and
lived in that country until 1943, when she was sent to Germany under the
Nazi forced-labor program. Appellant is unwilling to return to Poland
and seeks to pursue her occupation as a domestic in this country; her
admission is sponsored by the National Catholic Welfare Conference, and
she has an offer of employment as a domestic in Clintonville, Wis.
Appellant is single and a member of the Roman Catholic Church.
Appellant admits that she is unable to read and, upon being tested in
the Polish language, she was found deficient in this regard, although
she is physically capable of reading.
Section 2(c) of the above-mentioned act defines an eligible displaced
person as one who is qualified under the immigration laws of the United
States for admission into the United States for permanent residence.
Section 10 of the act states that all immigration laws, including
deportation laws, shall be applicable to eligible displaced orphans and
eligible displaced persons who apply to be or who are admitted to the
United States pursuant to the act. Section 3 of the Immigration Act of
1917 provides as follows:
The following persons shall also be excluded from admission
thereto, to wit:
All aliens over 16 years of age, physically capable of reading,
who cannot read the English language, or some other language or
dialect, including Hebrew or Yiddish: Provided, * * * That the
following classes of persons shall be exempt from the operation of
the illiteracy test, to wit: All aliens who shall prove to the
satisfaction of the proper immigration officer or to the Attorney
General that they are seeking admission to the United States to
avoid religious persecution in the country of their last permanent
residence, whether such persecution be evidenced by overt acts or
by laws or governmental regulations that discriminate against the
alien or the race to which he belongs because of his religious
faith.
The Assistant Commissioner, in his order mentioned above, discusses
at length the question of whether appellant is in fact seeking "to avoid
religious persecution in the country of their last permanent residence,'
Poland; the conclusion of the Assistant Commissioner is that even if
appellant would be subject to persecution upon her return to Poland (and
the Assistant Commissioner seems doubtful of the truth of the latter
statement), her primary motive in seeking entry into the United States
is to earn a living rather than to be safe from oppression. We do not
agree with the Assistant Commissioner's view. Appellant's predominant
consideration is to settle in a country where she can freely and
securely live out her days in comparative peace. Naturally, she must
work to earn her way, just as any other United States resident does;
such a practical consideration enters into every person's design for
living. However, economic considerations are secondary to the necessity
of staying alive and living an untroubled existence, untouched by fear
of mental duress or physical violence.
Appellant may indeed have a variety of reasons motivating her in her
desire to come to this country, but these are not out chief concern at
this time. The question in the instant case is: Does appellant come
within the terms of the above-mentioned statutes? In an attempt to
picture the true situation in Poland today, the recent report dated
August 16, 1949, which was submitted by a National Catholic Welfare
Conference representative in Europe and incorporated into the record,
proves very helpful, for it is specific in its statements and
conclusions. In addition, the assertions in this report coincide in
spirit with the meager facts which have found their way into the
newspapers of this country. We feel that this report of record gives at
least a minimum picture of the hardships, problems, fear, and unrest
which presently exist in Poland, and shows that there is a genuine
Polish refugee problem since those persons who escape through the Iron
Curtain do fear to return home.
The Assistant Commissioner stated in his order that appellant had
failed to prove that she would be subject to persecution upon her
return; however, we note that in 1943, when appellant was taken from
Poland to Germany by the German occupation forces, the Communists did
not control the Polish economy and she naturally had no opportunity to
experience any personal persecution at their hands. However, this does
not affect her position under section 3 of the act of 1917, for the test
set out in that statute is the attitude of the Polish Government toward
the religious group to which she belongs. Both the report of record and
the newspapers of this country make it clear that the attitude of the
present Polish Government toward Roman Catholics in that country is
extremely destructive and hostile and that no opportunity is overlooked
in an effort to destroy the influence of that religion or any other
within the confines of Poland.
Therefore, in view of the foregoing facts, it is concluded that
appellant is exempt from the literacy test by virtue of the exception
found in section 3, act of 1917, as one who seeks admission to this
country to avoid religious persecution in the country of her last
permanent residence -- Poland. /1/
Order: It is hereby ordered that the appeal be sustained.
(1) See also, Matter of M , 56107/186 (July 11, 1946) (unreported).
Quota preference status -- Skilled agriculturist -- Section 6(a)(1)( B) of the Immigration Act of 1924 -- When right to preference established -- Necessity of continuance of employment as such after arrival.
An alien was issued a first preference quota immigration visa under section 6(a)(1)(B) of the Immigration Act of 1924 and this preference was established as of the date the United States consul recorded the alien as a preference applicant on the basis of satisfactory evidence submitted to the consul that the alien was a skilled agriculturist and the evidence presented convinced the consul that the alien intended in good faith to engage in agriculture after his arrival in the United States; the regulations do not require that the alien continue such employment after arrival here, but only that we have a bona fide intention of engaging in agricultural work after arrival.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 -- Not preference quota immigrant as specified in
visa.
Discussion: This case presents an appeal from an order entered by
the Assistant Commissioner on September 16, 1949, which affirms the
appellant's exclusion by a Board of Special Inquiry held at Ellis
Island, New York, N.Y., on August 29, 1949.
The record relates to a native and citizen of Norway, 15 years of
age, who arrived in the United States at New York, N.Y., on August 26,
1949. She presented and surrendered immigration visa No. 583, issued
under the provisions of section 6(a)(1), act of 1924, by the United
States consul, Bergen, Norway, on July 26, 1949. She presented a
Norwegian passport valid until June 26, 1951. The appellant was coming
to the United States to join her father who had been admitted to this
country in October 1948 under the provisions of section 6(a)(1)(B). The
record shows that the appellant's father paid for her passage to the
United States.
The appellant's father was issued a preference-quota visa on the
basis of his being a person skilled in agriculture. The record shows
that the father of the appellant abandoned his calling as a person
skilled in agriculture at the end of May 1949 and since that time he has
been employed as a fisherman at New Bedford, Mass. The record shows
that the appellant was coming to the United States to join her father,
although her immediate destination in the United States was the home of
her uncle located at 280 Fourteenth Street, Brooklyn, N.Y.
The Assistant Commissioner in his order of September 16, 1949,
adopted the findings of fact and conclusions of law reached by the Board
of Special Inquiry and affirmed the appellant's exclusion under section
13(a)(4) of the Immigration Act of 1924 in that she was an immigrant who
was not a first-preference quota immigrant as specified in her
immigration visa. This Board, after a careful study of the record, is
of the opinion that the appellant is admissible to the United States
under section 13(a) of the Immigration Act of 1924, as amended.
Section 6(a)(1) of the Immigration Act of 1924 provides as follows:
Immigration visas to quota immigrants shall be issued in each
fiscal year as follows:
(1) Fifty per centum of the quota of each nationality for such
year shall be made available in such year for the issuance of
immigration visas to the following classes of immigrants, without
priority of preference as between such classes:
(a) Quota immigrants who are the fathers or the mothers of
citizens of the United States who are 21 years of age or over, or
who are the husbands of citizens of the United States by marriages
occurring on or after January 1, 1948; and
(b) In the case of any nationality the quota for which is 300
or more, quota immigrants who are skilled in agriculture, and the
wives, and the dependent children under the age of 18 years, of
such immigrants skilled in agriculture, if accompanying or
following to join them.
Notes 156, 157, and 158 of Visa Supplement A of the Foreign Service
Regulations, Notes to Section XXII-1 (relating to the admission of
aliens into the United States), deal with first-preference categories.
Note 157 relates to citizens' relatives (sec. 6(a)(1)(A)). Note 158,
which relates to skilled agriculturists, states:
The right of skilled agriculturists to preference shall be
considered to have been established as of the date the consul
records the alien as a preference applicant on the basis of the
alien's submission of satisfactory evidence that the alien is a
skilled agriculturist.
Consuls should require convincing evidence that applicants have
the bona fide intention of engaging in agricultural work after
arrival in the United States. * * *
Section 425.65 of the Immigration Manual states that quota immigrants
* * * who are skilled in agriculture, and their wives and dependent
children under 18 years of age, if accompanying or following to join
them, are given preference in the issuance of immigration visas to the
first 50 percent of the quota * * *. The alien must in good faith
intend to engage in agricultural work after his arrival in the United
States.
Section 165.2, of Title 8. C.F.R. pertains to the date of
establishment of a nonquota or preference quota status. In this section
of the regulations no reference is made to section 6(a)(1)(B) of the
Immigration Act of 1924.
The record establishes that the father of the appellant was issued a
first-preference quota immigration visa under the provisions of section
6(a)(1)(b) of the Immigration Act of 1924 and that his preference was
established as of the date that the consul recorded the alien as a
preference applicant on the basis of his submission of satisfactory
evidence to the consul that he was a skilled agriculturist and on the
presentation of convincing evidence that he intended to engage in
agriculture after his arrival in the United States. The statute does
not say, nor is there any mention made in the regulations which
implement the statute, that an alien, after establishing his preference
on the basis of being a skilled agriculturist, must continue that
employment after his arrival in the United States. The regulations
provide only that he must have a bona fide intention engaging in
agricultural work after arrival.
On the basis of the evidence contained in the record, we find that
the subject hereof is the minor daughter of an alien lawfully admitted
to the United States, who, at the time he procured his visa, was found
to be a skilled agriculturist by the United States consul in Norway, and
that the appellant is following to join him and is, therefore,
admissible to the United States under the provisions of section 13(a)(
4) of the Immigration Act of 1924. The appeal will be sustained.
Order: It is ordered that the appeal be sustained; and
It is further ordered, That the alien be admitted to the United
States for permanent residence.
Citizenship -- Child born abroad (1947) to alien mother, who married the citizen father after the child's birth -- Acquisition, as of date of birth, by child born out of wedlock, in certain cases -- Section 205 of the Nationality Act of 1940 -- Requirements as to father's residence here before birth of child -- Section 201(g) of the Nationality Act of 1940 -- Applicability of section 201(g) (supra) -- Applicability of section 201(i) of the Nationality Act of 1940, as amended.
1. A person born abroad after January 12, 1941, who is illegitimate at birth, but later legitimated, can acquire United States citizenship at birth only under the provisions of section 205 of the Nationality Act of 1940 (which act became effective January 13, 1941).
2. Section 205 (supra) includes as beneficiaries those falling within the provisions of section 201(g) of that act, but where the citizen father (the mother being an alien) is under 21 at the time of such child's birth, the prerequisite for acquisition, i.e., the citizen parent must have resided in the United States 10 years, at least 5 of which were after reaching the age of 16, cannot be met.
3. Section 205 (supra) does not include as beneficiaries those falling within section 201(i) of the Nationality Act of 1940, as amended, so that though this father can meet the United States residential prerequisite under section 201(i), there is no acquisition of citizenship by such child, at birth.
4. The presumption that section 201(i) (supra) (added in 1946) would
have been included among the beneficiaries specified in section 205 (in
act of 1940) had section 201(i) been in the original act of 1940, cannot
be indulged. (See 3, I. & N. Dec. 225 and Interim Decision No. 304).
Discussion: The subject was born out of wedlock in Vienna, Austria,
on January 7, 1947, his mother being a citizen of Austria, and his
father being a native and citizen of the United States who was born in
the State of Wyoming on August 6, 1927, and who was serving in the
United States Army at the time of subject's birth. The parents were
married in Vienna on August 16, 1947. On December 4, 1947, the subject
was admitted into the United States at New York, N.Y., under section 3(
2) of the Immigration Act of 1924, in accordance with the provision of
O.I. 175.48 V, being considered an alien child born of a relationship
which existed prior to the marriage of his mother to a United States
citizen serviceman. He was accompained at that time by his mother, who
was admitted under Public Law 271. The district director, New York, N.
Y., in a memorandum dated April 29, 1948, reported that the
investigation in the case had established that the subject was a United
States citizen under the provisions of section 201(i) of the Nationality
Act of 1940, as amended, and recommended that authority be granted to
amend the record of his arrival to show admission as a United States
citizen.
The question presented is whether the subject acquired United States
citizenship at birth under the provisions of section 201(i) of the
Nationality Act of 1940, as amended.
The evidence in the case establishes the facts set forth in the
opening paragraph of this memorandum, as well as the fact that the
subject's father resided in the United States until he was sent overseas
by the Army. He was inducted into the United States Army on September
28, 1945, was honorably discharged on December 4, 1945, and thereupon
reenlisted for 3 years in the Regular Army. In addition, evidence has
been submitted in the form of a document written in the German language
which allegedly establishes the legitimacy of the subject. That
document has not been translated but for reasons hereinafter noted it is
believed a translation thereof is unnecessary.
Under the provisions of section 201(g) of the Nationality Act, a
person born outside the United States and its outlying possessions
acquired United States citizenship at birth if one of his parents at the
time of his birth was a citizen of the United States who, prior to the
birth of the child, had 10 years residence in the United States or one
of its outlying possessions, at least 5 of which were after attaining
the age of 16 years, the other being an alien.
Under the provisions of section 201(i) of the Nationality Act
(supra), a person acquired United States citizenship at birth outside
the United States and its outlying possessions if one of his parents was
a citizen of the United States who served in the United States Army
subsequent to December 7, 1941, and prior to December 31, 1946, who,
prior to the birth of the child, had 10 years residence in the United
States or one of its outlying possessions, at least 5 of which were
after attaining the age of 12 years, the other parent being an alien.
Section 205 of the Nationality Act of 1940 reads 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.
The subject was born prior to his father's twenty-first birthday.
Under such circumstances it was not possible for his father to have
resided in the United States for at least 5 years after attaining the
age of 16 years, prior to the subject's birth. Since the subject's
mother was an alien at the time of his birth it is concluded the subject
could not have acquired United States citizenship at birth under section
201(g) of the Nationality Act (O.I. 800.2 I). However, his father
served in the United States Army between December 7, 1941, and December
31, 1946, and, therefore, it would appear that the subject, being born
after his father had resided in the United States for 10 years, 5 years
of which were subsequent to his twelfth birthday and prior to the
applicant's birth, might have a claim to United States citizenship at
birth under the provisions of section 201(i) of the Nationality Act, as
amended.
On facts similar to the instant case the Central Office in an order
in the case of E G D (0502-4421) dated December 31, 1948, held that the
subject therein did so acquire United States citizenship at birth under
section 201(i) of the Nationality Act of 1940, as amended. However, it
is believed an erroneous conclusion was reached in that case. In the D
case, as well as in the instant case, the subject was an illegitimate
child at birth. Illegitimate children born outside the United States
who are legitimated subsequent to birth are included within the benefits
of certain parts of section 201 of the Nationality Act by section 205
thereof. Without the latter section there would be no authority for the
acquisition of United States citizenship at birth by such persons. To
hold that such persons would acquire United States citizenship at birth
without the provisions of section 205 would be to hold that that section
is surplusage. It is not believed that Congress would have passed such
legislation has it not believed it was necessary. Under those
circumstances it would appear that persons born abroad after January 12,
1941, who are illegitimate at birth, and who are subsequently
legitimated, can acquire United States citizenship only under the
provisions of section 205.
It is noted that section 201(i) (supra) is not mentioned in section
205. It is true that section 201(i) was added to the Nationality Act on
July 31, 1946, long after the passing of the act as a whole. Therefore,
it could be presumed that section 201(i) would have been included in
section 205 had it been in existence at the time the balance of the act
was passed. However, such presumptions are not to be indulged in the
administration of a law. The language of section 205 is clear and
unambiguous. Its benefits may be granted only to persons who are
specifically included therein.
Such a line of reasoning is consistent with the Central Office order
dated December 16, 1947 (500/2 sec. 339, 500/2 sec. 201) in which it was
held that a person who acquired United States citizenship under section
201(i) (supra) is not entitled to a certificate of citizenship because
section 201(i) (supra) is not mentioned in section 339 of the
Nationality Act, the section which authorizes the issuance of
certificates of citizenship to certain persons.
Inasmuch as the facts in this case establish that the subject was an
illegitimate child at birth who could have acquired United States
citizenship at birth only under section 201(i) of the Nationality Act of
1940, as amended, and since that section is not included within the
provisions of section 205 of the act, it is concluded that the subject
did not acquire United States citizenship at birth and was an alien at
the time of his admission to the United States. Accordingly, the record
of his arrival at the port of New York, N.Y., may not be changed to show
that he was lawfully admitted to the United States as a citizen.
It is recommended That a copy of this memorandum be sent to the
District Director, New York, N.Y., with instructions to take such steps
as necessary to adjust the subject's immigration status.
So ordered.
Editor's Note. -- The first paragraph of section 205 of the
Nationality Act of 1940 has been held applicable only to persons born on
or after January 13, 1941, the effective date of that act. It has been
held also that an illegitimate child born to an American mother
specified in the second paragraph of section 205, supra, before January
13, 1941, who was not legitimated before January 13, 1941, became an
American citizen at birth (but that the provisions of the second
paragraph of section 205, supra, do not operate upon a child legitimated
before January 13, 1941). It has been held also that such a child born
after January 13, 1941, of a mother specified in the second paragraph of
section 205 (supra) acquired citizenship at birth of which it would not
be divested by a subsequent legitimation (Matter of A , unreported, C.O.
Mar. 2, 1945, 56213/973, 55850/636; also, Matter of O B , unreported,
B.I.A. Jan. 18, 1945; also Matter of S , unreported, B.I.A., 55996/214,
Dec. 26, 1941.
Crime involving moral turpitude -- Lewdness (open) -- New Jersey.
The offense of open lewdness in violation of New Jersey Revised Statutes 2:140-1 (1942) involves moral turpitude. (See 2, I. & N. Dec. 533.)
CHARGE:
Warrant: Act of 1917 -- Sentenced more than once after entry for
crimes -- Keeping place of prostitution and open lewdness.
Discussion: This record is before us on appeal from an order entered
by the Assistant Commissioner May 26, 1949, directing the respondent's
deportation to Italy on the charge stated above. Execution of the
warrant of deportation was stayed for a period of 30 days from date of
notification of decision for the purpose of permitting the respondent to
file an application for a pardon. Counsel on appeal takes exception to
the order on the ground that one of the crimes which serves as a basis
for deportability does not involve moral turpitude.
The respondent, a native and citizen of Italy, male, 56 years of age,
unmarried, testified that he last entered the United States at the port
of New York on April 21, 1912. This entry cannot be verified. There is
affirmative evidence that the respondent was convicted, of the crime of
keeping place for prostitution, in the Court of Oyer and Terminer,
Passaic County, N.J., on December 10, 1926, and was sentenced to
imprisonment for a term of 1 year, of which sentence he actually served
10 months in prison. There is also affirmative evidence that the
respondent was convicted on December 10, 1926, in the Court of Oyer and
Terminer, Passaic County, N.J., of the crime of attempt and intent to
receive earnings of a prostitute, for which sentence was suspended. The
respondent admits that on December 18, 1942, he was convicted in the
Court of Oyer and Terminer, Passaic County, N.J., of the crime of open
lewdness, for which he was sentenced to imprisonment for 2 years, of
which sentence he actually served 9 months and 20 days' imprisonment.
Counsel contends that the crime of which the respondent was convicted
in 1942 was not open lewdness but fornication, a crime which does not
involve moral turpitude. We think counsel's position untenable for the
reasons stated below.
The 1942 conviction was on an indictment in two counts. The
pertinent portion of the first count reads as follows:
That R C and (respondent) * * * wilfully and unlawfully did
openly and notoriously live, dwell and cohabit with each other in
lewdness, fornication and adultery, they the said R C and
(respondent) not being married to each other to the great scandal
and common nuisance of the people of this State and to the
corruption of their morals and to the evil example of all others
in like case offending * * *.
Count two of the indictment merely charges a single act of
fornication.
We feel reasonably certain that the first count above referred to is
intended to allege a violation of New Jersey Revised Statutes 2:140-1,
which provides as follows:
Any person who shall be guilty of open lewdness or any
notorious act of public indecency, grossly scandalous, and tending
to debauch the morals and manners of the people, or who shall in
private be guilty of any act of lewdness or carnal indecency with
another, grossly scandalous and tending to debauch the morals and
manners of the people, shall be guilty of a misdemeanor.
The sole issue before us is whether the foregoing statute defines a
crime involving moral turpitude. Counsel in his brief argues that the
indictment does not allege lewdness in the sense of indecent exposure in
public or perverted sex acts, but merely charges that the respondent
unlawfully cohabited with a woman not his wife openly and notoriously in
the sense that the community knew about it and that such illicit
cohabitation in private cannot be said to involve moral turpitude.
In dealing with the subject of "open lewdness,' the New Jersey Court
of Errors and Appeals has said:
Neither adultery nor fornication, committed in secret and not
constituting cohabitation publicly indecent in the manner of
association, is lewdness within the intentment of our law.
Originally, the Crimes Act condemned only "open lewdness, or any
notorious act of public indecency grossly scandalous and tending
to debauch the manners and morals of the people * * *.' Private or
secret indecency is not criminal, since the common law does not
deem such offensive to the public morality (Schoudel v. State, 57
N.J.L. 209).
In 1906 the cited provision of the Crimes Act relating to
lewdness was amended to include within that criminal category
persons "who shall in private be guilty of any act of lewdness or
carnal indecency with another, grossly scandalous and tending to
debauch the manners and morals of the people.' * * * Lewdness
within the concept of the statute, imports some degree of sexual
aberration or impurity. It denotes gross and wanton indecency in
the sexual relations (State v. Brenner, 132 N.J.L. 607, 609, 610).
As used in a similar statute /1/ rendering "open lewdness,' criminal,
the term has been defined as "the irregular indulgence of lust whether
public or private' (Commonwealth v. Wardell, 128 Mass. 52; 35 Am.Rep.
357). Criminal lewdness as defined by the statute of Massachusetts has
been found to connote moral turpitude (Lane ex rel. Cronin v.
Tillinghast, 38 F.(2d) 231 (C.C.A. 1, 1930)).
Because of the interpretations above referred to by the State courts
of both New Jersey and Massachusetts and the Circuit Court of Appeals of
the First Circuit, it is concluded that the offense for which the
respondent was convicted in 1942 involves moral turpitude.
Counsel during oral argument referred to our interpretation of a
Wisconsin statute /2/ dealing with lewd and lascivious cohabitation
where it was determined that moral turpitude was not involved (Matter of
McS , 56131/916, June 9, 1944). Counsel argues that the indictments in
the case before us and the cited case /3/ are similar in that the
lewdness referred to therein consisted merely in the fact that there was
open and notorious cohabitation.
We have reviewed our opinion in Matter of McS (supra). We agree with
counsel that both the indictment and the statute are similar. However,
there is a basic difference in the two cases. The issue in the McS case
(supra) of whether the crime of lewd and lascivious cohabitation
involves moral turpitude was concerned with the grant of discretionary
relief. In determining whether or not discretionary relief is
warranted, inquiry may be had into the facts and circumstances
surrounding the commission of the crime (Matter of G , 56040/547, 1, I.
& N. Dec. 8, Nov. 22, 1940). But here the issue of moral turpitude is
concerned with whether the alien involved is deportable. Under these
circumstances, we may not go behind the record of conviction (U.S. ex
rel. Zaffarano v. Corsi, 63 F.(2d) 757).
Furthermore, in the McS case (supra), since we were not concerned
with a deportation or exclusion charge, we were not obligated to
consider the rule laid down by the Circuit Court of Appeals, First
Circuit, in the case of Lane ex rel. Cronin v. Tillinghast (supra). The
Cronin case concerned an alien who had been found subject to deportation
on the criminal charge that within 5 years of entry he had been
sentenced to imprisonment for a term of 1 year or more because of
conviction in this country of a crime involving moral turpitude
committed within 5 years of entry, to wit: lewdness, as defined by
Massachusetts statute (supra). Our observation in the McS case that the
Wisconsin statute did not involve moral turpitude is dicta for the
reason that the alien there was not deportable on a criminal charge.
The discussion all centered around the issue of relief and not the issue
of deportability.
Counsel also urges in his brief that the respondent's plea of non
vult contendere to both counts of the indictment does not necessarily
warrant a conclusion that there was a conviction on the first count. We
find counsel's position untenable. The second count charges the
commission of a single act of fornication and is punishable by a fine
not exceeding $50 or imprisonment not exceeding 6 months or both (title
2, ch. 133, sec. 1, N.J. statutes). However, the respondent was
sentenced for a maximum term of 2 years and a minimum term of 1 year.
This would not have been possible if the respondent had been convicted
only on the second count charging a single act of fornication. The
appeal will be dismissed.
Order: It is directed that the appeal be and the same is hereby
dismissed.
(1) Chapter 272, section 53, Annotated Laws of Massachusetts, "lewd,
wanton, and lascivious persons in speech and behavior * * * may be
punished by imprisonment in the Massachusetts Reformatory, etc.
(2) Section 351.04, Wisconsin statute: "Any man and woman, not being
married to each other, who shall lewdly and lasciviously cohabit and
associate together, or any man or woman, married or unmarried, who shall
be guilty of open and gross lewdness and lascivious behavior, every such
person shall be punished * * *'
(3) The indictment charges that McS and M Z * * * not being then and
there married to each other, unlawfully, wilfully, and maliciously did
lewdly and lasciviously cohabit and associate together * * * and were
then and there guilty of lewd and lascivious behavior.
Seventh proviso relief -- Section 3, Immigration Act of 1917 -- Advance discretionary relief in deportation proceedings -- Where such relief granted to one formerly a member of one of the excludable classes enumerated in the act of October 16, 1918, as amended. (See 3, I. & N. Dec. 784.)
An alien with an otherwise favorable record who is eligible for seventh proviso relief under section 3 of the Immigration Act of 1917 is not barred from such relief merely because (the ground of deportation and) the ground of inadmissibility to be waived upon his return is that he was a member of the Communist Party of the U.S.A. in the past and thus a member of one of the excludable classes enumerated in the act of October 16, 1918, as amended. Such relief may be granted where the circumstances are held to justify such discretionary action.
CHARGES:
Warrant: Act of 1924 -- No immigration visa.
Lodged: Act of 1918, as amended -- After entry into the United
States became a member of an organization which advocated the overthrow of the Government of the United States by force and violence.
Act of 1918, as amended -- After entry into the United States
became a member of an organization which distributed printed
matter which advocated the overthrow of the Government of the
United States by force and violence.
Discussion: On June 10, 1949, the Assistant Commissioner found that
the respondent was subject to deportation nd ordered that he be
deported. The record is before us on appeal from that order. The
respondent was born in Cologne, Germany, on February 6, 1904. He came
to the United States as a seaman at the port of New York on the S.S.
New York on July 4, 1927, and deserted. It was his intention at the
time of his arrival to remain in the United States permanently and he
has since remained in this country. As he was not in possession of an
unexpired immigration visa at the time of this entry and was not
exempted from the presentation thereof, the Assistant Commissioner
properly found that he was subject to deportation on the above-stated
documentary ground.
The Assistant Commissioner also found that the respondent was subject
to deportation under the act of October 16, 1918, as amended by the acts
of June 5, 1920, and June 28, 1940, as an alien who after entry into the
United States became a member of an organization which advocated the
overthrow of the Government of the United States by force and violence
and which distributed printed matter which so advocated.
The respondent admitted that for a period of 1 years between 1929 and
1931, he had been a member of the Communist Party of the United States
at Stamford, Conn. The Assistant Commissioner found that during this
period the Communist Party advocated the forcible overthrow of the
Government of the United States. We have carefully considered the
documentary evidence and the oral testimony. We have reviewed the
analyses of the evidence by the presiding inspector and the Assistant
Commissioner. We find on the basis of the evidence adduced and prior
court decisions that during the period of the respondent's membership in
the Communist Party of the United States, it advocated the overthrow of
the Government of the United States by force and violence and that it
distributed printed matter which so advocated (Matter of H , 5300756,
May 13, 1949; Matter of F , 3430058, July 1, 1949; Matter of M ,
3407165, Aug. 12, 1949; Matter of O , 4690122, Sept. 13, 1949).
It is, therefore, our conclusion that the respondent is subject to
deportation on all of the above-stated grounds.
We are confronted with the question, however, of whether in this case
we should exercise the discretion granted to the Attorney General under
the seventh proviso to section 3 of the Immigration Act of February 5,
1917, and section 19(c) of that act, and enable the respondent to adjust
his immigration status and become a legal resident of this country.
The record shows that the respondent was a member of the Communist
Party for 1 year about 20 years ago. The period of his membership
occurred very shortly after his arrival in this country, at a time when
he was unfamiliar with the English language or the customs of this
country. There is no evidence that he was ever an active member of the
Communist Party. The sole evidence is that he attended several meetings
of the organization. Since 1930 or 1931 he has not been connected with
the Communist Party nor has he been associated in any way with any other
organization advocating Communism or Communist principles. The
respondent testified that he left the Communist Party in 1930 and 1931
because it gave him no "spiritual uplift.' He has been actively engaged
for the past several years in a religious movement known as Buddhism.
He has recently published a book on Buddhism called "The Eternal
Fountain.' He has been steadily employed as a compositor since 1934 and
now earns about $100 a week. He supports a former wife and child by
contributing $29 each week toward their maintenance; and he lives with
and supports his present wife and child. He has no criminal record
whatsoever.
In view of the foregoing, we believe that the discretion granted by
the Congress of the United States to the Attorney General under the
seventh proviso to section 3 of the Immigration Act of 1917 and section
19(c) of the act should be exercised in this case so that the respondent
might adjust his immigration status and become a legal resident of the
United States.
Order: It is ordered that an order of deportation be not entered at
this time, but that the alien be required to depart from the United
States, without expense to the Government, to any country of his choice,
within 90 days after notification of decision, conditioned upon
arrangements being made with the local immigration office for
verification of departure.
It is further ordered, That if the alien applies for admission to the
United States within 60 days after his authorized departure, he be
admitted under the seventh proviso to section 3 of the Immigration Act
of 1917, if otherwise admissible than as one who has been a member of
one of the excludable classes enumerated in the act of October 16, 1918,
as amended.
As a question of policy is involved in the grant of seventh proviso
relief to an alien who has been a member of the Communist Party, in
accordance with the provisions of title 8, section 90.12, Code of
Federal Regulations, the Board refers the case to the Attorney General
for review of its decision.
The decision and order of the Board of Immigration Appeals dated
November 17, 1949 are hereby approved.
Editor's note. -- On Jan. 5, 1950, the B.I.A. granted preexamination.
On July 24, 1951, the C.O. ordered deportation because of failure to
take advantage of privileges granted. On March 25, 1952, the B.I.A.
dismissed his appeal from such order of deportation, noting Harisiades
v. Shaughnessy, 342 U.S. 580, Carlson and Zydok cases, 342 U.S. 524, as
determining the constitutionality of the Alien Registration Act of 1940
and the Internal Security Act of 1950.
Seventh proviso relief -- Section 3, Immigration Act of 1917 -- Advance grant of this discretionary relief in preexamination proceedings -- Where such relief granted to one formerly affiliated with one of the excludable classes enumerated in the act of October 16, 1918, as amended. (See 3, I. & N. Dec. 787.)
An alien with an otherwise favorable record, who is eligible for seventh proviso relief under section 3 of the Immigration Act of 1917, is not barred from such relief merely because the ground of inadmissibility to be waived upon his return is that he was affiliated with the Communist International in the past through his membership in the German Communist Party and thus affiliated with one of the excludable classes enumerated in the act of October 16, 1918, as amended. Such relief may be granted where the circumstances are held to justify such discretionary action. (See Interim Decision No. 338.)
INADMISSIBLE:
Act of 1918, as amended -- Affiliated with an organization that
advocated the overthrow of the Government of the United States by
force and violence.
Discussion: On February 11, 1947, and October 20, 1948, the
appellant appeared before a Board of Special Inquiry in preexamination
proceedings at Philadelphia, Pa., for the purpose of having his
admissibility determined were he to depart from the United States and
reapply for admission in possession of an appropriate immigration visa.
The Board of Special Inquiry found that the appellant would be
inadmissible to the United States although in possession of an
immigration visa, under the act of October 16, 1918, as amended by the
acts of June 5, 1920 and June 28, 1940, because between 1921 and 1928 he
had been affiliated with an organization that advocated the overthrow of
the Government of the United States by force and violence.
The Assistant Commissioner affirmed the finding of the Board of
Special Inquiry. The record is before us on appeal.
Counsel for the appellant has pretermitted the inadmissibility of the
appellant on the foregoing ground, and has requested that we grant the
appellant the discretionary relief set forth in the seventh proviso to
section 3 of the Immigration Act of 1917.
The appellant was born in Muskau, Silesia, Germany, on February 9,
1900. In 1919 he joined the Independent Social Democratic Party of
Germany and was a member of that organization when it merged into the
Communist Party of Germany in 1921. He remained a member of the
last-mentioned organization until December 1928, when he was expelled.
The Board of Special Inquiry and the Assistant Commissioner have
found that during the period of the respondent's membership in the
Communist Party of Germany it was affiliated with the Communist
International; that the Communist International advocated the overthrow
of the Government of the United States by force and violence; and that
hence the appellant was affiliated with an organization that advocated
the overthrow of the government of the United States by force and
violence.
There is no evidence that the appellant has, at any time since 1928,
been a member of or affiliated with any Communist organizations of any
organizations expousing Communist doctrines. The sole evidence of
activity by the appellant during the period of his membership in the
Communist Party of Germany, other than attendance at meetings, consists
of his own testimony that he wrote several articles for a Communist
Party newspaper in the Province of Silesia, and that he was once a
delegate to a conference of the Communist Party of Germany.
Copies of the appellant's articles are not in evidence. The
appellant, however, testified that they concerned "social laws and
social security.' That the appellant was expelled from the Communist
Party of Germany is corroborated in the record by an item which appeared
in a German newspaper on December 22, 1928.
The appellant testified before the Board of Special Inquiry that he
never personally believed in or advocated the overthrow of any
government by force or violence. He asserted that during the period of
his membership in the Communist Party of Germany, he was primarily
interested in advancing the interests of labor unionism.
The appellant came to the United States on April 16, 1941, and was
admitted as a temporary visitor. Pursuant to several extensions granted
to him he has continued to make his home in this country. He lives in
Pennsylvania with his wife (who is likewise attempting to adjust her
status in this country, but whose case presents no unusual problem) and
is self-employed as an electrician. He has been investigated on several
occasions by the Immigration and Naturalization Service and by the
Federal Bureau of Investigation and no evidence of communism or
subversive activities has come to light. He is favorably regarded in
the community in which he lives and several of his neighbors have taken
an active interest in assisting him to adjust his immigration status.
He has no criminal record whatsoever.
Upon a review of the foregoing evidence it appears that the appellant
was a member of the Communist Party of Germany for 7 years commencing
when he was 21 years of age and ending when he was 28 years old. Since
then, for more than 20 years, he has been disassociated from the
Communist movement. Under the circumstances, it is our opinion that
this defect in his otherwise good record should not bar him from
becoming a permanent legal resident of the United States.
Order: It is ordered that the decision of the Assistant Commissioner
be affirmed insofar as he finds the appellant inadmissible as one who
has been affiliated with one of the excludable classes enumerated in the
act of October 16, 1918, as amended; but that if the appellant applies
for admission to the United States within 6 months from the date of this
order, in possession of an appropriate immigration visa, he be admitted
under the seventh proviso to section 3 of the Immigration Act of
February 5, 1917, if then in all respects admissible, except for his
affiliation with one of the afore-mentioned excludable classes from 1921
to 1928.
As a question of policy is involved in the grant of seventh proviso
relief to an alien who has been affiliated with a proscribed
organization, in accordance with the provisions of title 8, section
90.12, Code of Federal Regulations, the Board refers the case to the
Attorney General for review of its decision.
The decision and order of the Board of Immigration Appeals dated
November 8, 1949, are hereby approved.
Excludability -- Ground of past membership in proscribed organization -- Section 1(c) and section 1(e) of the act of October 16, 1918, as amended -- Temporary exclusion under 8 C.F.R. 175.57 -- Later hearing before a Board of Special Inquiry (8 C.F.R 175.57(b)) -- Evidence re the Labor Progressive Party of Canada (from at least November 1943 to November 1945) -- Burden of proof in exclusion proceedings.
1. Where an officer of this Service has temporarily excluded an alien under the provisions of 8 C.F.R. 175.57 because the alien's entry was deemed prejudicial to the public interest (within one of the categories set forth in 8 C.F.R. 175.53), a hearing before a Board of Special Inquiry may be directed under 8 C.F.R. 175.57(b) to determine the alien's admissibility to the United States.
2. Where the alien admitted membership in the Labor Progressive Party of Canada from 1943 to date, and this organization was the "Communist Party of Canada,' the documents introduced by the Government and the testimony of a Government witness regarding this party during the witness's membership from November 1943 to November 1945, may constitute a proper basis for finding that this party, from at least November 1943 to November 1945, advocated the overthrow by force and violence of the Government of the United States, where the alien has failed to introduce any affirmative evidence into the record on this point, such as to outweigh the evidence adduced by the Government.
3. The uncontroverted evidence of distribution of literature by this party from at least November 1943 to November 1945, which literature has been held to advocate the overthrow by force and violence of the Government of the United States, sufficiently establishes the proscribed nature of this organization for the period stated (act of 1918, as amended as a distributor and possessor for distributing such literature.
4. In exclusion proceedings, the burden of proof is upon the alien to establish admissibility under section 23 of the Immigration Act of 1924.
EXCLUDED:
Act of 1918, as amended -- Member of organization that advocates
the overthrow by force or violence of the Government of the
United States. Act of 1918, as amended -- Member of an organization that
distributes or has in its possession for the purpose of
distribution, any written or printed matter advocating the
overthrow by force or violence of the Government of the
United States.
Discussion: The subject of these proceedings, age 60, female, native
of New Zealand, citizen of Canada, applied for admission to the United
States as a visitor on July 22, 1949, at Toronto, Ontario, and was
temporarily excluded under the provisions of section 175.57, title 8,
Code of Federal Regulations, for the reason that it appeared she was
excludable under one of the categories set forth in 8 C.F.R. 175.53 as
an alien whose entry is deemed prejudicial to the public interest. On
August 9, 1949, pursuant to the provisions contained in 8 C.F.R.
175.57(b), the Commissioner directed that the subject be accorded a
hearing before a Board of Special Inquiry to determine her admissibility
to the United States. She was granted a hearing at Buffalo, N.Y., on
September 21, 1949, and was thereafter ordered excluded by the Board of
Special Inquiry on the grounds above indicated. She has entered an
appeal from the excluding decision.
The appellant admits membership in the Labor Progressive Party of
Canada from November 1943 to the present time. The sole issue in this
case is whether the Labor Progressive Party is an organization of the
kind described by the act of October 16, 1918, as amended. If the Labor
Progressive Party is held to be an organization proscribed by that act,
the appellant, an admitted member thereof, must be found inadmissible to
the United States; if not, the appeal must be sustained and her
admission authorized.
The appellant, when asked whether she had ever belonged to the
Communist Party of Canada, replied without equivocation, "The Labor
Progressive Party is the Communist Party of Canada.' She further stated
that the Labor Progressive Party is headed by the same persons and
officers who formerly headed the Communist Party of Canada; and that it
continues to carry out the aims, principles, and objectives of the
former Communist Party of Canada.
To establish the aims and principles and the nature of the
organization known as the Labor Progressive Party of Canada, the
Government presented a witness who was previously a member of both the
Communist Party and the Labor Progressive Party of Canada and, in
addition, introduced into evidence the documents numbered exhibits 1 to
5 inclusive. /1/
A W W , Jr., testified that he joined the Communist Party of Canada
in 1934; and that from 1937 until August 1943 he was a member of the
National Committee of the Communist Party. /2/ He further testified
that in 1940 the Communist Party in Canada was declared to be illegal
and went underground; that the party leadership thereupon reached a
decision to form a new organization which would operate under another
name as a front for the Communist Party; that meetings were called by
Tim Buck, the general secretary of the Communist Party of Canada, for
the purpose of planning the mechanics of creating the new organization;
that in August 1943, the Labor Progressive Party emerged as a front for
the Communist Party. The witness also stated that he joined the Labor
Progressive Party about the beginning of 1944, upon instructions from an
official of the Communist Party, and he remained a member of the Labor
Progressive Party until the middle of November 1945.
The testimony, as given both by the appellant and by the witness,
clearly establishes the fact that since 1943 the Communist Party in
Canada has operated under the name of the Labor Progressive Party. The
witness also stated that the Communist Party of Canada had been
affiliated with the Communist International; that the Communist
International was dissolved during the war; that a world-wide
organization of Communist parties thereafter came into being under a
disguised form; and that the Labor Progressive Party was affiliated
with the Communist Party in other countries. /3/ The witness further
testified that the aims and objectives of the Labor Progressive Party
were directed toward the forcible overthrow of the constituted
government of Canada and the replacement of the present Canadian
Government with a Soviet form; but that these objectives were directed
generally toward all capitalist States, including the United States,
which is regarded by all Communist parties as one of the most powerful
capitalist countries.
The witness identified exhibits 1 to 4 inclusive, as documents which
were circulated and distributed by the Labor Progressive Party from
November 1943 to November 1945, and which reflected the aims and
principles of the Labor Progressive Party during that same period of
time. These documents were entered into evidence without objection by
the appellant, who testified that she had herself read a great deal of
Communist literature, including the Communist Manifesto, Foundations of
Leninism, and Left Wing Communism, and further, that she believed in
Marxist-Leninist principles as advocated by the Communist Party of
Canada.
The teachings of Marx, Engels, Lenin, and Stalin, as contained in
exhibits 1 to 4 inclusive, have as a basic premise the doctrine of
forceful and violent overthrow of capitalist governments throughout the
world (Matter of H , A-5300756 (B.I.A. May 13, 1949); Matter of O ,
A-4690122 (B.I.A. Sept. 13, 1949)). An organization which is shown to
have circulated and distributed literature embodying Marxist-Leninist
teachings and whose aims and principles are identified therewith /4/
must necessarily be held to fall within the purview of the act of
October 16, 1918, as amended.
In Matter of D , 56068/819 (A.G., Mar. 18, 1948) and Matter of P ,
55977/103 (B.I.A., May 25, 1948), the fact that the Labor Progressive
Party of Canada distributed the Communist Manifesto was held sufficient
to justify the finding that it was an organization which distributed
literature advocating the violent overthrow of the Government of the
United States. In the cited cases, orders of exclusion, based on
Membership in the Labor Progressive Party, were sustained on 1918 act
grounds. The evidence of record in the instant case is stronger on the
distribution charge and goes further in that the Labor Progressive Party
is shown to be an organization which not only distributed proscribed
literature but advocated and taught the principles contained therein.
While it is recognized that the Labor Progressive Party has been
concerned primarily with the situation in Canada, its ties with other
Communist parties and its espousal of Marxist-Leninist principles
necessarily invested it with the duty and obligation of advocating the
violent overthrow of all anti-Communist or capitalist States, as part of
a world-wide revolutionary movement.
No discussion has yet been had of exhibit 5, Program of the Labor
Progressive Party. This document criticizes capitalist rule and urges
the establishment of socialism in Canada, but "categorically denounces
force and violence as a means of imposing any form of government or
economic system upon the Canadian people.' If this statement were to be
accepted on its face, it would be necessary to consider or explain its
apparent inconsistency with the doctrine of force and violence as
contained in exhibits 1 to 4, inclusive. However, when it is recalled
that the Labor Progressive Party emerged on the political scene only
after the Communist Party had been declared to be an illegal
organization, it is not surprising that the new party assumed a cloak of
legality. On this point, the witness offered the following explanation:
Q. How were you taught that this change was to be accomplished
with regard to the Labor Progressive Party?
A. The only way that it could be accomplished we were taught
was by violent overthrow of the government. That does not mean to
say in some of its public declarations that the Communist Party of
Canada and the Labor Progressive Party make * * * they intend to
do this by the ballot but that is not what they teach the party
members. As a matter of fact the Communist Party is particularly
vigilant in its own respect to make sure that its members and
adherents don't fall for that propaganda (p. 18).
The circumstances under which the Labor Progressive Party was
organized as a successor to the outlawed Communist Party and the fact
that it circulated and distributed literature advocating violent
revolution support the conclusion that its disavowal of force and
violence, as expressed in exhibit 5, was only for the purpose of
permitting it to operate on the surface as a legal political party.
Under section 23 of the Immigration Act of 1924 the applicant in an
exclusion proceeding has the burden of proof of establishing his
admissibility to the United States; the burden never shifts and is
always on the applicant; and where the evidence is of equal probative
weight, the party having the burden of proof cannot prevail. Matter of
H , A-9682749 (B.I.A., 1947)). In the instant case, it must be noted
that not only has the appellant failed to introduce any affirmative
evidence into the record but that the Government, on the other hand, has
presented uncontroverted affirmative evidence to show that the Labor
Progressive Party is a proscribed organization. It is manifest,
therefore, as required by law. She is properly excludable under the act
of October 16, 1918, as amended.
The testimony by the witness relating to the Labor Progressive Party
has been directed specifically toward the period beginning November 1943
(when the appellant joined the party) and ending November 1945 (when the
witness terminated his membership therein). Our findings with respect
to said organization must, therefore, be confined to the same period,
although it might be permissible to indulge in the presumption that an
organization continues to teach and advocate the same principles. (See
Kjar v. Doak, 61 F.(2d) 566, (C.C.A. 7, 1932).) However, it is pointed
out that an alien's inadmissibility into the United States under the act
of 1918, as amended, is not necessarily determined by present membership
in or affiliation with a proscribed organization but that evidence of
alien's membership at any time in the past in a proscribed organization
is sufficient under the statute to bar that person from the United
States.
"Affiliation,' as it appears in the first ground of exclusion, should
be deleted, since "membership' is specifically established. The second
ground of exclusion is sustained with reference to the circulation and
distribution of proscribed literature, the evidence of record being
insufficient to sustain so much of the charge as relates to the writing,
publishing, printing, and display of proscribed literature. It would be
incorrect to hold that the Labor Progressive Party is an organization
which teaches opposition to all organized government or which advocates
the violent overthrow of all forms of law, or that it distributes
literature of this content, since no evidence has been presented to show
that it favors disturbing the status quo in the Soviet Union.
Findings of Fact: Upon the basis of the evidence presented, it is
found:
(1) That the appellant is an alien, a native of New Zealand and
a citizen of Canada;
(2) That the appellant seeks admission to the United States as
a temporary visitor for pleasure for a period not to exceed 2
weeks;
(3) That the appellant has been a member of the Labor
Progressive Party of Canada from November 1943 to the present
time;
(4) That the Labor Progressive Party, from at least November
1943 to November 1945, was an organization that believed in,
avised, advocated, and taught the overthrow by force and violence
of the Government of the United States;
(5) That the Labor Progressive Party, from at least November
1943 to November 1945, was an organization that circulated and
distributed, and caused to be circulated and distributed, and had
in its possession for the purpose of circulation and distribution
printed matter advising, advocating, and teaching the overthrow by
force and violence of the Government of the United States.
Conclusions of Law: Upon the basis of the foregoing findings of
fact, it is concluded:
(1) That under section 1(c) of the act approved October 16,
1918, as amended, the appellant is inadmissible to the United
States, in that she has been a member of an organization, to wit:
The Labor Progressive Party of Canada, that believes in, advises,
advocates, and teaches the overthrow by force and violence of the
Government of the United States;
(2) That under section 1(e) of the act approved October 16,
1918, as amended, the appellant is inadmissible to the United
States, in that she has been a member of an organization, to wit:
The Labor Progressive Party of Canada, that circulates and
distributes, and that causes to circulate and distribute and that
has in its possession for the purpose of circulation and
distribution, printed matter advising, advocating, and teaching
the overthrow by force and violence of the Government of the
United States.
Other Factors: There are no factors in the case which would justify
any action other than affirming the order of exclusion.
Recommendation: It is recommended that the excluding decision of the
Board of Special Inquiry be affirmed.
So ordered.
(1) Exhibit 1, The Communist Manifesto, by Karl Marx and Friedrich
Engels; exhibit 2, State and Revolution, by V.I. Lenin; exhibit 3,
Left Wing Communism; An Infantile Disorder, by V.I. Lenin; exhibit 4,
Foundations of Leninism; by Joseph Stalin; exhibit 5, Program of the
Labor Progressive Party.
(2) The witness was also trade union director for ward 5, section
committee of the Communist Party in Toronto from 1937 until the party
went underground in 1940. He held no official position in the Labor
Progressive Party other than administering a night school operated by
that organization. In June 1945, he contested the Federal constituency
of West York in the name of the Labor Progressive Party.
(3) "It is common knowledge that the Communist Party, in whatever
country it exists is under the authority and control of the party heads
in the Soviet Union.' Eisler v. U.S., (C.A., D. of C. Apr. 18, 1949).
(4) Thus the doctrines of Marx, Engles, Lenin, and Stalin have
constituted the very basis upon which the Communist movement was founded
throughout the world, the very basis upon which it operates at the
present time * * * advocacy of overthrow of government by force and
violence is an organic and inescapable part of these doctrines.' House
Report No. 1920, Committee on Un-American Activities, House of
Representatives, 80th Cong., 2d sess.
Upon consideration of the entire record, it is ordered that the
appeal from the decision of the Commissioner be and the same is hereby
dismissed.
Crime involving moral turpitude -- Housebreaking and larceny (Larceny) -- Northern Ireland (England) -- Juvenile delinquency.
An alien over 18 years of age when he committed the offenses herein, (and, therefore, not a "juvenile' within the purview of the appropriate laws of England), who, upon a plea of guilty, was convicted in a Court of General Quarter Sessions of the Peace at Belfast, Northern Ireland, in 1947, on an indictment charging offenses for which he was liable to be sentenced to penal servitude or imprisonment, is subject to exclusion on the grounds stated below under the provisions of section 3 of the Immigration Act of 1917.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917 -- Admits crime prior to entry, to wit: Housebreaking
and larceny. Act of 1917 -- Convicted of crimes prior to entry, to
wit: Housebreaking and larceny.
Upon consideration of the entire record, the findings of fact and
conclusions of law stated by the Board of Special Inquiry at the close
of the hearing are hereby adopted. No exceptions have been submitted.
Discussion: The record relates to a 21-year-old unmarried male, a
native of Northern Ireland and a citizen of Great Britain. On July 8,
1949, he applied for admission to the United States. At the time, he
was in possession of a British passport valid until April 29, 1954, and
an immigration visa issued by the American consulate at Belfast,
Northern Ireland, on June 24, 1949. He was excluded by the Board of
Special Inquiry on the grounds stated in the caption and from the
excluding decision he has appealed.
The appellant testified that he was convicted on January 28, 1947, in
Northern Ireland of the crime of housebreaking and larceny. He stated
that he was sentenced to 2 years in the Borstal Reformatory, which he
stated is a reformatory for older boys, between the ages of 16 and 20.
A record of conviction was introduced into evidence which the
appellant identified as relating to him. This record indicates that the
appellant was convicted on his plea of guilty in a General Quarter
Sessions Court of the Peace on January 28, 1947, on two charges. The
first charge reads as follows:
That the said J J G with others between the first day of
September 1946 and the second day of October 1946, being in the
dwelling house of the late T C , stole therein, one gold brooch of
the value of 10 pounds and three cases of cutlery of the value of
22 pounds to the total value of 32 pounds, the property of the
Representative of the late T C .
The second charge alleges that the appellant:
Between the 30th day of November 1946 and 7th day of December
1946, at Bangor in the county of Down, broke and entered the
dwelling house of one M McC , and stole therein, one lady's gold
wristlet watch, three lady's rings, a gold cross and chain, a
string of pearls, a ring box and silver match box, of the total
value of 105 pounds: 1:0 the property of said M McC .
For the foregoing offenses, the appellant was indicted, and as
previously indicated, convicted and sentenced to be kept under penal
discipline in a Borstal institution for 2 years.
It is well established that the crime of larceny is a crime involving
moral turpitude and that the crime of breaking and entering to commit a
crime involving moral turpitude is also a crime involving moral
turpitude. The only question presented in the instant proceedings is
whether the appellant was, in fact, convicted of the afore-mentioned
crimes or was treated as a juvenile delinquent. The question of
juvenile delinquency is treated in the Children's Act of 1908, which
provides for a special treatment of the young persons charged with
criminal offenses. Under section 131, a "Young person' is defined as a
person "who is 14 years of age or upward and under the age of 16.'
Section 111 of the same act creates juvenile courts and provides a
summary jurisdiction with special provisions for the conduct of such
persons.
From the record, it is clear that the appellant was not treated as a
juvenile delinquent or young person. At the time of the trial and at
the time the criminal acts were committed the appellant was over the age
of 18 years. He was tried in a Court of General Jurisdiction for
Criminal Offenses at which adult offenders are tried. He has admitted
that there was no distinction accorded to him at his trial because of
his age. The appellant was sentenced to a reformatory but such sentence
provided that he be kept under penal discipline for 2 years. Under the
Children's Act, a person under the age of 21 may be indicted and
convicted the same as any other criminal but may be sentenced only
according to the said act (secs. 94 to 113). Therefore, it would appear
that the appellant being over the age of 16 was treated as an ordinary
criminal and convicted as such and that his sentence was the only
sentence permitted by law. It is concluded that he has been convicted
of and admits crimes involving moral turpitude and was properly excluded
by the Board of Special Inquiry.
Recommendation: It is recommended that the excluding decision of the
Board of Special Inquiry be affirmed.
So ordered.
Discussion: This is an appeal from an order entered by the Acting
Assistant Commissioner on November 4, 1949, affirming the appellant's
exclusion on the above-stated grounds by a Board of Special Inquiry held
at Boston, Mass., during October 1949.
The appellant, a native of Northern Ireland and a citizen of Great
Britain, 21 years of age, male, unmarried, applied for admission into
the United States at Boston, Mass., on July 8, 1949. He presented a
British passport valid to April 29, 1954, and an immigration visa issued
by the American consul at Belfast, Northern Ireland, on June 24, 1949.
The evidence affirmatively establishes that the appellant was convicted
on a plea of guilty by a Court of General Quarter Sessions of the Peace
at Belfast, Northern Ireland, on January 28, 1947, of the crime of
housebreaking and larceny. He testified that he was sentenced to 2
years in a Borstal institution. A record of his conviction was
introduced into evidence.
There is a showing of record that the consul was aware of the
appellant's conviction at the time he applied for an immigration visa
but decided to issue the visa when it was shown that the offense had
been committed while the appellant was a minor; that the appellant had
been sent to a reformatory school instead of a penal institution and
that he had been released on good behavior before his sentence was
concluded. The consul also took into consideration the fact that the
appellant had conducted himself properly since his release and had
acquired a good reputation. Under these circumstances our sympathies
are with the appellant, but a visa issued by a consular officer abroad
does not guarantee admission into the United States; it is simply a
prerequisite which must be in the possession of an alien when he
presents himself at a port of entry. The appellant's admissibility must
be determined in accordance with the requirements set forth by the
Congress in the immigration laws of the United States.
Counsel during oral argument before this Board urged that under the
Prevention of Crime Act of 1908 (8 Edw. VII, ch. 59) the appellant as a
matter of law may have been treated as a juvenile delinquent and,
therefore, not convicted of the aforementioned crime. We have carefully
considered the question of juvenile delinquency in Northern Ireland and
find no legal foundation for the position counsel has taken. A careful
review of the legislation enacted by the parliament of Northern Ireland,
which was created when the six northern counties refused their
independence at the time of the creation of the Irish Free State,
reveals that relatively few changes have been made since the creation of
that body in the basic laws relating to juveniles. /1/
The principal act consolidating the statutory law relating to
children and young persons in Northern Ireland is still the Children's
Act of 1908. /2/ (8 Edw. VII, ch. 67, pt. 5). The basic law in England
and Wales was considerably amended by the Children's and Young Person's
Acts of 1932 and 1933 but by express terms set forth therein they do not
apply to Northern Ireland. Under the Summary Jurisdiction of Children
(Ireland) Act of 1884 and the Children's Act of 1908 (supra), the
juvenile court hears all charges except homicide against children /3/
and young persons unless a person over 16 years of age is jointly
charged. If during the proceedings in a juvenile court it appears that
the person concerned is over 16 years of age, the court may nevertheless
hear and determine the case if it thinks and adjournment undesirable.
Similarily, if during proceedings in an ordinary court of summary
jurisdiction it appears that the person concerned is under 16 years of
age, the court is not prevented from hearing and determing the case (act
of 1908, sec. 111(2)).
The statute referred to by counsel (8 Edw. VII, ch. 59, pt. I, sec.
1) reads in part as follows:
Where a person is convicted on indictment of an offense for
which he is liable to be sentenced to penal servitude or
imprisonment, and it appears to the court --
(a) that the person is not less than 16 nor more than 21 years
of age; and
(b) that by reason of his criminal habits or tendencies, or
association with persons of bad character, it is expedient that he
should be subject to detention for such term and under such
instruction and discipline as appears most conducive to his
reformation and the repression of crime. it shall be lawful for
the court, in lieu of passing a sentence of penal servitude or
imprisonment, to pass a sentence of detention under penal
discipline in a Borstal institution for a term of not less than 2
(years) nor more than 3 years.
Section 18 of part 3 of this act extends it to Northern Ireland with
certain modifications not pertinent here.
It is apparent from the foregoing that the Prevention of Crime Act
(supra) deals with youthful offenders who have been convicted on
indictment and simply provides machinery for their committal to a
Borstal institution by a court of quarter sessions and assizes. A
Borstal institution /4/ is a place in which young offenders, while
detained, may be given such industrial training and other instruction
and be subjected to such disciplinary and moral influences as will
conduct to their reformation and the prevention of crime (8 Edw. VII,
ch. 59, pt. 1, sec. 4).
Inasmuch as there is an affirmative showing that the appellant was
more than 18 years of age at the time of the commission of the crime in
question and, therefore, not a juvenile within the purview of the
appropriate laws of England, and following a plea of guilty was
convicted in a Court of General Quarter Sessions of the Peace on an
indictment charging offenses for which he was liable to be sentenced to
penal servitude or imprisonment, we will affirm the action taken by the
Assistant Commissioner and dismiss the appeal.
As stated above, our sympathies are with the appellant but we have no
other alternative since under the immigration laws the conviction of a
crime involving moral turpitude controls and not the type of institution
wherein the alien was incarcerated. We might also add that while the
conviction requires the appellant's exclusion under the Immigration Act
of 1917, as amended, since this offense was committed when the alien was
18 years of age, and, therefore, not a juvenile under English law, it
does not necessarily reflect on his moral character today. Indeed,
apart from the conviction, the record is entirely favorable to the
appellant, and the American consul at Belfast, Ireland, so found when
the visa was issued.
Order: It is directed that the appeal be and the same is hereby
dismissed.
(1) Northern Ireland Public General Acts, the fifth and sixth
sessions of Parliament of Northern Ireland, repealed secs. 35 and 103 of
the Children's Act of 1908 by the enactment of the Criminal Justice Act
of 1945 (8, 9, 10, Geo. VI).
(2) Section 133 extends the act to Northern Ireland.
(3) Section 131 defines a child as a person under 14 years of age.
It defines a young person as one 14 years of age and upwards but under
16 years of age.
(4) In the early years of the twentieth century, a scheme of
industrial training and education for young prisoners was started as an
experiment at Borstal in Kent, England, and in 1908 the establishment of
permanent institutions for this purpose was sanctioned by the passing of
the Prevention of Crime Act.
Seventh proviso relief -- Section 3 of the act of 1917 -- Discretion -- Factors deemed material in criminal cases.
1. An alien may be granted discretionary relief under the seventh proviso to section 3 of the act of 1917 where criminal grounds are involved, if his reformation for the last 19 years is established; the criminal conduct measured by the sentences imposed could not have been very serious; he has a citizen wife whom he is supporting; he has resided continuously in the United States since he was a 2-year-old baby; and deportation in his case would be banishment in fact.
2. Whether discretionary relief under the seventh proviso to section 3 of the act of 1917 is to be granted depends upon the facts of each case, and the Attorney General's directive of March 18, 1946 (as a board statement of policy as to such relief) leaves for determination in each instance whether the case is exceptionally meritorious.
3. In deciding in the past whether such relief should be granted in criminal cases, certain elements have been considered material in reaching a decision, such as (a) whether there has been a genuine reformation; (b) the family ties of the aliens in the United States; (c) the seriousness of the crime or crimes to be waived under the seventh proviso; and (d) the period of residence of the alien in the United States.
CHARGES:
Warrant: Act of 1917 -- Convicted of crime prior to entry, to wit: Larceny from a store in the daytime.
Lodged: Act of 1917 -- Convicted of crime prior to entry, to wit:
Larceny by conversion, contributing to the delinquency of a minor, and
larceny of property.
Discussion: This case is now before us on motion of the Commissioner
asking that we reconsider our order of August 1, 1949, where we invoked
the provisions of the seventh proviso and terminated proceedings, and
instead, the motion asks, that we order the alien's deportation. If we
do not agree, we are asked in the alternative to certify the case to the
Attorney General for his review of our action.
The case is concerned with an Italian alien born January 8, 1903, who
was brought to this country in 1905 as a child of 2 years and who has
lived here continuously since then. His longest absence from the United
States was for a matter of 3 days in Canada in 1923.
The present order of deportation is based on the following
convictions:
On November 20, 1924, for the crime of larceny by conversion,
the sum involved being $22 -- Sentence was suspended.
On August 7, 1925, for the crime of contributing to the
delinquency of a minor (sexual intercourse with a 17-year-old
girl). For this offense, the alien was fined $50 and cost of $10,
or sentenced to serve 30 days in jail.
On December 20, 1930, for the crime of larceny of property
valued at $49, for which the alien was sentenced to 30 days in
jail.
Originally this proceeding was also based on a conviction on November
7, 1927, for the crime of larceny from a store in the daytime. For this
offense he was sentenced to imprisonment for a term of from 1 to 15
years. Clearly, of all the convictions, this was the most serious. On
November 19, 1947, the 1927 conviction was vacated and set aside and a
new trial granted. The prosecuting attorney moved dismissal of the
action. The court thereupon dismissed the action. Hence, the 1927
conviction has been set aside and is no longer a basis for the present
deportation proceeding.
Since sentences imposed on the three crimes enumerated above do not
amount to 1 year or more, the respondent became subject to deportation
only because subsequent to the convictions he departed from the United
States for an afternoon picnic in Bob-Lo Island in Canada, reentering
the United States the same afternoon, August 16, 1941. This made
applicable to his case that part of the immigration statute which
provides for the deportation of any alien who has been convicted of or
admits having committed a felony or other crime or misdemeanor involving
moral turpitude prior to entering the United States. The seventh
proviso of section 3 of the Immigration Act of 1917 grants to the
Attorney General authority to permit the alien to remain in the United
States notwithstanding this ground of deportation. The seventh proviso
reads as follows:
That aliens returning after a temporary absence to an
unrelinquished 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.
The fact that this is a proceeding to deport the alien from the
United States rather than an application on his part for admission to
the United States, does not prevent the use of the seventh proviso (In
the Matter of L , 1, I. & N. Dec. 1, decided by the Attorney General
August 20, 1940).
The issue is whether, as a matter of discretion, the seventh proviso
should be invoked in light of the facts as they exist in this case. As
we have pointed out, the alien has lived here since a child of 2. The
only country he knows is the United States. Realistically speaking, he
is no more an alien than any native-born citizen of the United States,
and in fact probably knows far less about the Italy where he was born
than many Americans who have been able to travel abroad. Clearly, he is
a product of this country. Judging by the sentences imposed, the crimes
were not regarded as too serious by the judges who imposed sentences.
The prior decision of the Commissioner listed a Federal Bureau of
Investigation report of the alien's criminal record. This included all
arrests even though no conviction followed. It is, however, a fact that
there have been no convictions since the one in 1930. The last two
arrests were in 1937 and 1938 and those only for investigation which
resulted in the alien's release.
At the recent hearing directed by this Board an independent character
investigation was conducted. The Immigrant Inspector who made the
report finds from talking with disinterested persons, that the alien has
been a person of good moral character and is loyal to the United States.
The alien has a good employment record, and since his release from jail
has rehabilitated himself and is now a worthy member of his community.
He is living with his wife, a native-born citizen, and supporting her.
There are no children of the marriage.
The only reason given in the Commissioner's motion in opposition to
our action in exercising the seventh proviso is the allegation that our
order is contrary to a directive of the Attorney General dated March 18,
1946, which reads as follows:
The seventh proviso should be very sparingly exercised so as to
include within its purview only exceptionally meritorious cases.
Except in unusual circumstances this proviso shall be limited to
cases where the evidence clearly establishes that the alien has
had a long period of residence in this country, has close entirely
dependent family ties here and an unblemished record for at least
seven consecutive years.
Many cases were considered by former Attorney General Clark under his
directive of March 18, 1946, and our action is clearly in accord with
the spirit of his decisions. As an example of instances where he
approved the action of this Board in exercising the seventh proviso in
criminal cases, the following are cited:
Matter of P , File 5327894. The alien involved was convicted
of grand larceny in September 1918, and fined $25; highway
robbery in 1920 and received a suspended sentence; assault with
intent to commit rape in 1921 and sentenced to New Jersey
Reformatory for an indeterminate term; assault and carnal abuse
of a child under 16 years of age in 1923, and sentenced to
imprisonment for 4 years. He had a citizen wife and two minor
citizen children, and had lived in the United States from about
1904, or since he was an infant. His conduct since 1923 was good.
On January 7, 1947 the Attorney General approved the exercise of
the seventh proviso. This case very closely approximates the
facts in the proceeding we are now considering.
Matter of R , File 1093853. The alien was convicted of the
crime of breaking and entering and theft in Germany in 1928. On
October 29, 1946, the Attorney General approved the exercise of
the seventh proviso. The alien had lived here only since 1931, or
since he was about 27 years of age, as contrasted with the present
case where the alien's entire conscious life has been spent in
this country.
Matter of K , File 4275678. The Attorney General on September
6, 1946, approved the action of this Board in using the seventh
proviso in reference to a very serious offense. The alien there
was convicted of the crime of breaking and entering in the
nighttime, and was sentenced to imprisonment for a term of 2 1/2
to 15 years in the Michigan Reformatory. He had a wife and three
minor children in the United States and had lived here since 1913,
or since he was 11 years of age.
Matter of C , File 5046199. The Attorney General on July 5,
1946, approved the action of this Board in using the seventh
proviso in regard to the following criminal record: Conviction on
September 6, 1919, in Canada for the crime of breaking and
entering and theft, for which the alien received a sentence of 3
months to 1 year in the reformatory; in 1929 for the crime of
simple larceny, for which the alien was placed on probation for 6
months. This man had a citizen wife and one minor citizen son and
one Canadian born son, and had Army service in the late war. He
had lived here since 1924 or since he was 25 years of age.
It is clear from these decisions that our action is in accord with
past precedent and we fail to understand why the Immigration and
Naturalization Service feels we should reconsider our action. The
Commissioner's motion merely cites the Attorney General's directive of
March 18, 1946, and does not elaborate on its position.
We realize, of course, the difficulty, if not impossibility, of
defining any standard in discretionary matters of this character which
may be applied in a stereotyped manner. Even if it could be done, we
feel very definitely it would be wrong so to do. Each case must be
considered on its own facts. This is basic. The Attorney General's
directive of March 18, 1946, was not more than a broad^and indeed a very
broad^statement of policy. It left for determination in each instance
whether the case was "exceptionally meritorious.' In our past
determinations, as appropriate elements in arriving at a decision on
this matter, we have considered as material in criminal cases (1)
whether there has been a genuine reformation; (2) the family ties of
the alien in the United States; (3) the seriousness of the crime or
crimes to be waived under the seventh proviso; and (4) the period of
residence of the alien in the United States.
In the case now before us, reformation since 1930 is clearly
established. The alien has a citizen wife whom he is supporting, and
the criminal conduct measured by the sentences imposed could not have
been very serious. The most appealing single factor in the case is the
continuous residence of this alien in the United States since he was a
2-year-old baby. Deportation in his case is in fact banishment. We see
no reason for changing our decision.
To the end that there may be no misunderstanding on the part of the
Immigration and Naturalization Service, we will certify the matter to
the Attorney General for review of our decision.
Order: It is ordered that the motion of the Commissioner be denied,
and the action of this Board in canceling proceedings under the seventh
proviso of section 3 be affirmed.
In accordance with the request of the Assistant Commissioner, the
Board certifies its decision and order to the Attorney General for
review pursuant to title 8, Code of Federal Regulations, section 90.12.
The decision and order of the Board of Immigration Appeals dated
October 20, 1949, are hereby approved.
Editor's note. -- See Matter of G.Y.G., (B.I.A. 12/22/50,
Acting Atty. Gen. 1/17/51), Interim Decision No. 230 for
expression of policy in seventh proviso cases by the Attorney
General on October 16, 1950.
Citizenship -- Derived by child through father's naturalization (1924) -- Acquisition of foreign nationality through father's naturalization (Italy, 1932) -- Loss of United States citizenship status under section 401(a) of the Nationality Act of 1940, having resided in Italy from 1930 (age 13) to September 1946 (age 29).
1. A person born in 1917 in Italy and admitted to the United States for permanent residence in 1920, became a citizen through her father's (native of Italy) naturalization here in 1924 while she was a minor and a legal resident of the United States (sec. 5, act of March 2, 1907).
2. The father had lost his Italian nationality upon his naturalization here in 1924 (art. VIII, Italian Nationality Law, June 13, 1912), but reacquired Italian nationality 2 years after he resumed residence in Italy (September 1932) (art. IX (3), Italian Nationality Law, June 13, 1912), and is deemed to have expatriated himself by foreign naturalization (September 1932) (sec. 2, act of March 2, 1907), by manifesting his voluntary acceptance of Italian nationality in voluntarily joining the Italian National Fascist Party, voting in a political election in 1946, and obtaining an Italian passport for travel in 1939.
3. The subject who took up residence in Italy with her parents in 1930, and who resided in Italy when the father reacquired Italian citizenship in 1932 under (art. IX, (supra), also reacquired Italian nationality in 1932 (15 years old) (art. XII, Italian Nationality Law, June 13, 1912).
4. Thereafter and up to January 13, 1941 (the effective date of the
Nationality Act of 1940), the subject having done nothing to expatriate
herself, remained a citizen of the United States, as well as a citizen
of Italy, and on January 13, 1941, was a dual national subject to the
expatriative provisions of section 401(a) of the Nationality Act of
1940, so that (being over 23 on January 13, 1943) she expatriated
herself thereunder by failing to return to the United States before
January 13, 1943.
Discussion: The above-named applicant claims that she derived United
States citizenship on June 18, 1924, through the naturalization on that
date of her father, A P , by the Common Pleas Court of Hudson County, at
Jersey City, N.J., applicant being then a minor and having resided
permanently in the United States since December 22, 1920.
The question presented is whether subject who was a national of the
United States by naturalization, lost her nationality in accordance with
the provisions of section 401(a) of the Nationality Act of 1940.
The record discloses that subject's father A P , who was born in
Italy on February 24, 1887, was naturalized as a United States citizen
by the Common Pleas Court of Hudson County, at Jersey City, N.J., on
June 18, 1924. The subject was born at Caprino Veronese, Province of
Verona, Italy, on March 7, 1917. She lawfully entered the United States
for permanent residence at New York, N.Y., on December 22, 1920. She
resided continuously in the United States until September 6, 1930, when
she was taken by her parents to Italy, and she resided in Italy until
her return to the United States, as a United States citizen, on
September 19, 1946. Her father did not return to the United States and
is still residing in Italy.
Subject has testified that she never committed any overt act of
expatriation; that to her knowledge she knew of no act of expatriation
being committed by her father; and that in applying for a renewal of
her United States passport, with which she returned to the United States
on September 18, 1946, she was advised by the State Department that her
father had expatriated himself and that she had lost her United States
citizenship and that said passport which she used on her return to the
United States, was issued erroneously to her by said Department in
Milan, Italy. She further testified that in 1932 she and her father
went to the United States consul at Venice, Italy, to renew their United
States passport and when the consul asked them why they wanted to renew
their passports, they stated, in order to be able to return to the
United States when they should so desire; that her father was advised
not to worry but to return with his tickets when ready to return to the
United States; that she was then 15 years of age and in her father's
custody; that when she reached her majority she could not make up her
mind as to what she was going to do as her family was in Italy and since
American residence had been given up, she did not know what she would do
in America, not knowing what she would find here. She further stated
that in 1939, she tried to make arrangements to visit the United States
for the World's Fair, expecting then to decide about permanent residence
in the United States, but her plans fell through because of the
cancellation of all tours due to the impending hostilities; that at the
end of the war she went to work for the Allied Military Government and
subsequently for the British in 1946, and when that work ceased, she
went to the United States consul and arranged for her passage on a
United States passport, returning to the United States on September 18,
1946.
The State Department on February 2, 1949, informed this Service that
it had erroneously issued the United States passport on which the
subject returned to the United States in September 1946, and forwarded
warded to this Service a certificate of the loss of the nationality of
the United States by the subject, which certificate stated in part that
subject had expatriated herself under the provisions of section 401(a)
of chapter IV of the Nationality Act of 1940 by being naturalized in
Italy as a minor through the reacquisition of Italian nationality on the
part of her father, who was naturalized as an American citizen in 1924,
returned to Italy in 1930, and has lived there ever since; that subject
has resided in Italy since September 1930 and did not establish
permanent residence in the United States on or before January 13, 1943;
and that the evidence of such action consists of the following:
A sworn statement made by the subject at the consulate general,
Milan, Italy, on April 18, 1946, in connection with an application
for registration as an American citizen, in which she stated that
she returned to Italty in September 1930 with her father and had
resided in Italy ever since.
The State Department further stated that its file in the case of
subject's father shows that he has been residing in Italy since 1930 and
has demonstrated an acceptance of Italian nationality which he
reacquired under Italian law, and that the subject must be held to have
lost nationality of the United States as set forth in the enclosed
certificate. It further stated that the consulate general at Milan was
requested in an instruction dated October 18, 1948, to submit a
certificate of expatriation in the case of A P , who is the subject's
father.
The State Department on August 1, 1949, informed this Service that
subject's father executed an application for documentation as an
American citizen at the American consulate general at Milan on June 11,
1946, at which time he stated that he was born in Italy on February 24,
1887, that he immigrated to the United States in 1913 where he was
naturalized as a citizen of the United States before the Common Pleas
Court of Hudson County at Jersey City, N.J., on June 18, 1924, that he
had resided in Italy from 1926 to 1927 and from 1930 to the date of his
application, that in 1939 he obtained an Italian passport for travel to
Switzerland, that he was a member of the Fascist Party, and that he
voted in a political election held in Italy on June 2, 1946. It also
stated that the subject's father reacquired Italian nationality under
the provisions of article IX(3) of the Italian Nationality Law of June
13, 1912, 2 years after he resumed his residence in Italy and it was the
Department's opinion that by his actions he manifested a voluntary
acceptance of the status of an Italian national and must, therefore, be
held to have been naturalized in Italy and to have lost nationality of
the United States through the operation of section 2 of the Act of March
2, 1907.
When subject's father was naturalized as a United States citizen on
June 18, 1924, he lost his Italian nationality pursuant to article VIII
of the Italian Nationality Law of June 13, 1912, which provides that one
loses citizenship when he of his own will acquires a foreign
citizenship, or establishes or has established his residence abroad.
Under article IX of said Italian nationality law, one who has lost
citizenship pursuant to article VIII may reacquire it after 2 years'
residence in the Kingdom, if the loss of citizenship has been due to the
acquisition of foreign citizenship. Therefore, after the father's
return to Italy and residence therein the father reacquired Italian
nationality pursuant to the provision of article IX(3) of the Italian
nationality law of June 13, 1912.
In accordance with Italian law the father regained Italian
nationality in September 1932, after residing in Italy for 2 years
subsequent to his arrival in Italy in September 1930.
It is the view of this Service and of the State Department that the
provisions of article IX(3) of the Italian law, supra, constitute merely
a permissive form of naturalization. Unless there is some affirmative
act on the part of the individual which would manifest a voluntary
acceptance of the Italian nationality other than his mere residence in
that country, for 2 years, there is no expatriation (O.I. 801.3 III;
Hackworth, Digest of International Law, Volume 3, pages 212, 213). /*/
The record establishes that the father in 1939 obtained an Italian
passport for travel to Switzerland, that he was a member of the Fascist
Party, and that he voted in a political election held in Italy on June
2, 1946. It is the view of the State Department and this Service that
joining the Italian National Fascist Party is an act manifesting
acceptance of Italian nationality (Hackworth, Digest of International
Law, vol. 3, p. 213; 0900-25085, R R , Jan. 19, 1949; C-6267838, H C S
). The father, therefore, by voluntarily becoming a member of the
Fascist Party, in addition to the obtaining of an Italian passport for
travel and his voting in a political election in Italy on June 2, 1946,
manifested a voluntary acceptance of Italian nationality and thereby
lost his United States nationality pursuant to section 2 of the act of
March 2, 1907, by having been naturalized as an Italian citizen in
September 1932.
Article XII of the Italian Nationality Law of June 13, 1912, provides
that minor children of the person reacquiring Italian citizenship
pursuant to the provisions of article IX(3) became Italian citizens
provided they were residing in Italy. In view thereof, subject acquired
Italian nationality in September 1932 at the same time that her father
reacquired Italian nationality. Subject was, therefore, a dual national
of the United States and Italy in September 1932.
In the case of Perkins v. Elg, U.S. 325, the Supreme Court held that
a child did not lose United States nationality through the acquisition
of a foreign nationality during minority. The Court stated, however,
that such a child, upon attainment of majority, could elect the foreign
nationality and thus lose United States nationality. An election does
not necessarily require a prescribed procedure but it is possible of
determination from the circumstances of a person's conduct and behavior.
It must, however, indicate a definitive choice of citizenship. In the
instant case it does not appear that subject made any election of
Italian nationality. After reaching her majority she continued living
in Italy and did no actual work of any kind during the war. There was
nothing in her conduct or behavior to indicate a choice between Italian
or United States nationality.
However, section 401(a) of the Nationality Act of 1940 provides in
part that a person who is a national of the United States, whether by
birth or naturalization, shall lose his nationality^
Provided further, That a person who has acquired foreign
nationality through the naturalization of his parent or parents,
and who at the same time is a citizen of the United States, shall,
if abroad and he has not heretofore expatriated himself as an
American citizen by his own voluntary act, be permitted within 2
years from the effective date of this act to return to the United
States and take up permanent residence therein, and it shall be
thereafter deemed that he has elected to be an American citizen.
Failure on the part of such person to so return and take up
permanent residence in the United States during such period shall
be deemed to be a determination on the part of such person to
discontinue his status as an American citizen, and such person
shall be forever estopped by such failure from thereafter claiming
such American citizenship (54 Stat. 1168 1169; 8 U.S.C. 801).
Subject was a United States citizen by derivation on June 18, 1924,
through the naturalization on that date of her father, and acquired
foreign nationality, namely, Italian, through the naturalization of her
father in Italy in September 1932. Since she had made no election as to
Italian or United States nationality prior to the effective date of the
Nationality Act of 1940, she had at that time Italian nationality as
well as United States nationality.
It is the view of this Service that the portion of section 401(a)
cited is not applicable, unless the parent was expatriated as a United
States citizen by his voluntary naturalization (In re L D R ,
2270-P-562709, Oct. 19, 1948). /**/ The evidence of record establishes
that the father's actions constituted a voluntary acceptance of Italian
nationality which he reacquired in September 1932 and amounted to a
voluntary naturalization in Italy as of that date, so as to result in
expatriation, pursuant to section 2 of the act of March 2, 1907. Since
the subject acquired foreign nationality through the voluntary
naturalization of her father in Italy, and was also a United States
citizen at the same time, the provisions of section 401(a) are
applicable to her case. The subject, having failed to return to the
United States within 2 years after the effective date of the Nationality
Act, lost her United States nationality pursuant to the provisions of
section 401(a) of the Nationality Act of 1940. A similar conclusion was
arrived at by this Service in the case of A N , A-6730015, June 10,
1949.
It is ordered, That from the evidence presented, the subject be
deemed to have lost her United States nationality on January 13, 1943,
under the provisions of section 401(a) of the Nationality Act of 1940.
It is further ordered, That the application for a certificate of
citizenship be denied.
(*) See editor's note at bottom of p. 765.
(**) Editor's note. -- Similar determination was made by the Central
Office, In the Matter of S (unreported, 56249/290, June 3, 1948), and by
the State Department in its letter of May 14, 1948 in the same case.
The State Department repeated the statement it had made in its letter of
March 2, 1948, in the case of G (56233/814), expressing the following:
"Upon further consideration of the question, the Department believes
that a minor child who has been naturalized as an Italian national
through the reacquisition of Italian nationality by his parent without
express application having been made therefor should not, in the absence
of acceptance of naturalization by the parent, be held expatriated
unless the child himself, after attaining majority, (1) indicated
acceptance of the naturalization and (2) failed to comply with
requirements of the law concerning return to the United States for
residence.'
Fine -- Vessel bringing alien (immigrant) without proper visa -- Section 16, Immigration Act of 1924 -- Where alien a seaman.
Where the prospective immigrant is and has been a bona fide seaman
for many years, who signed on here as a seaman for trip to foreign ports
and return, and the facts show the alien was brought here as an incident
to employment on the instrument of transportation (vessel) (rather than
for the sake of transportation, even though working as a seaman), a fine
under section 16 of the Immigration Act of 1924 will not be imposed on
the carrier.
Discussion: We have this case on appeal from an order by the
Assistant Commissiner, dated July 8, 1949, imposing penalty against the
Sword Line Inc., agents of the vessel Fred Herrling in the amount of
$1,000. The proceeding arises under section 16 of the Immigration Act
of 1924 (8 U.S.C. 216), charging that the vessel brought to the United
States on May 16, 1948, "an immigrant not in possession of an unexpired
immigration visa.'
In protest the carrier states that prior to the alleged "bringing'
the vessel sailed from Norfolk, Va., for England, having on board as a
member of its crew the alien in question, viz, S F . While in England
the alien obtained the issuance to him of an immigration visa, dated
September 5, 1947, and valid to January 5, 1948. The vessel was then
diverted to other ports of call and returned to New York on May 16,
1948, when the alien presented the visa and applied for admission for
permanent residence, long after the visa had expired.
Section 16 of the 1924 Act declares that it shall be unlawful for any
person "to bring to the United States by water from any place outside
thereof * * * any immigrant who does not have an unexpired immigration
visa' and prescribes a penalty in the amount of $1,000 for a violation
thereof, unless it appears to the satisfaction of the Attorney General
that the carrier "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 immigrant.' As the captain and chief steward helped
the alien to obtain the visa the exception stated in the statute is
clearly inapplicable.
The case is similar to that of Pan American Petroleum & Transport Co.
v. United States, 28 F.(2d) 386, D.C., E.D. La. 1928, which involved a
proceeding under the same provision of law in the following
circumstances. One S , an alien landed in the United States as a seaman
and deserted. Within a few days he shipped as a marine engineer on the
dredge Canton for service in the Danish West Indies under a contract
which bound his employer to return him to the port of departure. When
the work was complete, the vessel on which he had departed was
unseaworthy and he was returned on the I. C. White. On arrival the
alien stated that it was his purpose to remain in the United States if
he could do so. The court said:
* * * it seems to be admitted that he departed promptly upon
the Conton on a foreign voyage, and in my opinion his status as a
seaman was retained throughout so that, when he arrived upon the
I. C. White, the rights of the parties were governed by these same
sections (3, 19 and 20); that is, he was a bona fide seaman and
entitled to such privileges as were accorded by section 19 of the
act * * * and the I. C. White's only duty was to see that neither
he nor it violated the provisions of section 20 * * * I do not
think, under the conditions mentioned, insofar as the plaintiff or
its vessel are concerned, that the case could be treated as that
of an immigrant within the meaning of the law.
The similarity of the instant case to the one cited is emphasized by
the report of the field officer who states as to F :
The testimony shows that the subject was a bona fide crew
member for many years * * *
Note should also be made of Taylor v. United States, 207 U.S. 120,
1907, which involved the conviction of a carrier under the Immigration
Act of March 3, 1903, charging willful permission of an alien to land at
a time or place other than designated by the immigration officers. The
alien concerned was a member of the crew. Mr. Justice Holmes, speaking
for the court, said:
The reasoning is not long. The phrase which qualifies the
whole section is, "bringing an alien to the United States.' It is
only "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.
On the authority of the cases cited, we conclude that violation of
section 16 has not occurred.
Order: It is ordered that the appeal from the order of the Assistant
Commissioner be sustained and that the proceeding be terminated.
BEFORE THE CENTRAL OFFICE
(November 3, 1949)
Discussion: On May 16, 1948, the S.S. Fred Herrling arrived at the
port of New York from foreign. One, S F , an alien member of the crew,
applied for admission for permanent residence. He presented an
immigration visa which had expired approximately 4 months prior to his
embarkation at Avonmouth, England. He was held for a Board of Special
Inquiry and excluded under the provisions of section 13(a)(1) of the
Immigration Act of 1924, as an immigrant not in possession of an
unexpired immigration visa. The Central Office affirmed the excluding
order of the Board of Special Inquiry and the Board of Immigration
Appeals dismissed his appeal. The captain and chief steward of the
vessel assisted the alien in applying for his visa and saw it after it
was obtained. They knew he intended to apply for admission for
permanent residence. Even a superficial examination of the visa would
have disclosed that it had expired prior to the alien's embarkation.
Section 16 of the Immigration Act of 1924 makes it unlawful "for any
person, including any transportation company, or owner, master, agent,
charter, or consignee of any vessel, to bring to the United States by
water from any place outside thereof (other than foreign contiguous
territory) (1) Any immigrant who does not have an unexpired immigration
visa' and provides for a penalty of $1,000 for each immigrant so brought
unless it appears to the satisfaction of the Attorney General that the
responsible parties "prior to the departure of the vessel from the last
port outside of 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 * * *'
Since, both the master and chief steward, assisted the alien in
obtaining his visa, the exception stated in the statute was clearly
inapplicable, and accordingly on July 8, 1949, this Service imposed a
fine of $1,000 on the Sword Line, Inc., agents for the S.S. Fred
Herrling.
The responsible party appealed from the order of this Service and on
October 7, 1949, the Board of Immigration Appeals sustained the appeal
and terminated the proceedings. The Board's action was predicated on
the decisions in Pan American Petroleum and Transportation Company v.
United States, 28 F.(2d) 386 (D.C.E.D. La.) and Taylor v. United States,
207 U.S. 120 (1907). he case of the Pan American Petroleum and
Transport Company United States, also involved a proceeding under
section 16 of the immigration Act of 1924. In that case an alien had
landed in the United States as a seaman and deserted. Within a few days
he shipped as a marine engineer for service in the West Indies under a
contract which bound his employer to return him to the port of
departure. Since the vessel upon which he had departed was found
unseaworthy he was returned as a passenger on another vessel. Upon his
arrival, he informed officers of this Service that it was his purpose to
remain in the United States if he could do so. He was thereupon
excluded as an immigrant not in possession of an immigration visa. Fine
proceedings were then instituted. The court held that a fine would not
lie. It found, in effect, that the alien was not an immigrant, but a
bona fide seaman and that the vessel's only duty was to see that he
complied with the provisions of section 20 of the Immigration Act of
1924. Presumably what the court meant was that the vessel was to detain
the alien on board until inspection or to detain him on board after
inspection and to deport him if required to do so, but that he should
not have been held for a Board of Special Inquiry by this Service.
No appeal was taken from the court's decision, but neither the
Department of Labor nor the Department of Justice indicated that they
agreed with the court's decision. (See file 55575/930 which is attached
for ready reference.) In any event the Board of Immigration Appeals and
the courts have not followed the reasoning of the court in that case.
For instance in the Matter of M. S. Harry G. Seidel, /1/ 56093/156, Apr.
2, 1943, the Board made the following pertinent comment:
While a seaman, arriving as such and applying for admission as
a seaman in pursuit of his calling, is not entitled to a hearing
before a Board of Special Inquiry and may be ordered detained on
board by an examining inspector (United States ex rel. D'Istria v.
Day, 20 Fed.(2d) 392), a seaman may apply for admission as an
immigrant. If and when a seaman applies for admission as an
immigrant, his case is to be considered the same as any other
alien applying for admission as an immigrant. The procedure in
this respect is outlined in sections 15 to 18 of the 1917 act.
Such applicant for admission, is not found clearly and beyond a
doubt entitled to enter by the inspector first examining, must be
held for examination before a Board of Special Inquiry. A seaman
who applies for admission as an immigrant is, therefore, entitled
to a hearing before a Board of Special Inquiry if his right to
enter as an immigrant is not established to the satisfaction of
the primary inspector. He may not be ordered detained on board by
a single inspector.
In another case involving the M/S Harry G. Seidel, 56118/178, April
24, 1943, the Board said:
The protest recites the above facts and asks that a fine be not
imposed. First, because the alien was a seaman, not an immigrant,
upon his last arrival and, second, that upon the facts presented,
the line could not have ascertained prior to the vessel's
departure from the last port outside the United States by the
exercise of reasonable diligence that the alien named was an
immigrant. The first argument is untenable. At the time of his
last arrival, the alien named applied for admission as an
immigrant for permanent residence, not as a seaman for purposes of
reshipping. Obviously then, he is an immigrant within the
prohibition contained in section 16 of the Immigration Act of
1924.
Recently in the Matter of the Estonian Yawl "Dockan', F-2078, April
12, 1949, the Board dismissed an appeal from the decision of this
Service imposing a fine of $8,000 against the master and owners of the
vessel for bringing into this country a number of aliens who were
employed aboard as seamen but who applied for admission for permanent
residence upon the yawl's arrival. In that case the Central Office
discussed in some detail the question of liability of the responsible
persons for bringing into this country alien seamen who are, in fact,
immigrants. See also the Matter of the S.S. Astri, 56118/788 (Jan. 6,
1947); the Matter of the S.S. Evangeline, 56071/161, (Mar. 13, 1943);
and the Matter of the S.S. Merchant Prince, 56118/653 (Dec. 9, 1942).
In some of these cases cited above no fines were imposed, but only on
the basis that the responsible (parties) did not know and could not have
ascertained by the exercise of reasonable diligence that the individuals
transported were immigrants.
The courts also have imposed fines in this type of case. See
Transatlantica Italiana v. Elting, 66 F.(2d) 495 (C.C.A.2d) (causes of
action Nos. 4 and 6).
The case of Taylor v. United States, supra, which was also cited by
the Board as a basis for not imposing fine in the instant case applies
"to sailors carried to an American port with a bona fide intent to take
them out again when the ship goes on,' is therefore, not in point, and
has never heretofore been held to nullify a proceeding under section 16
of the Immigration Act of 1924, merely because the individuals
transported were seamen.
Since the Board's decision in the instant case will establish a
precedent which is in disregard of all its previous holdings, and as it
will have serious consequences in its effect on the enforcement of the
immigration laws, the case should be returned to the Board for further
consideration.
Motion is hereby made, That the Board of Immigration Appeals
reconsider and withdraw its order of October 7, 1949, and that it enter
an order affirming the order of this Service dated July 8, 1949,
imposing a fine in the sum of $1,000.
It is further moved, That in the event the Board of Immigration
Appeals does not grant the foregoing motion, it certify the case to the
Attorney General for review pursuant to the provisions of 8 C.F.R.
90.12(c).
So ordered.
(1) This case involved a fine proceeding under section 20 of the
Immigration Act of 1924, but it describes the proper procedure to be
followed in the case of an alien seaman applying for admission for
permanent residence.
Discussion: This case is before us on a motion of the Commissioner
dated November 3, 1949, requesting that we reconsider our decision of
October 7, 1949, and impose a fine. In our decision of October 7, 1949,
we sustained an appeal from the order of the Assistant Commissioner
imposing a fine, and held that on the facts of record a fine would not
lie.
This is an administrative fine proceeding under section 16 of the
Immigration Act of 1924 against the Sword Line, Inc., a domestic
company, agents of the S.S. Fred Herrling, a vessel owned by the United
States Maritime Commission and chartered to the Sword Line. The basis
of the fine is that the Fred Herrling brought to the United States one S
F , an alien immigrant who did not have an unexpired immigration visa.
The facts are simple. F is occupationally a bona fide seaman and has
been such for many years. In August 1947 he signed on as a member of
the crew of the S.S. Fred Herrling for a round trip from New York and
return. This is an important fact. The contract of employment required
return of the seaman to New York. F remained a member of the crew of
the Herrling until the vessel did return to New York on May 16, 1948.
During the period elapsing from departure from New York in August 1947,
until return May 16, 1948, the vessel engaged in commerce between many
foreign ports. F continuously was a seaman on the Fred Herrling during
all of this time and returned with the vessel to New York.
F obtained an immigration visa in London, England, September 5, 1947,
during the time the Fred Herrling was there. Clearly, it was his
intention to secure regular permanent residence in the United States.
However, before the vessel finally returned to the United States the
visa expired. The master of the Fred Herrling knew F secured an
immigration visa and, in fact, gave F a letter of recommendation to
present to the American consul.
In our prior decision we held on these facts that the Fred Herrling
was not bringing F to the United States. The Supreme Court in Taylor v.
United States, 207 U.S. 120, clearly and beyond any possibility of
confusion differentiated between bringing an alien to the United States
"for the sake of transporation' as against bringing an alien to the
United States "as incident to employment on the instrument of
transporation.' True, in the Taylor case, the transportation agency
intended to take the seaman out on the vessel upon which he arrived in
accordance with the term of employment. The court did not have before
it a seaman who signed on a vessel in the United States for a round trip
voyage. The reasoning of the court, however, is as applicable to the
one case as to the other. We by no means wish to imply that in no case
where an alien is employed as a seaman a fine under section 16 will not
lie. We have approved the imposition of fines in some such instances.
/1/ The facts in each case must be studied to determine whether the
alien was brought to the United States for the sake of transportation
even though working as a seaman, or whether he was brought as an
incident to employment on the instrument of transporation.
To determine the issue in the present case, we must look to the facts
as they existed at the time F was signed on the Fred Herrling at the
port of New York in August 1947. The record shows that F was a seaman
occupationally. He wanted a job. The operators of the Fred Herrling
employed him as a seaman on a trip from New York to foreign ports and
return to New York. There is not an iota of evidence that then the
operators or the master of the Fred Herrling had any reason to believe
that F wished transportation abroad to secure an immigration visa, and
then transporation back to the United States as an immigrant.
But even if the transportation line was aware that F would seek an
immigration visa during the voyage, having signed on the Fred Herrling
as a seaman for a round trip voyage, the master was obliged to return
him to the United States and could not discharge him in a foreign port.
Section 2195 of title 18 (formerly sec. 486) provides as follows:
Whoever, being master or commander of a vessel of the United
States, while abroad, maliciously and without justifiable cause
forces any officer or mariner of such vessel on shore, in order to
leave him behind in any foreign port or place, or refuses to bring
home again all such officers and mariners of such vessel whom he
carried out with him, as are in a condition to return and willing
to return, when he is ready to proceed on his homeward voyage,
shall be fined not more than $500 or imprisoned not more than 6
months, or both.
We cannot expect the master of the Fred Herrling to violate F 's
contract of employment and violate a criminal statute of the United
States because the seaman's immigration visa expired before the return
of the vessel to this country. /2/
The district director at New York, in his memorandum of March 29,
1949, recommending the imposition of a fine, states in part as follows:
The vessel stopped at many foreign ports, any one of which the
United States consul stationed there could have revalidated the
visa without any delay or difficulty inasmuch as the subject was
eligible for nonquota status, having been born in a South American
country.
This observation is beside the point. The penalty is against the
ship operators for its alleged unlawful act -- not against the seaman F
. The master of the Fred Herrling could not himself have had the visa
revalidated, nor could he discharge F in a foreign port for failure to
do so.
We conclude, as we previously concluded, that the Fred Herrling did
not bring F to the United States for the sake of transportation, but
that he was brought as an incident to employment on the instrument of
transportation.
We affirm our prior decision. This does not establish a precedent in
disregard of all previous holdings as alleged in the Commissioner's
motion, nor does it involve a type of case frequently arising. We see
no need to submit the matter to the Attorney General.
Order: It is ordered that the prior decision of the Board be
affirmed.
(1) The Commissioner's motion cites several cases where we found the
facts in the case constituted a violation of section 16 of the 1924 act.
(2) See Weedin v. Banzo Okada, 2 F.(2d) 321 (C.C.A. 9, Nov. 24,
1924).
Alien contract labor -- Section 3 of the Immigration Act of 1917 -- Applicability of excluding provisions to a moving van helper, working for a Canadian concern, engaged in international trade.
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, may be considered a nonimmigrant and not subject to exclusion under the alien contract labor provisions of section 3 of the Immigration Act of 1917, where he is regularly employed by a Canadian concern, a common carrier of household goods, whose business is preponderantly international in character and which is subject to the regulations of the Interstate Commerce Commission requiring, among other things, that such employee be aptly skilled for this work.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 -- No immigration visa. Executive Order 8766 -- No
passport. Act of 1917 -- Contract laborer.
Discussion: This record is before us on appeal from an order entered
by the Assistant Commissioner, May 27, 1949, affirming the appellant's
exclusion at the port of Detroit, Mich., on the above-stated grounds.
Counsel on appeal urges that the appellant is entitled to enter as a
nonimmigrant temporary visitor for business.
Briefly, the pertinent facts establish that the appellant is a native
and citizen of Canada, male, 57 years of age, who arrived at the port of
Detroit, Mich., on April 28, 1949, and sought admission as a temporary
visitor for business, a helper on a truck engaged in the moving of
household effects between this country and Canada and vice versa. He is
employed by the E. W. Lancaster Co., Ltd., of Windsor, Ontario, Canada,
and has been so employed since 1932 or 1933. He enters the United
States several times a week to load or unload furniture. He remains in
the United States on these occasions for approximately 3 to 4 hours. He
is employed on an hourly basis and is paid by the E. W. Lancaster Co. in
Canadian currency.
The Assistant Commissioner, inter alia, finds the appellant
excludable under section 3 of the 1917 act, which provides, in part, for
the exclusion of aliens "who have been induced, assisted, encouraged, or
solicited to migrate to this country by offers or promises of
employment, * * * or in consequence of agreements * * * to perform labor
in this country.' The Commissioner relies upon a previous interpretation
of the above-quoted contract labor provisions wherein it was held that
while alien operators of trucks engaged in international drayage from
Canada are admissible, such privilege does not extent to accompanying
aliens, whether employees of the truck operators or not, who enter for
the purpose of unloading or loading commodities at points in the United
States (Matter of D 55976/55 (1937)).
The alien's representative has informed this Board that international
motor common carriers of household goods, such as the appellant's
employer, are under strict supervision of the Interstate Commerce
Commission; that the type of service rendered and the provisions of the
Commissioner's regulations require employees who possess skilled
knowledge for handling fragile articles of high value and who must be of
a character, temperament, and habit to best assure satisfactory
performance of their duties; that such common carriers generally have a
comparatively small turn-over in van driver and helper personnel, and
that there are no restrictions on the services of helpers on United
States moving equipment operating in Canada.
The evidence establishes that the van driver and his heloper (the
appellant) merely deliver and unload household effects in the United
States which have had their origin in Canada or, vice versa, they pick
up a load in the United States for delivery in Canada. It is alleged
that 85 percent of the business is international. This Board has held
that where an alien seeks admission primarily to accept an offer or
promise to perform labor of the type covered by the contract labor
provision or in consequence of an agreement to perform such labor no
matter where or when such offer, promise or agreement was made, the
alien is subject to the contract labor provisions of the statute (Matter
of C , 56172/981, Oct. 10, 1945). There is no question but that in the
instant case the labor to be performed within the United States is
clearly manual and of the type comprehended by the contract labor
provisions of the 1917 act.
An alien, to be ineligible to admission to the United States as a
contract laborer under section 3 of the Immigration Act of 1917, must
have been induced to migrate primarily by reason of an offer, promise or
agreement to perform labor in the United States. The applicant,
however, engages in no other labor while in the United States and
returns immediately to Canada upon the completion of his assigned task.
The loading or unloading while in the United States is necessarily a
function of delivery and is merely incidental to the primary purpose of
this peculiar type of international trade, namely, the final and safe
delivery of household effects. It is noted that the appellant in the
instant case is paid in Canadian currency in Canada by a Canadian
concern and that his employment by the Canadian concern originated in
Canada.
Because of the particular skill required and the regulations under
which these common carriers operate, we think that the appellant, a duly
qualified employee of a common carrier engaged in international trade,
functions as an operating crew member in the same manner as the driver
of a truck or the operating crews on trains or vessels (also common
carriers) which cross our international boundaries from contiguous
territory. It is concluded, therefore, that since the appellant seeks
entry primarily for the purpose of consummating delivery, whether it be
in Canada or in the United States, and the labor performed in loading or
unloading is merely incidental to this primary purpose, he may be
properly considered as a nonimmigrant and not within the excluding
provisions of the alien contract labor law, so long as he engages in no
labor in the United States other than the loading or unloading
incidental to final delivery. The appeal will be sustained. The
appellant's admission will be authorized as a nonimmigrant temporary
visitor for business without a consular visa.
Order: It is directed that the appeal be and the same is hereby
sustained, the alien to be admitted as a nonimmigrant temporary visitor
for business under section 3(2) of the Immigration Act of 1924.
Suspension of deportation -- Section 19(c)(2) of the Immigration Act of 1917, as amended -- Eligibility -- Effect where child becomes a major after application for such relief -- Serious economic detriment -- Evidence.
1. Where an applicant for suspension of deportation is a minor at the time she makes application for such relief under section 19(c)(2) of the Immigration Act of 1917, as amended, and she seeks such relief on the basis of serious economic detriment to her parent, who is legally obligated to support such minor child, the fact that such applicant reaches her majority before her case is adjudicated by the Central Office will not, of itself, constitute a bar to the grant of such relief.
2. Although such child be working while attending school, where the parem is to continue to support such child until the child completes her education, and where, if this child were deported and deprived of her present earnings she would be dependent upon her parent, such liability to which her parent would be subjected is deemed to constitute sufficient economic detriment to warrant granting suspension of deportation as authorized in section 19(c) of the Immigration Act of 1917, as amended.
CHARGE:
Warrant: Act of 1924 -- Remained longer, transit.
Discussion: By order dated May 10, 1949, the Central Office denied
the application for suspension of deportation submitted by the
respondent and her sister, M M L , (A-6151558), and granted both
voluntary departure.
The aliens' applications for suspension of deportation were denied on
the ground that they were over the age where the citizen parent (mother)
was legally liable for their support.
This is a motion for reconsideration by L E L only.
She is a 22-year-old single female, a native and citizen of the
Philippine Islands, whose only entry occurred on August 13, 1945, when
she was admitted for 60 days in transit in the company of her parents.
Her mother is a native-born citizen of the United States.
The motion for reconsideration states that when the respondent's
application for suspension of deportation was submitted in 1946, she was
under the age of 21, and that at the time of the hearing upon her
application "in January of 1947' she still was under 21 years of age.
The respondent's application for suspension was executed on August 6,
1946. The warrant of arrest was issued September 4, 1946, and was
served on January 2, 1948. The hearing was held on January 15, 1948.
(There was no hearing held in January 1947 as alleged.)
This Service has held that suspension of deportation must be denied
where there is not a legal obligation to support an alien applicant who
alleges that his deportation will cause his legally resident or citizen
parent a serious economic detriment. This holding is on the theory that
any economic detriment in such a case would be voluntarily assumed.
The alien's motion for reconsideration raises the question as to
whether the fact that an application for suspension was made at a time
when the deportable alien being under 21 had a legal claim for support,
would not entitle such alien to suspension of deportation even though at
the time the Central Office considered the case on behalf of the
Attorney General, the legal obligation to support no longer applied as
the alien applicant had reached her majority.
The Service has held that where suspension of deportation is
predicated upon a serious economic detriment to a minor child, the fact
that the minor child reached 21 at the time the Central Office
considered the application was immaterial so long as such application
was submitted during the minority of the child. (See Matter of V A ,
A-4860140 (1945 Atty. Gen.).) /1/ In other words, although section 19 of
the Immigration Act of 1917, as amended, requires the serious economic
detriment be to a minor child, this Service has felt that the equities
require that consideration be given to a request for suspension as of
the date the application was submitted since normal delay required by
Government procedure should not act as a penalty where the application
has been filed in good faith prior to the majority of the child.
The equities of the situation, require that a similar common sense
view be taken of the situation where the alien applicant is a minor at
the time request for suspension is made on the basis of a serious
economic detriment to a citizen or legally resident alien parent who is
legally obligated to support such minor, and that the normal delay
required by Government procedure should not act as a penalty in such
cases. It would, therefore, appear proper to grant suspension of
deportation to an alien who submitted an application prior to reaching
majority but whose case was not adjudicated by the Central Office until
after he had reached majority.
The respondent's case will, therefore, be considered to determine
whether she qualifies for suspension of deportation. Her application
for suspension of deportation reveals that from 1945 to 1946 she was
employed as a railway express file clerk at a monthly salary of $163.
The respondent's mother claimed that she supports the alien. In view of
her earnings, any sums provided by the respondent's mother appear to be
merely gratuitous. The motion for reconsideration alleges that if the
alien were deported, she would find it impossible to find employment in
view of the fact that her education had been retarded by the Japanese
occupation of the Philippine Islands. It is noted that the alien, who
came to the United States for the first time in August 1945, succeeded
in finding part time employment in the same year and which paid her $163
a month. There appears to be no reason why she could not support
herself in a country where she was familiar with the language and
custom.
Reconsideration of the entire record fails to reveal that the alien
has qualified for suspension of deportation and that relief will be
denied to her. She has established her good moral character for the
past 5 years and her financial ability to depart voluntarily. In view
of her close family ties in the United States she will be granted the
privilege of voluntary departure. Preexamination will be denied as it
does not appear that a quota visa is readily available to the alien.
Recommendation: It is recommended that an order of deportation not
be entered at this time but that the alien be required to depart from
the United States, without expense to the Government, to any country of
her choice within 90 days after notification of decision, conditioned
upon arrangements being made with the local immigration office for
verification of departure.
So ordered.
(1) Editor's Note. -- Also see Matter of M , A-5174489 (1946, Acting
Atty. Gen.)
Discussion as to Deportability: This case is before us on appeal
from a decision of the Assistant Commissioner dated September 26, 1949,
directing that, upon motion for reconsideration by respondent, voluntary
departure within 90 days be permitted and affirming the denial of the
application for suspension of deportation.
Respondent, 22 years of age, a native and citizen of the Philippine
Islands, last entered the United States at San Francisco on August 13,
1945, with her older sister. She was admitted for 60 days under section
3(3) of the Immigration Act of 1924 as an alien in continuous transit
through the United States; since she has remained longer than the
permitted time, respondent is subject to deportation under sections 14
and 15 of the Immigration Act of 1924.
Discussion as to Eligibility for Suspension of Deportation: When
respondent made application for suspension on August 6, 1946, and also
when a hearing on this application was held in January 1948, respondent
was a minor child under the age of 21 years. However, when respondent's
application was acted upon, she had become 21; the Assistant
Commissioner, in an order dated May 10, 1949, denied suspension on the
ground that respondent's citizen parents are no longer legally liable
for her support. The Assistant Commissioner concedes in his order of
September 26, 1949, that the status of respondent in respect to whether
or not she is a "minor' child should be determined as of the date of the
filing of application in question. We concur in this respect.
But, even though the Assistant Commissioner stated that respondent
had established her good moral character during the past 5 years and her
financial ability to depart voluntarily, the application for suspension
was denied because she is currently earning $163 per month as a file
clerk for the Railway Express Agency claim department. Respondent's
mother had claimed that she supported her and very possibly she does in
some measure, for the record reveals that since February 1946 respondent
has only been working part time for the employer while going to Berkeley
High School. Respondent's mother stated that even though respondent has
attained her majority, they will continue to contribute to her support
in order that she may finish her education and, respondent's mother
asserts, that if it were necessary to support respondent outside this
country, the family would be subjected to a burdensome hardship.
Therefore, even though there is currently no economic detriment to
respondent's family, as she is regularly employed, yet, upon leaving
this country under the warrant and order of deportation, respondent
would be deprived of her salary and would then be dependent upon her
parents. This liability to which her parents would be subjected
constitutes sufficient economic detriment to warrant the granting of
discretionary relief by suspension of deportation, as authorized in
section 19(c) of the Immigration Act of 1917, as amended.
Suspension of Deportation -- Findings of Fact: Upon the basis of all
the evidence presented, it is found:
(1) That the alien is not ineligible for naturalization in the
United States;
(2) That the alien has been of good moral character for the
preceding 5 years;
(3) That deportation of the alien would result in serious
economic detriment to her parents, naturalized citizens of the
United States;
(4) That after full inquiry, no facts have been developed which
would indicate that the alien is deportable under any of the
provisions of law specified in section 19(d) of the Immigration
Act of 1917, as amended.
Suspension of Deportation -- Conclusions of Law: Upon the basis of
the foregoing findings of fact, it is concluded:
(1) That the alien is eligible for suspension of deportation
under the provisions of section 19(c)(2) of the Immigration Act of
1917, as amended.
Order: It is ordered that deportation of the alien be suspended
under the provisions of section 19(c)(2) of the Immigration Act of 1917,
as amended.
It is further ordered, That the order entered by the Assistant
Commissioner on September 26, 1949, be and the same is hereby withdrawn.
It is further ordered, That if during the session of the Congress at
which this case is reported, or prior to the close of the session of the
Congress next following the session at which this case is reported, the
Congress passes a concurrent resolution, stating in substance that it
favors the suspension of such deportation, the proceedings be canceled
upon the payment of the required fee and that the alien be charged to
the quota for the Philippine Islands.
Citizenship -- Acquisition by child after birth abroad, through residence in the United States and a parent's naturalization before the child's eighteenth birthday -- Section 314(c) of the Nationality Act of 1940 -- Significance of phrase "legal separation.'
1. "Legal separation' of the parents as used in section 314(c) of the Nationality Act of 1940 means either a limited or absolute divorce obtained through judicial proceedings, and where the actual "parents' of the child were never lawfully married, there could be no "legal separation' of such "parents.'
2. A child born in Costa Rica on August 31, 1942, of an alien mother (who still is an alien residing in Costa Rica, and who never married the child's father), and of an alien "father' who became naturalized here on January 6, 1944, did not acquire United States citizenship upon her admission to the United States for permanent residence on September 8, 1948, under section 314(c) of the Nationality Act of 1940.
3. That a legitimation of such child by the natural father, under
section 230 of the Civil Code of California, may have occurred after the
"father' was naturalized, does not alter the above conclusion.
Discussion: Subject was born on August 31, 1942, at Puntarenas,
Costa Rica. According to the subject's birth certificate, her birth was
registered on March 2, 1944, by her mother, who declared that the
subject was the legitimate daughter of H H , engineer, and of T P B , a
housewife. The subject, however, was not named in the petition for
naturalization of H H , who was admitted to citizenship on January 6,
1944, in the United States District Court, San Francisco, Calif. H H
alleged in his petition for naturalization that he was not married and
that he had no children.
In letter dated June 6, 1949, H H stated the following:
In connection with the application for certificate of
citizenship of my minor daughter H M H , born out of wedlock on
August 31, 1942, in Puntarenas, Costa Rica, I wish to state that
when filing my own petition for naturalization I failed to list
her name, as at that time I was not certain that she was my
daughter.
I also wish to state that when her mother, T P B registered her
birth with the proper Costa Rican authorities she registered her
as legitimate. My name on her birth certificate appears as her
father. This was done without my knowledge.
According to the subject's application, her mother is now residing in
Costa Rica, The subject's mother was never married to H H .
On January 12, 1949, a decree was entered in the First Civil Court,
San Jose, Costa Rica, giving the "definite' custody of the subject to
her natural father, H H .
The subject lawfully entered the United States for permanent
residence on September 8, 1948, and is now residing with her natural
father in the State of California as his daughter.
The question presented is whether the subject derived United States
citizenship, under the provisions of section 314 of the Nationality Act
of 1940, through the naturalization of but one parent.
The field office has recommended that the application be granted and
has found that the subject became legitimated under 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.
Section 314 of the Nationality Act is the only provision of the
Nationality Act relating to derivation of United States citizenship by
children born outside the United States of alien parents. Consequently,
the subject's case can be considered only under this section of the law.
The conditions relating to parental naturalization set forth in this
section are:
(a) The naturalization of both parents; or
(b) The naturalization of the surviving parent if one of the
parents is deceased; or
(c) The naturalization of the parent having legal custody of
the child when there has been a legal separation of the parents.
Neither subsection (a) nor (b) is applicable to this case since the
available evidence indicates that the subject's mother is living and has
not been naturalized as a United States citizen.
Whether subsection (c) is applicable depends on whether there has
been a legal separation of the parents. /*/ In the case of A F ,
0300-43294, March 27, 1946, it was held that the term "legal
separation,' used in section 314(c) meant either a limited or absolute
divorce obtained through judicial proceedings. It is thus apparent that
the term "legal separation,' can refer only to a situation where there
has been a termination of the marital status. Since the subject's
parents were not lawfully joined in wedlock, they could not have been
legally separated. Consequently, there is no provision of the law under
which the subject could have derived citizenship.
It is ordered that the application for a certificate of citizenship
be denied.
(*) Editor's note. -- See Op. Atty. Gen. 90 (1928) and In re Lazarus
24 F.(2d) 243, referred to in the President's Committee Report on the
legislation in question, House Committee Print, 76th Cong., 1st sess.
(pt. I).
Membership in a proscribed organization (Communist Party of United States of America) -- Deportability -- Act of October 16, 1918, as amended by acts of June 5, 1920, and June 28, 1940 -- Evidence -- Burden of proof -- Quantum of proof -- Questions of "constitutionality' of statutes involved.
1. The proscribed nature of the Communist Party of the United States of America during a given period may be established by documentary evidence and oral testimony, and it is not necessary for the administrative agency determining deportability under the act of October 16, 1918, as amended, to refine and construe language so as to reach a different result, when in their ordinary sense, statements in many documents of that party in evidence import force and violence.
2. "Past' membership is within the purview of the act of October 16, 1918, as amended (act of June 28, 1940).
3. The "constitutionality' of statutes enacted by Congress is not a matter within the province of the Board of Immigration Appeals to pass upon.
4. Knowledge of the proscribed doctrines by the alien need not be proved.
5. The doctrine of "clear and present danger' does not apply, since the courts have held that the imminence of the changes advocated is not a factor to be considered.
6. The doctrine as to "ex post facto' laws applies to criminal or penal laws and not to deportation statutes.
7. The burden of proof upon the Government (see sec. 23 of the Immigration Act of 1924) in deportation proceedings as to the proscribed nature of the party need not be met by evidence which is "clear, unequivocal, and convincing.'
CHARGES:
Act of 1918, as amended -- After entry into the United States
became a member of and affiliated with an organization which
advocated the overthrow by force and violence of the
Government of the United States; Act of 1918, as amended -- After entry into the United States
became a member of and affiliated with an organization which
distributed printed matter which advocated the overthrow by
force and violence of the Government of the United States.
Discussion: On February 17, 1949, the Assistant Commissioner found
that the respondent was subject to deportation and ordered that he be
deported to Germany. The record is before us on appeal from that order.
The statute under which the Assistant Commissioner found the
respondent deportable is the act of October 16, 1918, as amended by the
acts of June 5, 1920, and June 28, 1940 (40 Stat. 1012; 41 Stat. 1008;
54 Stat. 673; 8 U.S.C. 137).
The respondent was born in Munich, Bavaria, Germany, on November 13,
1892. He came to the United States on June 23, 1914, and with the
exception of two temporary visits abroad, has resided continuously in
this country since that date. He last entered the United States in
August 1923 and was readmitted for permanent residence.
It has been stipulated that between 1930 and January 1, 1939,
continuously, the respondent was a member of and affiliated with the
Communist Party of the United States of America; and that between 1933
and 1935, continuously, he was a member of and affiliated with the Trade
Union Unity League.
The presiding inspector and the Assistant Commissioner have found
that during the period of the respondent's membership in the Communist
Party, it advocated the overthrow of the Government of the United States
by force and violence. Although the presiding inspector also found that
during the period of the respondent's membership in the Trade Union
Unity League, it likewise advocated the overthrow of the Government of
the United States by force and violence, the Assistant Commissioner
found that the evidence of record was insufficient to warrant a finding
that the Trade Union Unity League was an organization which so
advocated.
The pertinent parts of the statute involved read as follows:
That any alien who, at any time, shall be or shall have been a
member of any one of the following classes shall be excluded from
admission into the United States:
(c) Aliens who * * * are members of or affiliated with any
organization, association, society, or group, that believes in,
advises, advocates, or teaches:
(1) The overthrow by force or violence of the Government of the
United States * * *
(e) Aliens who are members of or affiliated with any
organization, association, society, or group that writes,
circulates, distributes, prints, publishes, or displays, or causes
to be written, circulated, distributed, printed, published, or
displayed, or that has in its possession for the purpose of
circulation, distribution, publication, issue, or display, any
written or printed matter of the character described in
subdivision (d) "advising, advocating or teaching; (1) the
overthrow by force or violence of the Government of the United
States.'
SEC. 2. Any alien who was at the time of entering the United
States, or has been at any time thereafter, a member of any of the
classes of aliens enumerated in section 1 of this act, shall, upon
the warrant of the Attorney General, be taken into custody and
deported in the manner provided in the Immigration Act of February
5, 1917. The provisions of this section shall be applicable to
the classes of aliens mentioned in this act, irrespective of the
time of their entry into the United States. (Act of October 16,
1918, as amended by the acts of June 5, 1920, and June 28, 1940;
40 Stat. 1008; 54 Stat. 673; 8 U.S.C. 137.)
It is not within the province of this Board to pass upon the
constitutionality of statutes enacted by Congress. (Panitz v. District
of Columbia, 112 F.(2d) 39, 42; Todd v. Securities and Exchange
Commission, 137 F.(2d) 475, 478; Central Nebraska Public Power & Irr.
Dist. v. Federal Power Commission, 160 F.(2d) 782, 783; Interchangeable
Mileage Ticket Investigation, 77 I.C.C. 200, 202; Maritime Assn.,
Boston Chamber of Commerce v. Ann Arbor R. Co., 95 I.C. C. 539, 542;
Telephone and Railroad Depreciation Charges, 118 I.C.C. 295, 325-326;
Galveston Commercial Assn. v. Galveston H. & S.A. Ry. Co., 128 I.C.C.
349, 378-379; In the Matter of East Ohio Gas Company, 1 F.P.C. 586,
592; Mississippi River Fuel Corporation, 2 F.P.C. 170, 175). We shall,
however, comment on the constitutional aspects of the statute's
application to the instant proceedings.
It has been contended that as applied to the respondent, the statute
is an ex post facto law and hence unconstitutional. This argument is
advanced on the grounds that the respondent entered the United States 4
years prior to the enactment of the basic act of 1918 and that the
respondent left the Communist Party at least 1 year prior to the
inactment of the 1940 amendment.
The argument that an alien may not be deported except in accordance
with the laws in existence at the time of his admission has been
rejected by the courts time and time again (Sire v. Berkshire, 185 Fed.
967, 971; Chin Shee v. White, 273 Fed. 801, 804; Chung Yim v. U.S., 78
F.(2d) 43, 45. Ng Fung Ho v. White, 259 U.S. 276, 279-280, 66 L.Ed.
938, 941, 42 S.Ct. 492, 494).
With respect to the act of June 28, 1940, its legislative history
shows that it was enacted specifically to include past membership
because the Supreme Court had held in Kessler v. Strecker, 307 U.S. 22,
83 L.Ed. 1082, 59 S.Ct. 694, that the act of October 16, 1918, as
amended by the act of June 5, 1920, did not provide for the deportation
of past members of a proscribed organization. House of Represenatives
Report No. 994, Seventy-sixth Congress, first session, 1939, page 6;
Senate Report No. 1154, Seventy-sixth Congress, first session, 1939,
page 5. We are obliged to give effect to every clause and part of a
statute. (Ginsberg and Sons v. Popkin, 285 U.S. 204, 708, 76 L.Ed.
704, 52 S.Ct. 322). Furthermore, the prohibition against the passage of
ex post facto laws applies only to penal or criminal laws (Johannessen
v. U.S., 225 U.S. 227, 56 L.Ed. 1066, 32 S.Ct. 613; Bugajewitz v.
Adams, 228 U.S. 585, 57 L.Ed. 978, 33 S.Ct. 607). Although the Supreme
Court has stated that deportation may result in the "loss of all that
makes life worth living' (Ng Fung Ho v. White, 259 U.S. 276, 284, 66
L.Ed. 938, 942, 42 S.Ct. 492, and that "it may visit as great a hardship
as the deprivation of the right to pursue a vocation or a calling'
(Bridges v. Wixon, 326, U.S. 135, 145, 89 L.Ed. 2013, 2111, 65 S.Ct.
1443) and that "it can be the equivalent of banishment or exile'
(Delgadillo v. Carmichael, October term, 1947, Supreme Court of the
United States), it has never construed deportation as punishment or as a
penalty so as to bring it within the ex post facto inhibition. On the
contrary, the courts have held that the fact that an immigration law may
be retrospective in its application to an alien does not make it
unconstitutional (Mahler v. Eby, 264 U.S. 32, 39, 68 L.Ed. 549, 554, 44
S.Ct. 283, 286; U.S. ex rel Lubbers v. Reimer, 22 Fed.Supp. 573). See
also Lauria v. U.S., 271 Fed. 261, certiorari denied 257 U.S. 635, 66
L.Ed. 408, 42 S.Ct. 48.
It has been argued that the statute should not be held to apply
unless there be proof of knowledge by the alien that the organization
advocated force or violence.
In the first place, the statute by its language does not apply only
to "knowing membership.' It is, therefore, unnecessary to prove
knowledge (Greco v. Haff, 63 F.(2d) 863; In re Saderquist, 11 F.Supp.
525, affirmed Sonquist v. Ward, 83 F.(2d) 890. Secondly, it has been
held that membership is sufficient evidence or knowledge of the
proscribed doctrines. Skeffington v. Katzeff, 277 Fed. 129, 132; Ex
parte Vilarino, 50 F.(2d) 582, 586). Lastly, the evidence in this case,
largely advanced by the respondent, shows that he was an active and
alert leader among a large group of people. We do not believe that such
an individual could have been a member of the Communist Party for 9
years without knowing its nature and aims.
Counsel has argued that the statute should be held to be inapplicable
to the instant case because of the absence of evidence of a "clear and
present danger.'
The principle set forth in Schenck v. U.S., 249 U.S. 47, 52, 63 L.
Ed. 470, 473, 39 S.Ct. 247, that freedom of speech may not be abridged
unless the activities create "a clear and present danger that they will
bring about the substantive evils that Congress has a right to prevent,'
is inapplicable to these proceedings. The courts have held that the
imminence of the changes or other actions advocated is not a factor to
be considered (U.S. ex rel. Georgian v. Uhl, 271 Fed. 676, 677; U.S. ex
rel. Abern v. Wallis, 268 Fed. 413, 416. See also Kjar v. Doak, 56
F.(2d) 566, 568; Lopez v. Howe, 259 Fed. 401, 404-405; Turner v.
Williams, 194, U.S. 279, 294, 48 L.Ed. 979, 985, 24 S.Ct. 719; Tiaco
v. Forbes, 228 U.S. 549, 556-557, 57 L.Ed. 960, 965, 33 S. Ct. 585).
Counsel has also contended that the burden of establishing that the
Communist Party advocated the overthrow of the Government of the United
States during the period of respondent's membership is upon the
Government, and that it must be met by evidence that is "clear,
unequivocal and convincing' (Schneiderman v. U.S., 320 U.S. 118, 125, 87
L.Ed. 1796, 1802, 63 S.Ct. 1333).
Counsel is in error. While the burden of proof is upon the
Government, the Schneiderman formula is inapplicable. In the
Schneiderman case the court was dealing with a proceeding to set aside a
judicial decree of naturalization. Such a proceeding the court held was
analogous to the setting aside of a public grant of land for the purpose
of which the evidence must be "clear, unequivocal, and convincing.' The
court arrived at this conclusion because "rights once conferred should
not be lightly revoked. And more especially is this true when the
rights are precious and when they are conferred by solemn adjudication,
as in the situation when citizenship is granted' (320 U. S. 118, 125;
87 L.Ed. 1796, 1802).
The criteria applicable to the instant proceedings are entirely
different. No prior judicial determination is involved; no attempt is
here made to set aside a decree entered into after opportunity to be
heard. As a matter of fact, the court made it abundantly clear in the
Schneiderman case that had the proceeding before it been other than
denaturalization proceedings on the ground of illegality, it might have
reached a different result. To quote the court, "We do not say that a
reasonable man could not have possibly found, as the district court did,
that the Communist Party in 1927 actively urged the overthrow of the
Government by force and violence. But that is not the issue here * * *
As pointed out before, this is a denaturalization proceeding in which,
if the Government is entitled to attack a finding of attachment as we
have assumed, the burden rests upon it to prove the alleged lack of
attachment by "clear, unequivocal, and convincing evidence' (320 U. S.
118, 153, 154, 87 Law Ed. 1796, 1817).
Many documents of the Communist Party were introduced into evidence
by stipulation for the purpose of establishing the nature and aims of
the Communist Party. We find that they contain such statements as (the
Communists) "openly declare that their aims can be attained only by the
forcible overthrow of all existing social conditions' (Communist
Manifesto, Ex. 16, p. 44). "The replacement of the bourgeois by the
proletariat state is impossible without a violent revolution' (State and
Revolution, Ex. 15, p. 20). "To think that such a revolution can be
carried out peacefully * * * means * * * either madness or else an open
and gross repudiation of the proletarian revolution' (Problems of
Leninism, Ex. 23, p. 20).
In their ordinary sense the foregoing statements import force and
violence. We are not called upon to refine and construe the language so
as to reach any different result (U.S. ex rel. Albern v. Wallis, 268
Fed. 413, 414; Antolish v. Paul, 283 Fed. 957, 959; Kenmotsu v.
Nagle, 44 F.(2d) 953, 955, cert. den. 283 U.S. 832, 75 L.Ed. 1444, 51
S.Ct. 365).
The testimony of several persons who had previously testified in
other deportation proceedings brought on similar grounds, was also
introduced into the record by stipulation. We have carefully considered
their testimony as well as all of the documentary evidence. We have
carefully reviewed the analyses of the evidence by the presiding
inspector and the Assistant Commissioner. We have examined closely all
of the contentions of counsel raised in oral argument and by brief. We
find on the basis of all of the evidence adduced that during the period
of the respondent's membership in the Communist Party of the United
States of America, it advocated the overthrow of the Government of the
United States by force and violence, and that it distributed printed
matter which so advocated (Matter of H , 5300756, May 13, 1949; Matter
of F , A-3430058, July 1, 1949; Matter of M , A-3407165, Aug. 12,
1949). The order of deportation will be affirmed.
Order: It is ordered that the appeal from the decision of the
Assistant Commissioner be and the same is hereby dismissed.
(*) Editor's note. -- See 3, I. & N. Dec. 411. Also see United
States v. Obermeier, 186 F.2d 243 (C.A.2, 1950), cert. denied, 340 U.S.
951 (1951).
Status -- National (but not citizen) of United States -- Acquisition in outlying possessions following transfer of territory to the United States -- "Blood' requirement as prerequisite to such acquisition (American Samoa, Guam -- See 3, I. & N. Dec. 589).
1. Transfer of territory by one nation to another transfers the "nationality' of the inhabitants thereof, subject to the right of election on their part to retain their former nationality by removal or otherwise, as may be provided by the terms of the instrument of cession.
2. When Germany and Great Britain ceded American Samoa to the United States by the Treaty of December 2, 1899, there was no provision in that treaty permitting former nationals of those countries to retain their former nationality.
3. No treaty, statute, or authoritative decision authorizes imposition of a requirement that to become a United States national through territorial acquisition one must be of a certain blood. The only requirement is that the ancestor through whom appellant claims United States nationality did, in fact, before the time of cession owe allegiance to the sovereign from whom the United States acquired the territory.
4. The blood standard prescribed by section 303 of the Nationality Act of 1940 (as amended) is a test of eligibility for United States citizenship, not eligibility for United States nationality.
5. Adult appellant's German grandfather living in Samoa at time of cession, lost his German nationality and acquired United States nationality at time of cession.
6. Adult appellant's father, the adult appellant herself, and her infant, the child appellant (putative father not involved), acquired United States nationality (but not citizenship) through the adult appellant's paternal grandfather.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 -- No immigration visa. Executive Order 8766 -- No
passport.
Discussion: Appellants, a 20-year-old female and her daughter, aged
22 months, applied for admission into the United States at the port of
Honolulu, T.h., on October 15, 1947, and were excluded by a Board of
Special Inquiry on February 19, 1948, on the above indicated grounds,
and they appealed. Pending decision on appeal, the applicants were
paroled.
The question presented is whether or not appellants may be considered
nationals of the United States. The conclusion of the Board of Special
Inquiry and that of the Central Office was that these person are not
United States nationals.
The adult appellant presented a birth certificate, showing birth July
12, 1927 at Apia, Upolu, American Samoa, of a half-caste father, A C ,
age 32, birthplace Savai, Upolu, American Samoa, and her mother, B C ,
half caste, age 26, birthplace Apia, Upola, American Samoa. Her name is
shown as A C , on the birth certificate. She also presented a birth
certificate, showing the birth of the child, C , on August 29, 1946, at
Fagealu, Tutuila, American Samoa, mother M C , half-caste, age 19 years.
The certificate shows no name for the father and indicates that the
child is not legitimate.
The adult appellant also presented an affidavit executed by her in
which she stated that she is the mother of the child appellant, C .
The adult appellant testified that her father's full name is A C ,
born in British Samoa, and about 52 years of age. She stated that her
mother's full name is B C , maiden name S , born in British Samoa, and
that she is 44 years of age. She testified that her father was taken to
American Samoa when he was 5 months of age. She further testified that
her grandfather's name was C , that he was German, and that her paternal
grandmother was an American Samoan.
There were submitted in evidence two affidavits by persons who stated
that they were the uncles of A C and that they knew of their own
knowledge that the said A C is a person of one-half Samoan blood and
that the said A C came to the island of Tutuila, American Samoa, before
the year 1900, and that the said A C had been ever since resident in the
island of Tutuila, American Samoa, and that the aforesaid A C is the
same person who is the father of the adult appellant, A C , now known as
Mrs. A B . There was also presented a letter of identity from the
office of the Governor of American Samoa indicating that Mrs. A B and
baby are both nationals of the United States and are destined to
Honolulu, T.H.
The conclusion that appellant is not a United States national was
based on an opinion of the General Counsel of April 6, 1948, which
stated that certain persons are to be considered nationals of the United
States, including:
(4) A person born prior to January 13, 1941, in wedlock in
American Samoa or in Swain's Island, who has resided there
continuously since birth, and whose father was indigenous there.
The adult appellant in this case was born in wedlock in American
Samoa, but the conclusion was that her father was not indigenous there,
because he was half Samoan and half German. The opinion concluded that
the parent must be of more than one-half Samoan blood to be considered
indigenous to American Samoa, that appellant's father is not a national,
and therefore appellant and her child did not inherit United States
nationality.
It is our opinion that appellant and her child are nationals of the
United States for the reason that her German grandfather became an
American national at the time the United States acquired American Samoa
from Germany. Germany made no provision for the retention of German
nationality by her nationals in that territory.
All relations with the inhabitants of Samoa are governed by the
treaty of December 2, 1899 between Germany, Great Britain, and the
United States, which treaty provides as follows:
Germany renounces in favor of the United States of America all
her rights and claims over and in respect to the islands of
Tutuila and all other islands of the Samoan group east of
longitude 171 west of Greenwich.
Great Britain in like manner renounces in favor of the United
States of America all her rights, and claims over and in respect
to the island of Tutuila and all other islands of the Samoan group
east of longitude 171 west of Greenwich (31 Stat. 1878; Treaty
Series, No. 314; Malloy, Treaties, II, 1595).
There is no rule of international law more firmly established than
the principle that "on a transfer of territory by one nation to another
the nationality of the inhabitants of territory acquired by conquest or
cession becomes that of the government under whose dominion they pass,
subject to the right of election on their part to retain their former
nationality by removal or otherwise, as may be provided' (Boyd v.
Thayer, 143 U.S. 135 (citing cases)). 38 Op. Att. Gen. (1934-37) 525,
530, states:
It is authoritatively stated to be a universally recognized
customary rule of the law of nations that the inhabitants of
subjugated as well as ceded territory lose their nationality and
acquire that (but not necessarily full citizenship) of the state
which annexes the territory, subject only to any option expressly
given concerning retention of former nationality.
As stated by Chief Justice Marshall, in the decision of the Supreme
Court in the case of American Insurance Company v. Canter, 1, Peters,
511, 542, "The same act which transfers their country transfers the
allegiance of those who remain in it.' The same principle is set forth
in Boyd v. Nebraska, 143 U.S. 135, 36 L.Ed. 103 (1892), 12 Sup.Ct.R.
375, Gonzales v. Williams, 192 U.S. 1, 47 L.Ed. 317 (1903), Moore,
International Law Digest, Vol. III, p. 311 and Hackworth, Digest of
International Law, Vol. III, p. 155.
There is no provision in the treaty ceding American Samoa to us
permitting the former nationals of Germany or Great Britain to retain
their allegiance to those countries. /1/
Since there was no such agreement it seems imperative to find that
appellant's German grandfather, and also appellant's half-German father,
both of whom were living in American Samoa at the time of cession, lost
their German nationality.
The question narrows, then, to the issue of the blood test used by
the Central Office in this case and other cases concerning the United
States nationality of Samoans (and Guamanians). Did the fact that the
father was half-German operate to prevent him from acquiring United
States nationality at the time he lost his German nationality?
The Central Office opinion concluded that it did, that not being of
more than half-white or more than half-Samoan blood, he did not acquire
American nationality. This opinion was based on an Acting
Commissioner's memorandum, issued on October 28, 1948, which said, "* *
* it is only reasonable to apply in such a case the blood standard
prescribed by section 303 /2/ of the Nationality Act of 1940 as amended
by the act of July 2, 1946, 60 Stat. 416, which required that an alien
to be eligible for naturalization, with certain exceptions not material
here, shall be at least of more than half of blood eligible for
naturalization.'
It is our opinion that the racial test provided in section 303 of the
Nationality Act is not such a bar for three reasons: (1) The racial
test provided in the Nationality Act, section 303, is a test set up to
determine eligibility for citizenship. The test does not extend to
determination of eligibility for nationality.
(2) The treaty between the United States, Germany, and Great Britain
did not restrict the transfer of the allegiance of the inhabitants in
any way. Indeed, it did not speak of the inhabitants at all. As we
have seen above, it is clear law that the transfer of territory
transfers the allegiance of those nationals of the ceding powers who
continue to reside therein. When Congress by treaty accepts a cession
of territory it accepts also the allegiance of the inhabitants in
accordance with the terms of that treaty. They become "nationals' of
the United States, a word which in our terminology has replaced the word
subject,' as it was used in the English law.
In 1937 the State Department decided in a case almost identical with
the instant (B ) case that the part-Samoan there involved was a United
States national. The only point of difference was that the grandfather
was a citizen of the United States (rather than of Germany as in the B
case). The decision was that the applicant was not a citizen of the
United States, because his father had not resided in the United States
prior to his birth, but that he was a national. The blood question did
not arise. (See Hackworth, Vol. III, p. 156).
The State Department and the Immigration Service adopted the
"indigenous requirement' quite recently, declaring that persons whose
parents were "indigenous' to American Samoa acquired United States
nationality. The question arose as to the meaning of "indigenous.' It
was to answer this question that the racial requirement was established,
borrowed from the Nationality Act and grafted onto this controversy.
(3) The racial test is applicable to "judicial naturalization' but
not to "Congressional naturalization.' It seems to us that there is an
analogy between acquisition of citizenship by annexation of territory
(Congressional naturalization) and the acquisition of nationality by
annexation of territory. Hawaii and Alaska provide outstanding examples
of the former. There is no racial restriction in acquisition of
citizenship through territorial annexation. Hackworth, discussing a
case which came up from Hawaii involving derivative citizenship of a
Chinese person says (vol. III, p. 121), quoting an opinion of the legal
adviser to the Department of State, January 28, 1931:
The principal difficulty in holding that C Y was naturalized
through the naturalization of his father would seem to lie in the
fact that he is not a "white person' within the meaning of section
2169 of the Revised Statutes, which fact would bar him from
obtaining naturalization in the ordinary way, through application
to a court. However, it has been uniformly held that the recial
provision in question had no application to collective
naturalization through annexation of territory, and it seems
equally reasonable to hold that it has no application to the
derivative naturalization of the children of persons collectively
naturalized * * * this seems to be the view of the Solicitor for
the Department of Labor.
An opinion of the Solicitor for the Department of Labor, at that time
C W (now district judge, Massachusetts), in file 55215/756 (Central
Office), January 18, 1935, discussed the subject of "judicial
naturalization' and "Congressional naturalization,' pointing out that
the race restriction applies in the former type but not in the latter
type of naturalization. In the latter type, citizenship is bestowed by
Congress without regard to blood. The Solicitor pointed out also that
derivative citizenship is not restricted by the racial qualification.
/3/ This view confirmed an earlier opinion by the Solicitor of Labor to
the same effect.
"The status of a national is less than the status of a citizen.
Since there is no racial restriction with regard to acquisition of
citizenship by territorial annexation or by derivation, there seems to
be no logic in imposing a racial restriction on acquisition of
nationality by territorial annexation. Such a requirement necessitates
an otherwise unnecessary inquiry into the racial background of
appellant's parents and grandparents, with all the attendant
complications of such an inquiry. Appellant in order to acquire United
States nationality, must show, not that she has a preponderance of
Samoan blood, and hence is "indigenous', but that her ancestor (father
or grandfather through whom she claims nationality) had a preponderance
of Samoan blood (and was living in the island territory at time of
acquisition), and hence was an "indigenous inhabitant.''
Why has the "indigenous' requirement been established only in respect
to inhabitants of American Samoa, Swain's Island, and Guam? In no other
territory of the United States have we ever imposed a racial requirement
in connection with collective naturalization or acquisition of
nationality at birth. It is true that in the case of Alaska, our treaty
with Russia (15 Stat. 542) excepted the so-called uncivilized tribes
from the privilege of admission to citizenship. But even as to these
uncivilized tribes, the Immigration Service ruled that they acquired
noncitizen nationality of the United States (Malloy, Treaties, vol. 2,
p. 1521).
There is no treaty, statute, or authoritative decision known to us
which authorizes the imposition of the "indigenous' requirement. It
creates a class of stateless persons among those who, in fact, owe
allegiance to the United States and to no foreign country, although such
persons were born in United States territory or have lived in such
territory since its acquisition by the United States. It has the effect
of denying recognition to natives or inhabitants of United States
territory for the sole reason that one or more ancestors were members of
the white race, preventing the descendant from being considered
"indigenous' even though he, himself may be more than half Samoan.
It is our opinion that a person living in Samoa on the date of
annexation who, prior to that date had owed allegiance to one of the
seceding powers, England or Germany, acquired United States nationality
at the date of cession, and that no artificial racial requirement should
be imposed at this late date to deny that nationality to them or to
those who have derived that nationality through them.
We hold that both appellants in the instant case possess United
States nationality and are entitled to admission to Hawaii as United
States nationals.
Order: It is ordered that the appeal be and the same is hereby
sustained, appellants to be admitted to the United States for permanent
residence.
(1) There is ample precedent for such provisions. They are present
in most treaties of cession. There was such a provision in the treaty
between the United States and Denmark by which the United States
acquired the Virgin Islands:
"Danish citizens residing in said islands may remain therein or may
remove therefrom at will, * * *. Those who remain in the islands may
preserve their citizenship in Denmark by making before a court of record
within 1 year from the date of the exchange of ratifications of this
convention, a declaration of their decision to preserve such
citizenship; * * *. The civil rights and the political status of the
inhabitants of the islands shall be determined by the Congress, subject
to the stipulations contained in the present convention' (39 Stat. (pt.
2) 1706; Treaty Series No. 629; Treaties, etc. III 2558).
There was such a provision in the treaty between the United States
and Spain by which the United States acquired the Philippine Islands and
Guam:
"Spanish subjects, natives of the peninsula, residing in the
territory over which Spain by the present treaty relinquishes or cedes
her sovereignty, may remain in such territory, or may remove therefrom *
* *. In case they remain in the territory they may preserve their
allegiance to the Crown of Spain by making, before a court of record,
within a year from the date of the exchange of ratifications of this
treaty (Apr. 11, 1899), a declaration of their decision to preserve such
allegiance; in default of which declaration they shall be held to have
renounced it and to have adopted the nationality of the territory in
which they may reside.
"The civil rights and political status of the native inhabitants of
the territories hereby ceded to the United States shall be determined by
the Congress' (30 Stat. 1754; Treaty Series, No. 343; Malloy,
Treaties, II, 1690).
Clearly, it is only those who formerly owed allegiance to the ceding
country whose nationality changes at the time of cession.
(2) The status of the adult respondent became fixed long before this
act was passed, of course. Racial eligibility for naturalization was
determined before 1940 by R.S. 2169, similar to section 303, except that
section 303 provides for naturalization for "descendents of races
indigenous to the Western Hemisphere,' which R.S. 2169 did not.
(3) In re Opinions of Justices, 68 Me. 589, 591 in which it was said:
"The inhabitants of territory ceded from one government to another
are collectively naturalized, and have all the rights of natural born
subjects by mere force of the cession of the soil without the necessity
of anything being expressed to that effect.'
See also 22 Op.Atty.Gen. 345, particularly 350, 351:
"With respect to the intention of Congress in the present case, I
cannot conceive that there is any doubt. The language of the Hawaiian
act (sec. 4) is that "all persons who are citizens of the Republic of
Hawaii on August 12, 1898, are hereby declared to be citizens of the
United States and citizens of the Territory of Hawaii.' This language is
positive and unqualified and leaves nothing to construe.
"* * *, considerations drawn from the general Chinese exclusion
policy of the United States, leading to the prepossession that this
grant of privilege is difficult to conceive or impossible to suppose,
may not justly be invoked to support a persuasion that Congress did not
intend "to admit to the full rights of citizenship a class of Chinese
persons in a distant land who if they had been domiciled in our midst
could under no circumstances ever have become citizens of the United
States.' Nevertheless this is precisely what Congress did. * * *'
Pardon "foreign' -- Effect on exclusion ground for conviction of crime abroad involving moral turpitude for which he was pardoned there -- Crime involving moral turpitude -- Theft as a servant (Canada) -- "Permanent taking' -- Evidence (Matter of T , 2, I. & N. Dec. 22) -- Juvenile Delinquency (Province of Quebec, Canaga) -- Age -- (Matter of O'N , distinguished, 2, I. & N. Dec. 319).
1. An alien remains subject to exclusion as one convicted abroad of a crime involving moral turpitude even though he receives a pardon abroad as to such offense.
2. Where the evidence shows the crime of theft as a servant in Canada involved a permanent "taking,' such offense is deemed to involve moral turpitude, and under the ruling in the Matter of T , it is permitted to go behind the foreign record of conviction to ascertain whether the "taking' was of a permanent nature.
3. In the Province of Quebec, Canada, where the age limit for juveniles was raised by proclamation dated November 3, 1942, to cover persons who are or appear to be under 18 years of age, an alien who committed the above crime involving moral turpitude over a period of 6 months before November 3, 1942, and before he reached 18 years of age on November 12, 1942, who was arrested therefore on October 24, 1942, who was tried on January 12, 1943, was not a "juvenile' when he committed the crime and was arrested, nor was he a "juvenile' when tried and sentenced (The Matter of O'N supra, was distinguished). See editor's note at end of decision re Proclamations in Canada regarding Juveniles.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 -- No immigration visa. Act of 1917 -- Convicted of
crime prior to entry, to wit: theft as a servant.
Discussion: The appellant, a 25-year-old native and citizen of
Canada, applied for admission to the United States as a visitor for 6
months. After a hearing conducted on August 6, 1948, a Board of Special
Inquiry excluded him on the grounds above stated. The appeal is now
before us for consideration.
Appellant is married to an American-born woman, and eventually he
would like to come here with his wife in order to establish a home.
Except for the commission of the offense which is now the basis for
his exclusion, he has conducted himself satisfactorily, so far as we can
determine from the record. If the second ground of exclusion set forth
above, that is, conviction of a orime prior to entry, is sustained,
under the now existing law he will never be able to establish a
permanent residence in this country. This will be true even if he were
to be pardoned for the offense committed by him in 1942 (United States
v. Smith, 17 F.(2d) 543 (C.C.A. 2, 1927); Weedin v. Hempel, 28 F.(2d)
603, C.C.A. 9, 1928).
On October 24, 1942, when the alien was 17 years and 11 months old,
he was arrested in Montreal on a charge of "theft as a servant' for the
taking of articles of clothing from his employer. He became 18 years of
age 3 weeks after this arrest, that is, on November 12, 1942. On
January 12, 1943, he was brought before a judge of the Sessions of the
Peace in the city of Montreal. The record of the Court, signed by the
Judge states:
"Whereupon, having first obtained the deposition of which said
prisoner was so committed, I stated to him that he was charged
with the aforesaid offense, describing it to him that he had the
option to be tried forthwith before a judged without the
intervention of a jury or to remain under bail to be tried in the
ordinary way by the Court of King's Bench, whereupon the prisoner
consented to be tried by the judge without a jury and being
arranged upon the charge I fixed his arraignment for the second of
February 1943.
Whereupon on the second day of February 1943, the said prisoner
being brought before me, judge of the Sessions of the Peace for
the District of Montreal, acting in and for the said District, who
being arraigned on the above-mentioned charge, pleaded guilty and
on the second day of February 1943, with the consent of the Crown
I suspended the sentence.
The alien has testified that he removed articles of clothing from the
stock of the store in which he was employed from time to time over a
period of 6 months, and that he sold these goods for $150.
On December 11, 1942, shortly after his arrest, but before he was
sentenced, the alien attempted to enter the United States as a temporary
visitor for 29 days. A Board of Special Inquiry excluded him as an
alien immigrant not in possession of an unexpired immigration visa. Not
knowing that criminal proceedings were even then pending against
appellant, this Board reversed that finding on January 6, 1943, but
ordered that the excluding decision be affirmed, because the alien was
not in possession of a visa or a nonresident alien's border-crossing
card. The alien did not reapply for admission to the United States at
that time. During the hearing before the Board of Special Inquiry he
was asked, "Have you ever been arrested by the police or before the
courts on any charge?' His answer was, "No.'
When the alien applied for an immigration visa before the American
consel in Quebec in 1948, he was asked if he had ever been arrested for
any crime or had any criminal record, he submitted to the consul a
letter on the stationery of the Quebec provincial police force reading:
This is to certify that a search made today through the
alphabetical index of our identification bureau has failed to
reveal any data regarding the above-named person.
It was not until the American consul had questioned appellant further
that he discovered that appellant did have a record, not in Quebec, but
in the city of Montreal. The vice consul advised the Immigration
Service that perjury was not considered in the case, but that the visa
was refused solely on the ground of the commission of a crime involving
moral turpitude.
Counsel argues before this Board that appellant should have been
treated as a juvenile delinquent at the time of his trial. At the time
of the commission of the crime a "child' was defined in the Province of
Quebec as anyone who was or appeared to be under 16 years of age. By a
proclamation of November 3, 1942, the age limit for juveniles in Quebec
Province was changed to cover persons who are or appear to be under 18
years of age. It is our opinion that respondent was not a juvenile
under any theory of law. At the time he committed the crime above
described he was under the age of 18 years, but the statute at that time
defined juveniles in a manner which did not include him. By the time he
was sentenced, the definition had been changed to cover persons up to 18
years of age, but by that time he was over the age of 18. It is quite
clear from the record that appellant was not tried by the court as a
juvenile. It is equally clear that on the facts the court was not in
error, as claimed by counsel, in treating him as an adult offender.
We have been generous in the matter of granting discretionary relief
to persons who have been convicted of crimes and misdemeanors while they
are children. Juvenile delinquency is not a deportable or excludable
offense (Matter of E , 56041/272, Apr. 7, 1944). The subject of
juvenile delinquency was considered at great length in Matter of O'N ,
55813/162 (approved by the Attorney General June 9, 1945). In that case
we admitted O'N to the United States in spite of the fact that he had
been convicted of theft under the Canadian criminal statute, and had not
been treated and tried as a juvenile delinquent. The reason for having
treated O'N as a juvenile delinquent even though he had been tried in a
regular criminal court before a justice of the peace was as follows: It
was shown that in the district of Rainy River, where O'N committed his
offense and was tried, there was no juvenile court and detention home
for delinquent children. That district was sparsely populated. It was
presumed that the authorities had not established a juvenile court for
the reasons that there was a low incidence of crime, and such a court
and detention home would be so little used as to make it impractical to
have provided such special facilities for the treatment of children.
The decision was that the alien would have been treated and tried, not
as an adult criminal but as a juvenile offender in a state of
delinquency, had the proper facilities existed.
The instant case is distinguishable from the O'N case. It is
presumed that the city of Montreal, of all places in Canada, has
established juvenile courts in which appellant would have been tried if
the court had felt that he was entitled to such treatment. O'N was 15
1/2 years old at the time he was sentenced, whereas appellant was 18
years old. In spite of counsel's claim, appellant was not entitled to
consideration as a juvenile delinquent.
Counsel argues that the crime committed by appellant was not a crime
involving moral turpitude. Larceny and theft, whether petty or grand
are always held to be crimes involving moral turpitude. The leading
case on the subject of theft in Canada is Matter of T , 56156/249 (Jan.
27, 1944) by this Board; reversed February 24, 1944, by the Attorney
General which is referred to in the opinion of the Assistant
Commissioner in the instant case.
There was a dissenting opinion in the T case based on the fact that
the sections of the Canadian criminal code defining theft (sec. 347) and
providing the penalty for theft (sec. 386) make no distinction between a
permanent and a temporary taking, as did the common law and the theft
statute in this country, that these sections of the code have,
therefore, abandoned the true common law concept of larceny (which does
not include a temporary taking), and that the Canadian statute, then
covers crimes which do as well as those which do not involve moral
turpitude. The Attorney General sustained the dissent and held that it
is permissible to go beyond the indictment and consider such facts as
may appear from the record of conviction to determine whether or not the
offense is one which, under our law, involves moral turpitude. The
conclusion to be drawn from that particular controversy is that theft
under the Canadian law involves moral turpitude if the taking was
permanent. When we are dealing with a conviction under the Canadian
theft statute, then, we must go behind the record for the purpose of
discovering whether or not the taking was a permanent one -- and for
that purpose and to that extent only. /*/
A signal distinction between the T case and the instant case is that
T never pleaded guilty. He maintained his own innocence at all times,
stating that his companion took the motorcycle coil, the stolen article
in controversy, but that he, T , was convicted of theft in view of the
fact that he was one year older than the other boy. T received a
suspended sentence. N , on the other hand, pleaded guilty.
It is clear that the "taking' by N was a permanent taking. The fact
that he sold these goods for a substantial sum of money is consonant
only with an intent permanently to deprive the rightful owner of the
property.
The act of selling the property would be incongruous with a temporary
taking. The T case was followed in Matter of C , 56158/190 (Jan. 13,
1945; Matter of L , 6236906 (June 3, 1946); Matter of S , 55995/373
(Nov. 29, 1946); Matter of B , 56175/712 (Mar. 13, 1946); Matter of C
, 56156/283 (Sept. 9, 1944); Matter of G , 6202052 (Aug. 4, 1947). In
all these cases it was held by this Board that where the facts disclosed
a permanent taking theft and larceny under the Canadian statutes were
offenses involving moral turpitude.
The appellant having been found guilty in a Canadian court of a crime
involving moral turpitude is inadmissible to the United States for
permanent residence. This is not a case in which we will exercise
administrative discretion to grant temporary admission to an otherwise
inadmissible alien under the ninth proviso to section 3 of the 1917 act.
Order: The application is denied and the appeal is dismissed.
(*) Editor's note. -- As to the ruling in Matter of T , 56156/249,
February 24, 1944, mentioned above, the recent decision (unreported) of
the B.I.A.; May 19, 1950, Matter of M , A-7427610, discussed a violation
of section 355(1) of the Canadian criminal code reading as follows:
"Every one commits theft who, having received any money or valuable
security or other thing whatsoever, on terms requiring him to account
for or pay the same, or the proceeds thereof, or any part of such
proceeds, to any other person, though not requiring him to deliver over
in specie the identical money, valuable security or other thing
received, fraudulently omits to account for or pay the same or any part
thereof, or to account for or pay such proceeds or any part thereof,
which he was required to account for or pay as aforesaid.'
After stating this had been held to be an offense involving moral
turpitude (Matter of F , 56175/113, B.I.A. Mar. 22, 1945), the Board
said: "However, if the crime as defined by statute necessarily involves
moral turpitude, no evidence is competent to show that moral turpitude
was not involved (U.S. ex rel. Robinson v. Day, 51 F.(2d) 1022). The
statute in this case is akin in its basic elements to the crime of
embezzlement as we know it in the United States, and clearly is an
offense involving moral turpitude.
"Counsel in argument to us made reference to the decision of the
Attorney General in the Matter of T , 2, I. & N. Dec. 22. This involved
a determination of whether theft as defined by section 347 of the
Canadian criminal code involved moral turpitude. Theft as there defined
differs from the crime of theft or larceny in the United States, in that
under section 347 of the Canadian law one is guilty of theft if he
deprives a person temporarily of his property as well as if he deprives
one permanently of his property. The ruling in the T case was to the
effect that section 347 encompasses larceny as we know it in the United
States as well as civil trespass, which is not a crime in the United
States. It being unnecessary to prove whether the taking was permanent
or temporary, convictions under this section in Canada failed to reveal
whether the taking was temporary or permanent. The ruling of the
Attorney General went only so far as to permit immigration officers to
make independent inquiries to determine whether the conviction was for
an offense which under our law would involve moral turpitude. This has
been construed to mean an independent inquiry to determine whether the
taking involved was permanent as distinguished from temporary. We are
not confronted with a similar dilemma in reference to section 355 of the
Canadian criminal code and, therefore, we find as to this offense that
the ruling in the Matter of T , supra, has no application. Accordingly,
it is necessary for us to dismiss the appeal.'
The following Orders in Council and Proclamations have been issued
under section 2(a) of the Juvenile Delinquents Act:
1. Proclamation dated the 7th day of February, 1922, raising the age
limit of juveniles in British Columbia to eighteen.
2. P.C. 2409 dated the 7th day of December, 1929, and Proclamation
dated the 12th day of March, 1930, raising the age limit for girls in
Alberta to eighteen.
3. P.C. 1200 dated the 9th day of March, 1935, and Proclamation dated
the 9th day of May, 1935, raising the age limit for boys and girls in
Alberta to eighteen.
4. P.C. 9999 dated the 28th day of November, 1942, and Proclamation
dated the 3d day of November, 1942, raising the age limit for juveniles
in Quebec to eighteen.
Citizenship -- Acquisition as a native of the Virgin Islands, born of alien parents there before its acquisition by the United States, and who was residing in the United States on June 28, 1932 -- Section 5 of the act of June 28, 1932, which added subdivision (d) to section 1 of the act of February 25, 1927 -- Meaning of phrase "who are not citizens or subjects of any foreign country' -- Effect of marriage to alien in 1931 (see 3, I. & N. Dec. 262).
1. A child born in the Virgin Islands in 1893 of a Spanish national father, who left the Virgin Islands in 1910 for Puerto Rico and stayed there until 1911 when she came to continental United States, who remained in continental United States since 1911, acquired United States nationality under the provisions of section 5 of the act of June 28, 1932, which added subdivision (d) to section 1 of the act of February 25, 1927.
2. The phrase "who are not citizens or subjects of any foreign
country' in subdivision (d), supra, means foreign citizenship preserved
or acquired by affirmative act of the person involved, and does not
refer to the subject's acquisition of Spanish nationality through her
father at birth. Her marriage to a Spanish national in 1931 is not an
affirmative act as to foreign nationality, such as would affect her
acquisition of United States nationality status under subdivision (d),
supra.
Discussion: The above-named subject has requested a determination of
her citizenship status.
Subject has submitted her baptismal certificate, showing that one S A
M , daughter of A M and O B (maiden name), was born in St. Thomas, V.
I., on February 9, 1893, and baptised in Sts. Peter and Paul's Church,
St. Thomas, V.I., on April 2, 1893. According to the subject's
testimony, her father was a native and citizen of Spain who, so far as
she knew, remained a Spanish subject until his death. She was positive
that he had not become a citizen or subject of Denmark. She believed
that her mother had been born at Copenhagen, Denmark, and had been a
Danish citizen. She was quite sure that they had been married. Both
parents died about 1900. E D , a sister of the subject, gave similar
testimony concerning the parents but expressed no opinion concerning her
father's citizenship, although she stated that he was a native of Spain.
The subject left the Virgin Islands about 1910 for Puerto Rico,
remaining there until approximately September 1911, when she came to the
United States. She has remained continuously in the United States since
1911. On September 5, 1931, she was married at New York, N.Y., to J L ,
a native and citizen of Spain. The subject never made formal
application to obtain or retain the nationality of any country.
Other than the testimony of the subject and her sister, there is no
evidence as to the marital condition and nationality status of their
parents. From their testimony it appears that their father was a native
and citizen of Spain who married a native of Denmark.
Article 22 of the Spanish Civil Code of 1889 provided that a married
woman would share the condition of her husband. Article 17 provided
that the children of a Spanish father or Spanish mother, although born
outside Spain, would be Spaniards (Flournoy and Hudson, Nationality
Laws, 1929).
As an enclosure to despatch dated August 1, 1906, the American consul
at St. Thomas, V.I., submitted a statement from the Government Secretary
of the then Danish West Indies, in which the following appeared:
The birthright as Danish native is acquired:
(a) By every legitimate child whose father is a Danish native,
whether the child is born in Denmark (including the Danish West
Indies) or abroad. * * *
(b) By the children of foreigners born in Denmark (including
the Danish West Indies), provided that these children from the
time of their birth till they have completed their nineteenth year
have been domiciled in Denmark (including the Danish West Indies),
* * *.
The birthright as Danish native is forfeited:
(b) By a native woman who married a foreigner. (H. Doc. No.
326, 59th Cong., 2d sess.)
From the foregoing it appears that the subject acquired Spanish
nationality at birth through her father and did not acquire Danish
nationality under Danish law, for the reason that her father was not a
Danish native. The subject left the Virgin Islands in 1910, when she
was 17 years of age. She could not, therefore, have acquired Danish
nationality through Danish domicile until completion of her nineteenth
year.
In the case of a child, who would have acquired Danish nationality by
reason of domicile for 19 years in the Virgin Islands, except for the
intervening acquisition of the Virgin Islands by the United States, it
was determined that such child could be regarded as having been a Danish
national for the purposes of the acts of Congress relating to natives of
the Virgin Islands (File No. 23/102598, L M S , April 14, 1944; also
May 21, 1945; File No. 5/256, L G , June 21, 1944). This rule cannot
be applied in the instant case because the subject left the Virgin
Islands before she was 20 years of age and attained the age of 23 years
before Denmark relinquished sovereignty over the Virgin Islands.
Accordingly, the subject could not have acquired anything in the way of
Danish nationality by reason of birth or domicile in Danish territory.
Two statutes of the United States were enacted by Congress for the
purpose of defining the political status of natives and former Danish
citizens, residents of the Virgin Islands. Since the subject never
acquired Danish nationality, the provisions relating to former Danish
citizens have no application to her case. The act of February 25, 1927,
with reference to natives of the Virgin Islands, required residence in
the Virgin Islands either on January 17, 1917, or on February 25, 1927.
Since the subject did not reside in the Virgin Islands on or after
January 17, 1917, this statute has no application to her. The act of
June 28, 1932, however, made provision for acquisition of United States
citizenship by --
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.
Since the subject is a native of the Virgin Islands and has resided
in the United States continuously since 1911, the sole question
presented under the latter statute is whether she comes within the
purview of the phrase relating to persons "who are not citizens or
subjects of any foreign country.'
In an opinion dated October 15, 1936, 39 Op.Atty.Gen. 525, relating
to the citizenship status of natives and residents of the Virgin
Islands, the Attorney General said:
It is authoritatively stated to be "a universally recognized
customary rule of the law of nations that the inhabitants of
subjugated as well as ceded territory lose their nationality and
acquire that (but not necessarily full citizenship) of the state
which annexes the territory,' subject only to any option expressly
given concerning retention of former nationality.
Concerning persons, who were absent from the territory at the time of
cession but were within other territory of the annexing nation, it was
stated that they undoubtedly came within the rule; that submission to
the new sovereign would be indicated equally by entry into other
territory of the annexing state as by continued residence in the ceded
territory. It was concluded by the Attorney General that there were
excepted from the grant of United States citizenship "all persons who
preserved their Danish nationality through authorized declaration of
intention or other effective means recognized in international law and
all persons who have acquired the nationality of any other foreign
country.' In the case of L M S , File No. 23/102598, April 14, 1944, the
Acting General Counsel pointed out that, although the Attorney General's
opinion dealt primarily with the status of former Danish citizens, that
part of the opinion concerning the phrase "who are not citizens or
subjects of any foreign country' must mean foreign citizenship preserved
or acquired by affirmative act on the part of the person rather than
received through the citizenship of a parent (likewise in opinion of May
21, 1945).
From the available evidence it appears that the subject, who was a
resident of the United States on January 17, 1917, acquired United
States nationality when the Virgin Islands were ceded to the United
States. Thereafter she did nothing to acquire the nationality of a
foreign country by affirmative act, unless her marriage on September 5,
1931, can be so regarded.
Under the terms of the acts of September 22, 1922, and March 3, 1931,
an American woman did not lose her nationality through marriage to an
alien. It was the evident intention of Congress to make the citizenship
of married women independent of their husbands and to give the a
separate nationality. Under the provisions of the acts mentioned,
marriage has not been regarded as a positive, affirmative act which
would affect a woman's status as a national of the United States (see
Hackworth, Digest of International Law; Volume III, pages 257-259;
Matter of W , C-3818328, Feb. 20, 1948). Consequently, in determining
the status of the subject under the nationality laws of the United
States, the fact that she was married on September 5, 1931, should not
be regarded as an affirmative act affecting her nationality status.
Thus the case of the subject resolves itself into that of a native of
the Virgin Islands who was residing in the United States on June 28,
1932, and who had done nothing affirmatively to preserve or acquire a
foreign citizenship. In the light of the decision in the case of L M S
, supra, she must be deemed to have acquired United States citizenship
under the provisions of the act of June 28, 1932.
It is ordered, that, from the evidence presented, the subject be
deemed a citizen of the United States. She should be so informed.
Discretionary relief -- Section 19 of the Immigration Act of 1917, as amended -- Evidentiary basis.
Discretionary relief under section 19 of the Immigration Act of 1917, as amended, may be denied although the alien has not been apprised of all the material considered as a basis for declining to favorably exercise this discretionary power.
CHARGE:
Warrant: Act of 1924 -- No immigration visa.
Discussion: This Service on September 27, 1947, entered an order
directing that the respondent be deported to Canada on the charge stated
in the warrant of arrest. On November 28, 1947, the Board of
Immigration Appeals directed that the hearing be reopened for
introduction of evidence bearing on allegations to the effect that the
respondent is or was a member of or affiliated with the Communist Party.
A reopened hearing was held, as directed, on June 3, 1949.
The respondent is a 36-year-old female, native and citizen of Canada,
who last entered the United States on October 5, 1933, at Boston, Mass.,
by falsely claiming United States citizenship. Deportability is not
contested. Because of marriage to a citizen of the United States, the
respondent has requested that her deportation be suspended under the
provisions of section 19(c) of the Immigration Act of February 5, 1917,
as amended.
The issue, therefore, is whether or not the case justifies grant of
the request made. The Presiding Inspector has concluded that the
relief sought should be denied for the reason that the record of
the hearing establishes that the respondent is a member and former
secretary of the International Workers Order, an organization
designated by the Attorney General as subsersive and under
Communist domination.
Upon examination of the file covering the alien, which contains not
only the record of hearing but other evidence concerning the alien's
activities, we are satisfied that as a matter of discretion the
recommendation of the Presiding Inspector should be followed and the
alien deported. The power of suspending deportation is a discretionary
one (U.S. ex rel. Weddeke v. Watkins, 166 F.(2d) 369 (C.A. 2), cert.
denied 68 S.Ct. 904 (1948); U.S. ex rel Von Kleczkowski et al. v.
Watkins, 71 F.Supp. 429 (D.C., S.D.N.Y., 1947)), and not a matter of
right. Since relief from deportation is not a matter of right but of
discretion, it is quite apparent that any evidence, whether or not of
record, officially touching upon the question of qualification for the
benefit sought may be considered. The evidence in the file (some of it
confidential in nature) establishes to our satisfaction that the alien's
continued presence in the United States would be prejudicial to the
interests of this country. Obviously, therefore, the request made by
this deportable alien must be denied.
Recommendation: It is recommended that the alien be deported to
Canada at Government expense on the charge stated in the warrant of
arrest.
It is further recommended, That the alien's application for
suspension of deportation be denied.
So ordered.
Discussion: On August 22, 1949, the Acting Assistant Commissioner
found that the respondent was subject to deportation and ordered that
she be deported. He denied the respondent's application for suspension
of deportation. The record is before us on appeal.
There is no question regarding the deportability of the respondent on
the above-stated documentary ground. The issue is whether her
application for suspension of deportation was properly denied.
In denying the respondent's application for suspension of deportation
the Acting Assistant Commissioner made the following statement:
Upon examination of the file covering the alien, which contains
not only the record of hearing but other evidence concerning the
alien's activities, we are satisfied that as a matter of
discretion the recommedation of the Presiding Inspector should be
followed and the alien deported. The power of suspending
deportation is a discretionary one (U.S. ex rel. Weddcke v.
Watkins, 166 F.(2d) 369 (C.A. 2), cert, denied 68 S. Ct. 904
(1948); U.S. ex rel. Von Kleczkowski et al. v. Watkins, 71
F.Supp. 429 (D.C., S.D.N.Y., 1947), and not a matter of right.
Since relief from deportation is not a matter of right but of
discretion, it is quite apparent that any evidence, whether or not
of record, officially touching upon the question of qualification
for the benefit sought may be considered. The evidence in the
file (some of it confidential in nature) establishes to our
satisfaction that the alien's continued presence in the United
States would be prejudicial to the interests of this country.
Obviously, therefore, the request made by this deportable alien
must be denied.
We agree with the Acting Assistant Commissioner that the grant of
denial of suspension of deportation is discretionary (Immigration Act of
February 5, 1917, as amended, section 19(c), 8 U.S.C.A., section 155(c);
U.S. ex rel. Weddeke v. Watkins, 166 F.(2d) 369; U.S. ex rel. Von
Kleczkowski v. Watkins, 71 F.Supp. 429). However, we do not agree with
the Acting Assistant Commissioner in his assertion that "any evidence,
whether or not of record, officially touching upon the question of
qualification for the benefit sought may be considered.' And we find
that it was an error of law for the Acting Assistant Commissioner to
base his conclusion upon "not only the record of hearing but other
evidence concerning the alien's activities.'
An alien who is charged with being subject to deportation is accorded
a hearing before an immigrant inspector, known as the Presiding
Inspector, to determine, whether he is subject to deportation as charged
(8 C.F.R. 150.6(a), (b)). The Presiding Inspector is required to
apprise the alien, inter alia, of his right to apply for suspension of
deportation, if found deportable (8 C.F.R. 150.6(c)). At any time
during the hearing the alien may give notice that he wishes to apply for
such suspension (8 C.F.R. 156.6(g)). At the conclusion of the hearing
the Presiding Inspector prepares a memorandum setting forth a summary of
the evidence, his proposed findings of fact and conclusions of law and a
proposed order respecting deportation (8 C.F. R. 150.7(a)(c)). If the
alien has applied for suspension of deportation, the Presiding Inspector
includes in his memorandum a discussion of the evidence relating to the
alien's eligibility for such relief and states in numbered paragraphs
his proposed findings of fact and conclusions of law with respect to
such eligibility (8 C.F.R. 150.7(b)).
The foregoing regulations have the force and effect of law and are
binding upon the Immigration and Naturalization Service (Bilokumsky v.
Tod, 263 U.S. 149, 155, 68 L.ed. 221, 224, 44 S.Ct. 54; Bridges v.
Wixon 326 U.S. 135, 153, 89 L.ed. 2103, 2114, 65 S.Ct. 1443; Matter of
J , A-4691768, Sept. 26, 1949). They impose a duty upon the Government
to grant a fair hearing to an alien on the issue of his deportability
(The Japanese Immigrant Case, 189 U.S. 86, 100-101, 47 L.ed. 721, 726;
U.S. ex rel. Vajtauer v. Commissioner, 273 U.S. 103, 106, 71 L.ed. 560,
563, 47 S.Ct. 302; Whitfield v. Hanges 222 F. 745, 749). They likewise
impose a duty to accord a fair hearing to an alien on the issue of
discretionary relief. As stated by the Court in U.S. ex rel. Salvetti
v. Reimer, 103 F.2d 777 at page 779:
We may assume without the necessity of decision, that the
requirements of a fair hearing must be observed by the Board
during its consideration of the alien's request (for voluntary
departure) and that a decision based on charges which they had no
opportunity to refute would be unfair.
In U.S. ex rel. Weddeke v. Watkins, 166 F.(2d) 369 (cited by the
Acting Assistant Commissioner for the proposition that the suspension of
deportation is discretionary), the court stated at page 371:
Since the regulations of the Attorney General have set up a
quasi-judicial procedure for the determination of issues bearing
on the propriety of exercising his power to suspend deportation
under 8 U.S.C.A., section 155(c), we assume that the alien is
entitled to procedural due process in the conduct of such hearing,
and we assume further that, if the Immigration Service issues a
warrant of deportation without according the alien such procedural
due process, the warrant can be challenged on this ground in
habeas corpus proceedings.
Finally, in U.S. ex rel. Bauer v. Shaughnessy Civ. 50-217, U.S.
District Court, Southern District of New York, July 28, 1949, the Court
stated:
The rules and regulations promulgated by the Attorney General
provide for a "hearing' of applications for discretionary relief
only before the Presiding Inspector, 8 Code of Fed. Reg. Section
150.6(g), and at such hearing the alien has the right through
counsel to introduce evidence, to cross-examine the witness
appearing against him and to explain or rebut the evidence which
they have given 8 Code of Fed. Reg. 150.6(d) * * * In considering
evidence on which the Presiding Inspector did not pass and which
the relator was not given any opportunity to rebut, in violation
of the regulation of the Attorney General, the Board of
Immigration Appeals deprived the relator of a fair hearing on his
application for discretionary relief.
We are aware of the decision of the Court in U.S. ex rel. Von
Kleczkowski v. Watkins, 71 F.Supp. 429. That case contained a report of
military authorities, classified in part "secret' and in part "top
secret' and this report was not disclosed to the alien and was not a
part of the deportation proceeding. Yet the court sustained an order
denying discretionary relief, although consideration was given to the
report by the Attorney General. We believe, however, that the Von
Kleczkowski case may be distinguished on the following ground, mentioned
by the court at page 436: "* * * in the case at bar both the examining
inspector and the Board of Immigration Appeals had recommended the
denial of discretionary relief without recourse to the Tilly report. On
would have to be unduly naive to suppose that, without that report, the
denial of discretionary relief was not supported by the record.' /1/
In short, we hold that, while the grant or denial of suspension of
deportation is discretionary, the exercise of that discretion must be
based upon the evidence of record. We shall, therefore, direct that
this case be remanded to the Immigration and Naturalization Service for
a decision by it on the evidence of record and the evidence of record
alone. If the Immigration and Naturalization Service should desire to
reopen the proceedings for the reception of further evidence bearing on
the issue of the respondent's qualifications for discretionary relief,
it may, of course do so.
Order: It is ordered that this case be remanded to the Immigration
and Naturalization Service for the purpose set forth above, and for such
other purposes as may be deemed appropriate.
In accordance with section 90.12, title 8, Code of Federal
Regulations, the Board certifies its decision and order to the Attorney
General for review.
(1) In the Von Kleczkowski case the court also observed: "In the
light of the considerations that there is grave doubt that any power of
review exists with respect to the grant or denial of "discretionary
relief,' that the relators are enemy aliens, that the Attorney General
acted in time of war, that the withheld documents were classified by the
military authorities as secret and top secret and finally that it is
highly likely that, regardless of the Tilly report, the same finding
would have been made, I conclude that the proceedings were not infected
with unfairness by the Attorney General's recourse to the undisclosed
report.' We do not believe that these comments by the court derogate
from the requirement insisted upon by the Circuit Court in the cases of
Salvetti v. Reimer and U.S. ex rel. Weddeke v. Watkins (cited above)
that procedural due process must be accorded to an alien on his
application for discretionary relief.
(2) Editor's note. -- See court action in Alexiou v. McGrath, 101 F.
Supp. 421, on Nov. 19, 1951. (Protective appeal filed pending
Departmental decision re appeal action.)
The decision and order of the Board of Immigration Appeals dated
November 8, 1949, are hereby approved.
The approval of the Acting Attorney General dated November 16, 1949,
of the decision and order of the Board of Immigration Appeals dated
November 8, 1949, is hereby withdrawn. The decision and order of the
Board of Immigration Appeals dated November 8, 1949, is hereby
disapproved. The order of the Acting Assistant Commissioner of the
Immigration and Naturalization Service dated August 22, 1949, is hereby
approved. /*/
(*) Editor's note. -- See court action in Alexiou v. McGrath, 101 F.
Supp. 421, on Nov. 19, 1951. (Protective appeal filed pending
Departmental decision re appeal action.)
"Nationality status', for quota purposes -- Place of nativity -- Section 12, Immigration Act of 1924 -- Alien born in territory which was subsequently ceded to another country -- A "quota' nationality change follows Presidential Proclamation as to quota changes rather than mere cession of such territory.
Where an alien was born in the Dodecanese Islands (Europe) and was a native of Italy for quota-nationality purposes when such Islands were ceded by Italy to Greece (by treaty of peace signed in November 1947), he was still chargeable to the quota of Italy even after such transfer of territory, until such quota nationality was revised and a Presidential proclamation was issued covering such change (Presidential Proclamation No. 2846 of July 27, 1949 appeared in 14 F.R. 4707, of July 26, 1949).
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 -- Not of nationality specified in visa of immigration
visa.
Discussion: The subject hereof, a single male, was born December 15,
1915, at Kalymos, Dodecanese Islands, Agean Archipelago. He arrived at
the port of New York City on March 7, 1949, as a passenger on the
steamship Queen Elizabeth and applied for admission for permanent
residence. At the time of arrival he presented a valid Greek passport
and a valid nonpreference quota immigration visa issued under the
Italian quota. This visa indicated that the appellant is of Greek
nationality and is classified as an Italian nonpreference immigrant.
The subject was held for action by a Board of Special Inquiry and on
March 9, 1949, such Board excluded the alien on the ground that he was
an immigrant not of the nationality specified in the visa of the
immigration visa. The alien thereupon, appealed that decision.
The Board of Special Inquiry evidently predicated its excluding
decision upon the fact that the Dodecanese Islands were returned to
Greece by Italy as the result of a treaty of peace signed in November of
the year 1947 by all the allied powers, Greece and Italy. In fact, the
members of the Board of Special Inquiry did state that although the
subject was "born Italian,' the territory in which he was born was ceded
to Greece by reason of a treaty which took place over a year ago and
under section 12 of the Immigration Act of 1924, such transfer of
territory would have the effect of placing him under the Greek quota
rather than under the Italian quota at the present time.
This matter of proper quota determination in the case of the subject
was thereupon referred to the Department of State and the Department has
declared that a person such as the subject who was born in the
Dodecanese Islands, would under present provisions, be chargeable to the
quota for Italy. In fact, In the matter of D G. B , file A-7093262, the
Department of State declared that a person born in the Dodecanese
Islands, at this time and in accordance with section 12 of the
Immigration Act of 1924 is chargeable to the quota established for
Italy. As shown, the subject alien was in possession of a valid quota
visa, chargeable to the quota for Italy and such was a visa properly
issued by the American representative abroad. Therefore, the alien's
appeal will be sustained.
Recommendation: It is recommended that the appeal be sustained and
the alien admitted for permanent residence.
So ordered.
Suspension of Deportation -- Section 19 of the Immigration Act of 1917, as amended -- "Serious economic detriment'.
Whether the deportation of the alien mother would result in a serious economic detriment to the minor (about 2 years old) United States born child, living here with the mother and the legally resident alien father, within the meaning of section 19(c) of the Immigration Act of 1917, as amended, is a question determined from all the relevant factors and circumstances involved, and the child's need of an unbroken home with joint parental care may be a consideration (among others) in reaching such a determination.
CHARGE:
Warrant: Act of 1924 -- Remained longer, visitor.
Discussion as to deportability: The record relates to a 36-year-old
married female, a native and citizen of Greece, who entered the United
States at Baltimore, Md., on February 20, 1946, as a visitor for 6
months. That entry has been verified. The alien admits that this was
her only entry into this country and that at the time of such entry it
was her intention to return to Greece at the expiration of 6 months.
She further testified that she was granted extensions of stay to July
1947, and has resided continuously in the United States since her entry
on February 20, 1946. On March 3, 1946, she was married, after which
she decided to remain permanently in the United States. She has never
been admitted to the United States for permanent residence. The alien
is, therefore, deportable under the Immigration Act of 1924.
Discussion as to eligibility for suspension of deportation: The
record shows that the alien was legally married to T P. T on
March 3, 1946. She was previously married and submitted a
certificate showing the death of her first husband on May 26,
1939. Respondent and her husband have one child born on August 23,
1947, at New York, N.Y. She testified that she had assets of
$100,000 in cash and securities and that her son is dependent upon
her and her husband for support. Her husband came to the United
States as a diplomat in 1924 and has applied for suspension of
deportation based upon his long residence in the United
States. The respondent's husband is a general partner in the firm
of Delafield & Delafield, stock brokers in which firm he has
contributed to the capital in the sum of $15,000 in cash and has
present drawing averaging $2,000 per month. It is apparent that
the alien's deportation would not result in any serious economic
detriment to her minor native-born child.
Recommendation: It is recommended that the application for
suspension of deportation be denied.
It is further recommended, That an order of deportation not be
entered at this time but that the alien be required to depart from the
United States, without expense to the Government, to any country of her
choice within 90 days after notification of decision, conditioned upon
arrangements being made with the local immigration office for
verification of departure.
So ordered.
Discussion as to deportability: This matter is before us on appeal
from a decision of the Assistant Commissioner of Immigration and
Naturalization dated August 19, 1949, wherein the subject of this
proceeding was found deportable because she remained longer than
permitted under the provisions of the act approved May 26, 1924 and the
regulations made thereunder (8 U.S.C., Secs. 214 and 215).
The evidence of record shows that the appellant was born in Greece on
January 29, 1913, and that she is a citizen of the country of her
nativity. This individual arrived at Baltimore, Md., on February 20,
1946, on S. S. Ameriki, and following her arrival, she was admitted to
this country as a nonimmigrant visitor for a period of 6 months under
the provisions of section 3, sub. 2 of the Immigration Act of 1924 (8
U.S.C.sec. 203). About a month subsequent to her arrival, she married
one T P. T who, according to his statement, came to this country during
the year of 1924 as a diplomat, and thereafter remained.
The alien applied for an extension of her temporary admission, and
such extension was granted to July 1947. A further application for an
additional extension of temporary admission was denied on July 1, 1947,
but notwithstanding such denial, the alien remained in the United
States.
A male child was born of this union on August 23, 1947.
The husband applied for suspension of deportation, and on August 19,
1949, his application therefor was granted.
Discussion as to eligibility for suspension of deportation: The
evidence of record reveals that the subject of this proceeding was
married to T P. T on March 3, 1946. A prior marriage of the appellant
was dissolved by the death of her prior spouse. Suspension of
deportation is sought by reason of alleged serious economic detriment to
the male child born in New York on August 23, 1947.
The Assistant Commissioner of Immigration and Naturalization in his
decision of August 19, 1949, points out the circumstances under which
the alien's husband came to the United States in 1924, and his
subsequent long residence, and that the said husband is a general
partner in the firm of Delafield & Delafield, stockbrokers in New York
City, in which firm he has capital investment of $15,000, and a monthly
drawing averaging $2,000. The alien has assets of some $100,000, and by
reason of the financial worth of these persons, an application of
suspension of deportation was denied in that --
"It is apparent that the alien's deportation would not result
in a serious economic detriment to her minor native-born child.'
The Assistant Commissioner of Immigration and Naturalization granted
the alien permission to depart from the United States, without expense
to the Government, to any country of her choice, within 90 days after
notification of decision. However, by reason of the preemption of the
quota for Greece, the enforced departure of the alien would in all
probability result in a long absence abroad.
Counsel in brief filed in connection with the present appeal asserts
that the decision of the Assistant Commissioner of Immigration and
Naturalization is obviously shocking and inhumane, and wholly contrary
to law, and that the conclusion that the alien's deportation would not
result in a serious economic detriment to her minor child is arbitrary,
capricious and opposed to both the letter and the spirit of the statute.
As a basis for this assertion, counsel indicates that as a matter of
ordinary common sense, no one could possibly take the position that the
loss of a 2-year-old child's mother for an indefinite period would not
be a serious detriment to the child, because no amount of nurses,
governesses or pediatricians can take the place of this or any child's
life of love and care of his mother. On the other hand, if the child
were to be taken to Europe, he would be forced to suffer the detriment
of being brought up in the foreign land without the love, care, and
guidance of his father. Counsel further contends that Mr. T would not
be in a position to accompany his wife and child to Greece, as he would
have no means of support in that country.
It is conceded that Mrs. T has cash and securities amounting to
$100,000, but counsel points out under the social welfare law of New
York, section 101, that both the father and mother of a minor child are
legally responsible for his support, and that a married woman is a joint
guardian of her child with her husband, with equal powers, rights and
duties in regard to him (New York Domestic Relations Law, sec. 81). The
latter section thus eliminates the common law preference for the father
as the child's guardian.
Counsel points out other considerations in addition to the foregoing,
and more particularly the interpretation which he feels should by placed
upon the statute that the term economic as need therein may include all
that pertains to the satisfaction of man's needs, and that the child's
greatest needs are the love and care of his mother and father in an
unbroken home.
This Board has given careful consideration to all the evidence of
record, as well as all of the representations of counsel, and to the
decision of the Assistant Commissioner of Immigration and
Naturalization, and it is our conclusion that to enforce the departure
of this appellant from the United States would in our opinion result in
a serious economic detriment to this minor United States born child,
particularly in the light of the condition of the quota for Greece, as
well as the present chaotic condition abroad, particularly in the
country of the alien's nativity. Moreover, we feel that the assertions
of counsel as hereinabove set forth more nearly accurately establish the
serious economic detriment obtaining in this case were the alien to be
deported. The evidence establishes that the alien is a person of good
moral character.
Suspension of deportation -- findings of fact: Upon the basis of all
the evidence presented, it is found:
(1) That the alien is not ineligible for naturalization in the
United States;
(2) That the alien is a person of good moral character, and has
been of such good moral character for the preceding 5 years;
(3) That deportation of the alien would result in serious
economic detriment to the minor infant son, a native born citizen
of the United States;
(4) That after diligent inquiry, no facts have been developed
which would indicate that the alien is subject to deportation
under any of the provisions of Section 19(d) of the Immigration
Act of February 5, 1917, as amended.
Suspension of deportation -- conclusion of law: Upon the basis of
the foregoing findings of fact, it is concluded:
(1) That the alien is eligible for suspension of deportation
under the provisions of section 19(c)(2) of the Immigration Act of
February 5, 1917, as amended;
Order: It is ordered that deportation of the alien be suspended
under the provisions of section 19(c), sub. (2) of the Immigration Act
of February 5, 1917, as amended.
It is further ordered, That the order entered by the Assistant
Commission of Immigration and Naturalization on August 19, 1949, be and
the same is hereby withdrawn.
It is further ordered, That if during the session of the Congress at
which this case is reported, or prior to the close of the session of the
Congress next following the session at which this case is reported, the
Congress passes a concurrent resolution, stating in substance that it
favors the suspension of such deportation, the proceeding be canceled
upon the payment of the required fee and that the alien be charged to
the quota for Greece.
Editor's note. -- In the Matter of S , unreported A-6245223, B.I.A.,
August 9, 1949, a widow of an American citizen, with her three
native-born minor children had been in Greece from 1935 until they all
returned in 1946. She had no assets nor income but a roomer by the name
of P contributes to support this family because he felt morally
obligated to do so. The Board said,
"The Central Office recommended deportation first, for the reason
that P is not legally obligated to support respondent, and she has no
other income, and second, because "it cannot be perceived how
deportation of the respondent would result in a serious economic
detriment to her citizen children.' This Board has considered the
subject of economic detriment to their families resulting from the
deportation of alien women in many cases (Matter of R , 4848889, July 7,
1946; Matter of C S , 2354295, July 8, 1946; Matter of R , 5585374,
Aug. 7, 1946; Matter of S , 4341646, July 31, 1946). We have held in
such cases that economic detriment does result to a citizen child,
because he is deprived of his mother's care and half the maintenance for
the home when his mother must be supported abroad. A minor child needs
the care and attention of an older person, and in the absence of its
mother, economic detriment results from the expense of paying someone
else to operate the home.
"The Assistant Commissioner's opinion found that satisfactory
evidence is of record to show that respondent has been a person of good
moral character during the preceding 5 years, including the period of
her residence abroad, and granted her voluntary departure. It is our
opinion that she is entitled to suspension of deportation, because she
has been a person of good moral character during the required period,
and deportation would result in economic detriment to her three United
States citizen children.'
Preexamination -- Application under 8 C.F.R. 142 -- Jamaica, British West Indies as an island "adjacent' to the United States -- "Exceptionally meritorious' case -- Jurisdiction of Board of Immigration Appeals to direct preexamination (on appeal) prior to the institution of warrant proceedings.
Where no warrant proceedings have been instituted, and an application
for preexamination under the provisions of 8 C.F.R. 142 has been denied
by the Central Office, the Board of Immigration Appeals does not have
jurisdiction on appeal, since the provisions of 8 C.F.R. 90.3 should be
read in conjunction with those of 8 C.F.R. 142.2.
Discussion: This record relates to a single male native of Jamaica,
subject of Great Britain, 32 years of age, who last entered the United
States on June 4, 1943, at the port of New Orleans, La. At that time he
was admitted to March 31, 1944, as an agricultural worker under the act
of April 29, 1943.
The attorneys for the alien are requesting preexamination under the
provisions of 8 C.F.R. Part 142. Title 8 C.F.R. 142.1 provides, in
part, that certain aliens whose cases are exceptionally meritorious or
who, under other conditions stated, are nevertheless not citizens of
islands adjacent to the United States may apply for preexamination.
It is alleged that Jamaica is not an island adjacent to the United
States and, that if it is adjacent to this country, the case is
nevertheless an exceptionally meritorious one and that preexamination
should be authorized.
When the term "adjacent' was used in the preexamination regulations
it was intended by this Service to refer to the islands which are near
the United States and to which aliens may proceed without great
difficulty in order to obtain an immigration visa. It was not intended
that people who could go to such islands without any difficulty would be
granted the preexamination privilege unless their cases were
exceptionally meritorious. The fact that a dictionary definition of the
term adjacent, as quoted by one of the attorneys for this alien, would
seem to indicate that Jamaica may not be adjacent is not governing. We
believe Jamaica is an adjacent island within the meaning of the
regulations.
We must, therefore, determine whether the case is an exceptionally
meritorious one for, if it is not, preexamination may not be authorized.
In this connection it is noted that the subject is alleged to have
served the economic program of the United States while he was working as
an agricultural laborer, is of good moral character, has no ties in
Jamaica but that his family are long-time residents of the United
States. It is alleged that his father and step-mother are naturalized
citizens of this country and that his step-sister is a nurse and a
native-born citizen. It is further alleged that his father has
extensive property in this country and that the subject will not become
a public charge. In the subject's application for preexamination he
notes that he has assets of $125 in the United States and $3,000 in a
bank in Jamaica.
We do not believe that these circumstances render the case
exceptionally meritorious. The case presents no unusual or
extraordinary factors. There is no allegation that anybody is dependent
upon him for support or that his absence while awaiting a visa in
Jamaica would render a hardship to anybody in this country.
Recommendation: It is recommended that the application for
pre-examination be denied.
So ordered.
Discussion: In this case the attorneys have submitted an appeal to
the Board and in conjunction therewith request oral argument.
It appears that on August 10, 1949, the Assistant Commissioner denied
the petition for preexamination which has been submitted herein. It is
indicated on the face of the Service's memorandum that no appeal lies to
the Board. It appears that Mr. N is a native of Jamaica, subject of
Great Britain, and that preexamination was petitioned for under part
142, title 8 C.F.R.
This issue is joined on the petition of whether there is jurisdiction
in this Board to consider the appeal submitted by the attorneys. We
will grant oral argument solely on the question of jurisdiction.
Order: It is ordered that oral argument be granted on the question
of jurisdiction in this case.
Discussion: This is an appeal from an order entered by the Assistant
Commissioner on August 10, 1949, wherein the respondent's application
for preexamination was denied. Counsel on appeal urges that this Board
has jurisdiction to direct preexamination prior to the institution of
warrant proceedings. The issue before us, therefore, is solely one of
jurisdiction.
The record relates to a native of Jamaica, subject of Great Britain,
male, 32 years of age, who last entered the United States on June 4,
1943, at the port of New Orleans, La. He was admitted to March 31,
1944, as an agricultural worker under the act of April 29, 1943. He
petitions for preexamination under part 142 of title 8 C.F.R.
Upon careful consideration of section 90.3 of title 8 C.F.R., we are
of the opinion that the language there used was intended to cover an
appeal in a preexamination case from an adverse ruling by a board of
special inquiry after the alien has gone through the deportation
process. In other words, section 90.3 should be read in conjunction
with section 142.2. Obviously, under the latter section we can grant
any relief appropriate in deportation cases. Since this is not a
deportation case, we conclude that this Board does not have
jurisdiction.
Order: It is directed that the appeal be and the same is hereby
dismissed.
Citizenship -- Acquisition by birth in the United States -- Acquisition after birth of foreign nationality (Lithuania) -- Expatriation -- Oath of allegiance to Lithuania in connection with Lithuanian Army Service in 1934-35 -- Section 2 of act of March 2, 1907 -- Expatriative effect if such oath "involuntary' -- Evidence of such "involuntary' conduct.
1. A person, born in the United States of Lithuanian parents on June 4, 1913, who returned to Lithuania with his parents in 1914 and remained there until 1944, acquired United States citizenship at birth and subsequently acquired Lithuanian citizenship under Lithuanian law.
2. Pursuant to a draft law in effect in lithuania in 1934, military
service was compulsory and universal in character, so that where the
above person, deemed to be a Lithuanian citizen and liable to military
service by the Lithuanian Government, was conscripted into the
Lithuanian Army and thereafter (when over 21) took the required oath of
allegiance to Lithuania (served 1934-35), he is not held to have bevome
expatriated under the provisions of section 2 of the act of March 2,
1907 where the evidence indicated this oath of allegiance was not taken
voluntarily. (See 3, I. & N. Dec. 586.)
This case is before us on appeal from a decision of the Acting
Assistant Commissioner dated November 4, 1948, denying the visa petition
on the ground that petitioner had expatriated himself by taking an oath
of allegiance to Lithuania in 1934, in connection with his performance
of military service in that country. The applicant, claiming to be a
citizen of the United States, filed petition on August 7, 1947, in
behalf of his parents with a view to their being accorded a preference
quota status pursuant to section 6(a)(1) of the Immigration Act of 1924
(8 U.S.C. 206). American citizenship of the applicant is essential to a
grant of such application.
Petitioner was born in Waterbury, Conn., on June 4, 1913, of
Lithuanian parents; at that time, his father had lived in the United
States for about 9 years, while his mother had been here approximately 2
years. In 1914 petitioner returned to Lithuania with his parents, where
he remained until 1944. On November 23, 1944, he entered Sweden, having
escaped from Lithuania in a refugee fishing boat. On March 28, 1946,
petitioner executed an application for registration as an American
citizen at Stockholm, Sweden, in which he stated that he had entered the
Lithuanian Army on May 1, 1934 (when he was still 20 years old) and
served until November 1, 1935; at that time, the State Department
determined that petitioner, being a minor at the time he took the oath
of allegiance, had not expatriated himself, and authorized the issuance
of a passport on February 21, 1947. Petitioner arrived at New York on
March 24, 1947, and was admitted as a United States citizen. During a
hearing on the instant petition held December 28, 1947, petitioner had
difficulty recalling the events which took place in 1934, but he stated
that he thought he was inducted upon reaching the age of 21 (the exact
month was in doubt). He further stated that he was forced to serve in
the Lithuanian Army.
According to the draft law in effect in Lithuania in 1934, military
service was compulsory and universal in character. Upon reaching the
age of 21 1/2 years, young men, who were considered Lithuanian subjects,
were liable for 18 months of active service in the army; the enrollment
of conscripts took place twice a year, on May 1 and November 1. /1/
Since petitioner was the son of Lithuanian citizen parents and returned
with them to live in Lithuania, he was considered a citizen of
Lithuania. /2/ The power to determine who were Lithuanian citizens and
liable for military service rested with the Lithuanian Government. In
1934 there was no treaty between Lithuania and the United States which
touched on this dual citizenship problem.
In view of the above feature of the Lithuanian draft law in effect in
1934, it must be assumed that petitioner was inducted either on May 1,
or November 1, of 1934; on May 1, he would have been 20 years old, for
his birthday was June 4. However, regardless of the date of
petitioner's induction, the crucial question is when did petitioner take
the oath of allegiance (for he has admitted that he did take such an
oath sometime after induction). The Lithuanian Minister has advised us
that the oath of allegiance is taken by conscripts 3 to 6 months after
their induction and that the oath is ordinarily administered to the
group as a whole while assembled on the parade ground. Regardless of
which date petitioner was inducted into the Lithuanian Army (May 1 or
November 1), petitioner was over 21 when he took the oath of allegiance.
According to the provisions of section 2 of the act of March 2, 1907,
a native-born citizen is expatriated upon taking an oath of allegiance
to a foreign state. The Supreme Court has said "that the statute was
aimed at a voluntary expatriation' (Perkins et al. v. Elg, 307 U.S. 325,
343, 1939). It has been held in several instances that force was
employed to induct conscripts into European armies, although the
conscripts were admittedly dual nationals at the time of induction or
administering the oath of allegiance. In re Gogal, 75 F.Supp. 268
(D.C., W.D. Pa., 1947); Dos Reis ex rel. Camara v. Nicolls, 161 F.(2d)
860 (C.C.A. 1, 1947); Savorgnan v. United States, 171 F.(2d) 155 (C.C.
A. 7, 1949); Doreau v. Marshall, 170 F.(2d) 721 (C.C.A. 3, 1948). See
also U.S. ex rel. Fracassi v. Karnuth, 19 F.Supp. 581 (D.C., W.D.N.Y.,
1937); Bauer v. Clark, 161 F.(2d) 397 (C.C.A. 7, 1947).
Relying upon the requirement in Lithuania to serve in the armed
forces, and the applicant's assertion that he did not serve willingly,
but did not protest because of his conviction that protest would be
futile, which assertion is not contradicted, we conclude that a finding
of expatriation is not warranted. This leads to a conclusion that his
original status of a citizen of the United States still continues
(Ceruti v. Marshall (D.C., S.D.N.Y., January 5, 1949)).
Order: It is hereby ordered that the appeal be sustained and that
the immigration visa petition filed by J S S in behalf of his parents, S
and M S , be issued.
(1) P. 454 ff., World Armaments Year-Book -- 1934, League of Nations;
League of Nations Publications, IX, 3, Disarmament.
(2) Provisional Law of January 9, 1919, as translated in Flournoy and
Hudson, Nationality Laws, 1929, edition, p. 417.
Fines -- Failure to deport alien seaman after written notification to do so -- Section 20 of the Immigration Act of 1924 -- When such "deportation' effected.
1. Where an alien seaman is ordered deported and the vessel takes him to a foreign place and he is actually landed, he is deemed "deported' even though he returns here on the same vessel, so that a fine under section 20 of the Immigration Act of 1924 has not been incurred "for failure to deport' such seaman.
2. The same conclusion follows even though such alien seaman is not
shown to have actually landed in a foreign place, where it appears he
could have done so, but elected to remain on board the vessel, instead
of going ashore.
Discussion: This is a fine proceedings instituted under section 20
of the Immigration Act of 1924 against the Lavino Shipping Co., agents
for the S. S. Evgenia Chandris, for failure to deport the alien seamen P
M and D P after being notified in writing to do so.
The S. S. Evgenia Chandris arrived at the port of Philadelphia, Pa.,
on February 22, 1949, from Koilthottam, India. An order to detain on
board at all United States ports and deport M and P was served on the
agents on February 22, 1949. The vessel sailed foreign via Norfolk,
Va., on March 2, 1949, having the two detainees on board. On April 29,
1949, the vessel again arrived at the port of Philadelphia via Algeria;
Bone, Algeria, and Gibralter, the two seamen still being on board.
Notice of liability for fine was served on the agents on May 2, 1949.
Counsel have filed protest to the imposition of fine. They contend that
there was a full compliance with the order to detain and deport, of
February 22, 1949, when the vessel sailed and touched at the foreign
ports of Algiers, Bone, and Gibralter; that the position that there has
been a violation of the immigration laws by reason of the fact that the
seamen were physically on the vessel upon arrival at a United States
port after a voyage to a foreign port, is contrary to the previous long
established practice of the Service; and that the purpose of the
statute, which is to prevent those who are not entitled to enter from
landing and remaining in this country, has been fully accomplished as
the detained seamen were never landed in this country and are not in
this country having been detained on board the vessel and deported in
accordance with orders.
The record does not show whether the alien seamen involved in this
case actually landed in a foreign port. However, there is no reason to
suppose that they could not have gone ashore in Algeria since that is
the country in which they signed on. Even assuming that they did not
land, it does not appear that a fine would lie.
We recently dealt with a somewhat similar situation in the Matter of
the S. S. Caterina Gerolimich, F-4544, July 18, 1949. In our decision
in that case we stated:
P (the alien involved) was taken to a foreign place and
actually landed. He was thus deported and merely because he
returned on the same vessel would hardly be a basis for imposing
liability. As a matter of fact, if he had been paid off, it is
clear that he could have returned as a seaman on another vessel.
He might again have been denied shore leave, but no liability
would have attached to the vessel bringing him to this country.
The same result would seem to obtain if he had been paid off the
S. S. Caterina Gerolimich and then been reemployed prior to its
return. Merely because he continued his employment on that vessel
would not, it appears, be a sufficiently pertinent feature to
distinguish it from the other situations. It is therefore found
that by returning P to Italy, the master complied with the order
to deport him within the meaning of section 20 of the Immigration
Act of 1924. Accordingly, a violation of that section has not
occurred.
It does not appear that there would have been a different holding in
the Caterina Gerolimich case if P had elected to remain aboard the
vessel, instead of going ashore. That is, he would have been considered
just as effectively deported, since the fact that he did or did not go
ashore would have been an insufficiently distinguishing fact.
The situation in the instant case being similar, it is found that the
alien seamen were deported within the meaning of section 20 of the
Immigration Act of 1924 and a violation of that section has not been
established.
Recommendation: It is recommended that fine not be imposed, the
amount involved is $2,000.
So ordered.
Citizenship -- Acquisition by birth in the United States -- Acquisition subsequent to birth of foreign nationality through naturalization abroad of father during child's minority -- Expatriation -- Failure to return to United States before twenty-third birthday on February 6, 1945 -- Section 401(a) of the Nationality Act of 1940 -- Effect where timely effort is made to return here but such return is prevented by circumstances beyond person's control and the return is delayed until a reasonable opportunity permits it -- Analogy to administrative action taken in cases coming under section 404 of the Nationality Act of 1940.
1. A person born here on February 6, 1922, of a father naturalized here on May 19, 1921 (such citizenship canceled March 20, 1925), acquired United States citizenship at birth; such person acquired Lithuanian citizenship on December 5, 1924, through the father's naturalization in Lithuania, where the family had gone to live in 1922.
2. Where such person had not expatriated herself before by her own voluntary act, and was a dual national on January 13, 1941, when section 401(a) of the Nationality Act of 1940 became effective, and such person did not return to the United States until May 27, 1946, which was after she reached her twenty-third birthday, she is deemed to have expatriated herself on her twenty-third birthday (February 6, 1945) under the provisions of section 401(a) of the above act, there being no evidence the person made any effort or showed any intention to return to the United States after reaching her majority on February 6, 1943 either before she was taken into custody by German authorities a year and 5 months later (July 1944), or at any time up to her twenty-third birthday.
3. This situation is distinguishable from one where the person makes
a timely effort to return here but such return is prevented by
circumstances beyond her control, and such person thereafter returns
here at the first opportunity; in which cases the administrative action
taken in cases under section 404 of the Nationality Act of 1940 has been
applied by analogy.
Discussion: On May 14, 1947, the Department of State submitted to
this Service a report in the case of the subject named above showing
that on April 27, 1946, the American Legation at Copenhagen, Denmark,
issued an American passport to the subject in which the name of her, E W
Z , born out of wedlock in Denmark on July 6, 1945, was included. It
was requested that a determination be made whether the applicant and her
son are considered to be American citizens, and if they are found not to
be citizens, that the passport be taken up and transmitted to the
Department of State. This report contained the following statement:
Since it is apparent that the subject had not established a
permanent residence in the United States on February 6, 1945, when
she became 23 years of age, the Department is of the opinion that
she lost at that time under the provisions of section 401(a) of
the Nationality Act of 1940, any claim which she may have had to
American citizenship and as her son was born subsequent to this
date he does not appear to have a valid claim to American
citizenship.
The subject was born in Cleveland, Ohio, on February 6, 1922. Her
father, a native of Russia, had been naturalized as a citizen of the
United States on May 19, 1921, in the Common Pleas Court, Cleveland,
Ohio, certificate number 1630002. In 1922 the family went to Lithuania
where the father was admitted to Lithuanian citizenship on December 5,
1924. On March 20, 1925, the naturalization of the subject's father as
a United States citizen was canceled by the United States District
Court, Cleveland, Ohio.
The subject stated that she had been told by her mother that she was
less than 1 year old when her parents returned to Lithuania, and that
she had lived in that country from 1922 to 1944. She said that her
child E W Z was born in Denmark on July 6, 1945. She stated that the
father of her child, to whom she was never married, was W H , a German
who had been a guard in a war plant where she was forced to work in
Germany during the war and that he and other guards at the plant had
raped her and other girls working there. She stated that as a result of
this experience her child was born. The subject stated that she was 23
years old when her baby was born; that she had been forced to go to
Germany in 1944 by the Germans; and that she had never made any attempt
to come to the United States until she secured her passport in 1946.
She said that she believed her father had been naturalized in Lithuania.
The subject and her son entered the United States at New York, N.Y.,
on May 27, 1946, and were admitted as United States citizens.
The record includes an affidavit executed by the subject on December
14, 1945, before an American consul, at Copenhagen, Denmark, to explain
her protracted foreign residence. Therein the subject alleged that she
had lived in Lithuania from 1922 to 1944; that her older brother
returned to the United States in 1929; that her younger brother
returned to the United States in 1930; that the older brother revisited
Lithuania for a short period in 1937; that during the war, up until
1944, nothing much happened to her or mother; that in July 1944, she
had been forced to work in Germany under guard for the Germans until the
cessation of hostilities in 1945. At the time this affidavit was
executed, the subject was living in a camp in Denmark and expressed the
desire to come to the United States. A notation on this affidavit
stated that the interpreter employed in the case, who was vouched for by
the British-American-Danish intelligence and security officers,
expressed the opinion that the subject had told the truth about her
story as set forth in the affidavit.
This case was previously considered by this Service on January 2,
1948, at which time it was recommended that further information be
obtained from the Department of State concerning the question as to
whether the subject's father had been actually naturalized in Lithuania
or whether he had been merely recognized as a Lithuanian citizen by the
government of that country. On June 13, 1949, the Department of State
informed this Service:
The records of this Department disclose that the subject's
father was naturalized in Lithuania upon his own petition. This
Department is of the opinion that cancellation of the father's
naturalization as an American citizen would have no bearing on his
acquisition of Lithuanian nationality in 1924 since it appears
that the father had not previously possessed Lithuanian
nationality. The father left Europe in about 1907 which was prior
to the date that Lithuania was established as a foreign state.
The record before us establishes, therefore, that the subject
acquired United States nationality at birth in the United States and
acquired Lithuanian nationality subsequent to her birth through the
naturalization of her father during her minority. The applicable
statute covering the facts disclosed in the instant case provides:
SEC. 401. A person who is a national of the United States,
whether by birth or naturalization, shall lose his nationality by:
(a) Obtaining naturalization in a foreign state, either upon
his own application or through naturalization of a parent having
legal custody of such person; Provided, however, That nationality
shall not be lost as the result of the naturalization of a parent
unless and until the child shall have attained the age of 23 years
without acquiring permanent residence in the United States:
Provided further, That a person who has acquired foreign
nationality through the naturalization of his parent or parents,
and who at the same time is a citizen of the United States, shall,
if abroad and he has not heretofore expatriated himself as an
American citizen by his own voluntary act, be permitted within 2
years from the effective date of this act to return to the United
States and take up permanent residence therein, and it shall be
thereafter deemed that he has elected to be an American citizen.
Failure on the part of such person to so return and take up
permanent residence in the United States during such period shall
be deemed to be determination on the part of such person to
discontinue his status as an American citizen, and such person
shall be forever estopped by such failure from thereafter claiming
such American citizenship. Italic supplied.
According to the terms of the statute above set forth, the subject
was required to return to the United States and acquire permanent
residence therein prior to her twenty-third birthday which in this case
was reached on February 6, 1945. Accordingly, under a literal reading
of the statute, the subject would have lost her United States
nationality since she did not return to the United States until May 27,
1946. However, this Service and the Department of State by
administrative decisions have modified the effect of section 401 which
would ordinarily have resulted from a literal and strict interpretation
of that section of the Nationality Act of 1940. In Matter of S ,
56173/526 (State Department file Y130 -- S S ) the record indicates that
S S was born at Baltimore, Md., on December 5, 1908; that she acquired
Polish nationality as a minor through the acquisition of such
nationality by her father on October 23, 1922; that she applied for an
American passport at Warsaw, Poland, on October 29, 1930; that she did
not make use of the passport which was authorized for her return to the
United States at that time, apparently because she married a Polish
national and continued to reside with her husband in Poland; that she
applied for a passport at Warsaw, Poland, on January 26, 1940, for
travel to the United States with her minor son, stating that she would
return to the United States as soon as she obtained a passport and a
steamship ticket; that a passport was issued to her on May 27, 1941, by
the American Consul General at Berlin, Germany, since evidence was
presented that her passage to the United States was booked upon the S.
S. Excanbion sailing from Lisbon, Portugal, on June 27, 1941; that Mrs
S was subsequently interned in Germany; and that she again applied for
documentation as an American citizen on March 3, 1943 and on October 10,
1945. In a communication dated January 19, 1948, addressed to this
Service, the Department of State stated that:
The Department has reviewed her case in the light of the
opinion of the Attorney General to the effect that naturalized
American citizens who made arrangements to return to the United
States on or before October 14, 1946, but were prevented by
transportation difficulties or other delays incidental to travel
and over which they had no control should not be held to be
expatriated under the provisions of section 404 of the Nationality
Act of 1940. By analogy, the Department considers that a person
who acquired foreign nationality through the naturalization of a
parent and who did everything within his power to return to the
United States before January 13, 1943, or before his twenty-third
birthday, whichever is later in time and who was prevented from
doing so by circumstances beyond his control, may be held not to
have lost American citizenship under section 401(a) of the
Nationality Act until after he shall have had reasonable
opportunity to return to the United States.
In view of the foregoing, the Department is authorizing the
documents of Mrs. S for travel to the United States as an American
citizen, and requests that the certificates of the loss of the
nationality of the United States previously transmitted in her
case be disregarded.
A similar decision was reached by this Service in Matter of G ,
A-175622, /*/ in which the subject was held not to have expatriated
under section 401 despite the fact that she attained the age of 23 years
without acquiring permanent residence in the United States where the
evidence of record indicated that efforts were made to return to the
United States prior to the outbreak of World War II but where return to
this country could not be accomplished because of subject's inability to
secure passage on account of then existing travel conditions.
In Matter of O , A-6921085 (State Department file Y130-O , J , the
Department of State informed this Service in a communication dated June
6, 1949, that in the opinion of that Department, Mr. O expatriated by
reason of section 401(a) of the Nationality Act and was not entitled to
the protection of the theory advanced in Matter of S for the reason that
in the O case it appears that Mr. O had proceeded to Norway in 1931 and
that he took no steps to establish a claim to American citizenship or to
obtain a passport for travel to the United States prior to his execution
of a passport application at Oslo, Norway, on February 15, 1946, he
having reached his twenty-third birthday in 1938. The State Department
held that since Mr. O failed to show that he made any effort whatever to
proceed to the United States prior to January 13, 1943, the later of the
two dates set forth in section 401(a), the Department was of the opinion
that O must be considered to have lost nationality of the United States
under section 401(a) of the Nationality Act. A certificate of loss of
nationality dated May 14, 1948, was approved by the Department of State.
The administrative theory advanced in the three cited cases establish
the principle that a dual national will not suffer loss of United States
nationality under section 401(a) of the Nationality act of 1940, where
such person did everything within his power to return to the United
States before January 13, 1943, or before his twenty-third birthday,
whichever is later in time, and who was prevented from doing so by
circumstances beyond his control, where return to the United States was
made after having had reasonable opportunity to do so. As stated in the
Department of State's communication dated January 19, 1948, in Matter of
S , this principle was established by drawing an analogy between cases
arising under section 401(a) and those under the provisions of section
404 of the Nationality Act. A clearer understanding of that principle
can be obtained if we note the action taken by this Service, the State
Department, and the Attorney General in those cases arising under
section 404.
In Matter of V , A-6501663, the subject, a naturalized United States
citizen, received a United States passport in September 1946, in Greece,
but was unable to return to the United States by October 14, 1946, due
to transportation difficulties. The Board of Immigration Appeals in its
decision of February 28, 1947, held that expatriation would not result
under section 404 and 409 of the Nationality Act of 1940, where a person
on or before October 14, 1946, completed all arrangements to return to
the United States but whose return was delayed because of transportation
difficulties or other delays incident to travel and over which they had
no control, irrespective of such persons location or place of residence
on or before that date. In approving this decision, the Attorney
General on May 15, 1947, concluded that:
The conclusion is inescapable * * * that naturalized persons
embraced within section 404 who, prior to October 14, 1946,
presented to a representative of the State Department satisfactory
evidence that they had made definite arrangements to return
immediately to the United States to reside permanently, have
preserved their American nationality.
The principle above enunciated was thereafter applied in Matter of C
, A-6576113 (C.O. 1947). The enunciation of the principle with
reference to section 404 cases finds support in the several actions of
Congress in connection with section 409 wherein on four separate
occasions section 409 was amended so as to extend the time within which
persons falling within section 404 could return to the United States to
avoid expatriation. /1/ Congress thus manifested its intention of
protecting naturalized United States citizens who without such
protection would have lost their United States nationality under section
404 of the Nationality Act of 1940, by extending the time within which
they were required to return to the United States, thus recognizing the
fact that due to war conditions their return under the date originally
set by section 409 could not be accomplished. It was in furtherance of
this congressional manifestation that the above-stated principle was
enunciated first in Matter of V , supra, and later in Matter of C ,
supra. This was the principle referred by the Department of State in
its letter of January 19, 1948 in Matter of S , and it was this
principle which was extended by analogy to those cases covered by
section 401(a) of the Nationality Act of 1940. In this regard, it is
important to note at this time that the analogy was drawn despite the
fact that Congress was at all times fully aware of the situation in
which 401(a) persons found themselves as a result of war conditions and
though Congress saw fit to make provisions for persons falling within
section 404, it made no similar provisions by congressional enactment to
cover persons whose expatriation was to be determined by section 401(a).
This, despite the fact that the attention of Congress was specifically
directed to the classes of persons embraced within section 401(a) at the
very time Congress was legislating with regard to persons embraced
within section 404. Thus, the rationale which furnishes support for the
principle insofar as it relates to section 404 cases is nonexistent
insofar as section 401(a) cases are concerned. Since the principle has
been extended to section 401(a) cases by analogy, it is obvious that the
principle should not be further extended for the analogous cases than it
has been for cases for which the principle was originally enunciated.
It is necessary, therefore, to determine whether the facts of record in
the instant case bring the subject within the benefit of the enunciated
principle so as to preserve her United States citizenship from the
expatriatory act of section 401(a).
Concerning the subject's actions with reference to her returning to
the United States, the subject testified as follows:
Q. Did you try to come to the United States before 1946?
A. No.
Q. When did you start to come back to the United States?
A. 1945 before Christmas, I went to the American consul in
Copenhagen.
Q. Did you apply there for an American passport?
A. I brought my birth certificate from St. George's Church on
about sixty-seventh and Superior in Cleveland to the American
Consul, Mrs. C , and asked if I can get passport.
Q. Why didn't you try to come back to the United States before?
A. I don't know. Everybody from our family was there (meaning
Europe).
It is noted that the American passport was issued to the subject
April 27, 1946.
The subject's testimony warrants the conclusion that prior to
December 14, 1945, when she for the first time appeared before an
American consular officer, she made no effort nor performed any act with
reference to her return to the United States. It is believed that the
evidence of record also warrants the conclusion that prior to December
14, 1945, the subject never intended to return to the United States.
This finds support in the alien's statement that she did not try to come
back to the United States before because everybody from her family was
then in Europe.
Since her brothers had returned to the United States in 1929 and
1930, respectively, it is apparent that she did not include her brothers
in the term "family.' Inasmuch as subject's brothers returned to the
United States, the subject was fully aware of the fact that such return
could be accomplished. That she did not return to the United States and
made no effort to do so prior to December 14, 1945, indicated that she
had neither the intention nor the inclination to return. Except for the
fact that the subject was in custody of German authorities from July
1944, the facts in her case are almost identical with those in Matter of
O , supra, where the conclusion was reached that expatriation under
section 401(a) resulted for the reasons previously set forth in this
decision. It remains to be determined therefore, whether the subject's
detention by German authorities from July 1944, entitles her to the
benefits of the principle enunciated in Matter of S . To be entitled to
those benefits it is necessary for the subject to establish that prior
to reaching her twenty-third birthday she did everything within her
power to return to the United States and was prevented from doing so by
circumstances beyond her control. The subject reached her majority on
February 6, 1943. She was not taken into custody by the German
authorities until 1 year and 5 months later. The record not only fails
to establish any act or intent on the subject's part to return to the
United States during any period of her life up to July 1944, but does
contain positive testimony of the subject that no such act was made. In
view of such lack of action and lack of intention to return which
existed for at least until July 1944, there is no reason to assume that
the subject would have done everything within her power to return to the
United States between July 1944, when she was first taken into German
custody and February 6, 1945, a period of 7 months, at which date she
reached her twenty-third birthday. To extend to this subject the
benefits of the principle enunciated in Matter of S , it would be
necessary to substitute for the phrase "who did everything within her
power to return to the United States before her twenty-third birthday'
the fact that for a period of 7 months prior to her twenty-third
birthday she was in no position to take any action in that regard
whatsoever because of her being in custody of German authorities. While
such substitution and the resultant extension of the principle might be
warranted in a situation where the evidence of record established that
during the period of custody the subject made some slight effort or
indicated some desire on her part to return, such substitution and
resultant extension of the principle should not be indulged in where the
record evidence as in this case is barren of such evidence. It is
concluded, therefore, that on the basis of the evidence of record, the
subject lost her United States nationality on February 6, 1945, under
the provisions of section 401(a) of the Nationality Act of 1940.
It is ordered, That, from the evidence presented, the subject be
deemed to have lost her United States nationality on February 6, 1945,
under the provisions of section 401(a) of the Nationality Act of 1940.
The subject and the Department of State should be so advised.
It is further ordered, That, from the evidence presented, the
subject's son be deemed not a citizen of the United States. The subject
and the Department of State should be so advised.
(*) Editor's note. -- Unreported, C.O. May 26, 1948; in that case
the German-born subject acquired United States citizenship after coming
here to reside, through her father's naturalization in 1931 when she was
10 (thereby losing German nationality), and reacquired German
nationality when her father was naturalized in Germany in 1940, when she
was 19, unmarried, and residing there. She came back on October 21,
1946 when she was over 23.
(1) Act of Oct. 16, 1941 (55 Stat. 743; 8 U.S.C. 809); act of Oct.
9, 1942 (56 Stat. 779; 8 U.S.C. 809); act of Sept. 27, 1944 (58 Stat.
747; 8 U.S.C. 809); act of Oct. 11, 1945 (59 Stat. 544; 8 U.S.C.
809).