A-10484495
Decided by Board July 5, 1957
Waiver of documents — Returning residents — Not applicable where lawful resident makes series of entries under false claim to citizenship.
An alien who subsequent to lawful admission for permanent residence gained entry on a number of occasions by falsely claiming United States citizenship was not entitled to the documentary waiver afforded by the regulation in effect at the time of his last entry in 1944. The regulation was written to benefit aliens "previously lawfully admitted for permanent residence." However, on each occasion when respondent obtained admission under a false claim to citizenship he made an illegal entry into the United States and, consequently, at the time of his last entry he could no longer qualify as an alien "previously lawfully admitted for permanent residence."
CHARGE:
Order To Show Cause: Act of 1952 — Section 241 (a) (1) [ 8 U.S.C. 1251 (a) (1)] — Excludable at time of entry — No visa, reentry permit or border-crossing identification card.
BEFORE THE BOARD
Discussion: The case comes forward on appeal by the examining officer from the order of the special inquiry officer dated February 11, 1957, terminating proceedings.
The Service seeks deportation on the charge contained in the order to show cause. It has been established that the respondent is a native and citizen of Denmark, named H---- M---- A----, born on April 4, 1904. He last entered the United States at the port of San Francisco, California, on May 4, 1944, ex SS. Heber M. Creel, under the assumed name of H---- J----, which he testified he had been using since about 1933. It has been established that the respondent was admitted to the United States for permanent residence at the port of New York on July 20, 1920, ex SS. Oscar II. During the course of the hearing the respondent testified that he had been shipping intermittently as a seaman since his admission for permanent residence and that in connection therewith he always claimed to be a United States citizen, although he does not allege that he has any claim to United States citizenship.
At the time of the respondent's last entry into the United States there was in effect Executive Order No. 9352 of June 15, 1943, Part III of which exempts from documentary requirements "alien seamen who, previously, have been lawfully admitted into the United States for permanent residence, who are returning to an unrelinquished domicile in the United States and who are not inadmissible into the United States under the immigration laws." There was also in effect at the time of the respondent's last entry 8 CFR 175.42 (b) which provided that no alien should thereafter be permitted to enter the United States unless in possession of a valid unexpired permit to enter or exempted under regulations from presenting a permit to enter. Section 175.44 (g) of Title 8, Code of Federal Regulations, exempted from the requirements of a permit to enter "aliens, occupationally seamen, previously lawfully admitted for permanent residence, who have not relinquished their domicile in the United States and who are returning to the United States in accordance with the terms of the articles of outward voyage, or in accordance with and following terms of their discharge before an American consular officer."
The special inquiry officer concluded that notwithstanding the respondent's claim to be a United States citizen, he came within the purview of the Executive Order and the regulations in effect and was not required to present an immigration visa, reentry permit or border-crossing identification card at the time of his last entry. However, assuming that the general waiver of documents does apply to aliens who evaded inspection upon entry by claiming to be citizens of the United States, it does not follow that the documentary charge must fall. This is so because the respondent was not an alien "previously lawfully admitted" at the time of his last entry from foreign. He had prior to that last entry gained admission to the United States by willfully misrepresenting himself to be a citizen of the United States. An entry made in such a manner is an illegal entry. It follows that the alien had entered illegally prior to his last entry from foreign and was, therefore, not eligible for the waiver of documents and deportation will be ordered on the charge contained in the order to show cause.
Unreported Matter of P----, A-6010867 (B.I.A., Dec. 24, 1946); unreported Matter of P----, A-2466751 (B.I.A., Dec. 5, 1947).
Matter of H----, A-4536853, 6 IN Dec. 738, 741 (B.I.A., 1955).
Order: It is ordered that the alien be deported pursuant to law on the charge set forth in the order to show cause.