E-89342
Decided by the Board March 2, 1954
Failure to furnish notification of address — Deportability under section 241 (a) (5) of the Immigration and Nationality Act — Definition of "willful" and "reasonably excusable" — Voluntary departure.
(1) In the absence of definition and any indication to the contrary, the terms "willful" and "reasonably excusable" should be given their plain and ordinary meaning as used in the context in which they appear, namely, section 241 (a) (5) of the Immigration and Nationality Act. Failure to furnish notification of address will not render an alien deportable even though such failure was intentional provided there was sufficient justification for such failure. The evidence of exculpatory circumstances must be established by credible evidence sufficiently persuasive to satisfy the Attorney General in the exercise of his reasonable judgment considering the proof fairly and impartially.
(2) Since the respondent is deportable under section 241 (a) (5) of the act, he is ineligible for voluntary departure under section 244 (e) thereof unless he also qualifies for suspension of deportation under section 244 (a) (5) which he is unable to do because of lack of physical presence.
CHARGES:
Warrant: IN Act — Visitor for business-failed to comply.
Lodged: IN Act — Failed to furnish notification of his address.
BEFORE THE BOARD
Discussion: This is an appeal from the order of the special inquiry officer finding the respondent deportable on the charges set forth above and directing his deportation.
The respondent is a 28-year-old married male, a native of Jamaica, British West Indies, subject of Great Britain, who last entered the United States at the port of West Palm Beach, Fla., on July 21, 1950, by plane, at which time he was admitted as a business visitor under the act of 1924 to perform agricultural labor in this country. The record clearly reflects that the respondent abandoned his exempt status and no issue has been raised as to his deportability on the warrant charge. Exception has been taken, however, to the special inquiry officer's conclusion that the respondent is subject to deportation on the lodged charge, and that he is ineligible for the privilege of voluntary departure as a result thereof.
The testimony relating to the lodged charge is brief and will, therefore, be quoted verbatim from the record.
Q. Did you report your whereabouts to the Commissioner of Immigration and Naturalization at Washington, D.C., under the address report program within 10 days of January 1, 1951 and 1952, and within 30 days of January 1953, as required by the laws of the United States?
A. No.
Q. Why have you failed to comply with this provision of law?
A. I didn't hear about it until this year.
Q. Then why didn't you do it then?
A. (Alien remains silent.)
Q. Did you know about it during the first 30 days of January 1953?
A. Yes.
Q. Why didn't you do it?
A. I was afraid of being picked up.
Q. By the immigration officers?
A. Yes.
Q. Was that the only reason why you failed to report your whereabouts during the first 30 days of January 1953?
A. Yes.
The pertinent portion of section 241 (a) (5) of the Immigration and Nationality Act provides for the deportation of an alien who has failed to comply with the provisions of section 265 of said act, "unless he establishes to the satisfaction of the Attorney General that such failure was reasonably excusable or was not willful * * *." Section 265 of the Immigration and Nationality Act requires every alien who is subject to the registration provisions of the act and is in the United States on January 1, 1953, to submit notification of his address and such other information as may be required by the Attorney General by January 31, 1953.
Section 241 (a) (5) of the Immigration and Nationality Act provides a new ground of deportability not to be found in any of the prior immigration laws. The apparent purpose of this provision was to implement the control of aliens in the United States by providing an additional penalty, namely, deportation upon their failure to comply with the address report feature of the alien registration program. Though it is obvious from a perusal of this section that an alien's failure to report his address as required will not automatically furnish a ground for deportation, reference to the legislative history of the Immigration and Nationality Act yields no definition of the italicized terms. In the absence of any indication to the contrary, therefore, we should give those terms their plain and ordinary meaning, as used in the context in which they appear.
The term "willful" has been defined as "intending the result which actually comes to pass; designed; intentional; not accidental or involuntary", Black's Law Dictionary, page 1773, 4th Edition. "Generally, it (willful) means no more than that the person charged with the duty knows what he is doing", ( Townsend v. United States, 95 F. (2d) 352, 358, (C.A.D. of C., 1938)).
The term "reasonably excusable" connotes an act or omission which is moderately or sufficiently justifiable ( State ex rel. Bliss v. Dority, 225 P. (2d) 1007; State v. Mueller, 243 N.W., 478 (Wis. 1932)).
In view of the fact that the terms referred to in section 241 (a) (5) appear in the disjunctive, the failure to furnish notification of address will not render an alien deportable even though such failure was intentional, provided that there was sufficient justification for such failure. The existence of the exculpatory circumstances must be established by credible evidence sufficiently persuasive to satisfy the Attorney General, in the exercise of his reasonable judgment, considering the proof fairly and impartially (Cf. Ching Hong Yuk v. United States, 23 F. (2d) 174 (C.C.A. 9, 1927); United States v. Hrasky, 240 Ill. 560, 88 N.E., 1031 (1909)).
On this appeal counsel admits that the respondent's failure to report his address was willful, but contends that it was reasonably excusable. He alleges that the respondent's wife to whom he was married on January 3, 1953, has been suffering from anemia and low blood pressure; that they were trying to accumulate the sum of $500 to furnish as a bond so that he might surrender himself voluntarily to the immigration authorities; and that his failure to report his address in 1953 was motivated by a desire to avoid complications to his wife which might result from his apprehension if he submitted an address report. We find nothing in the record to corroborate counsel's allegation as to the reasons for the respondent's failure to register. As far as the record shows, the sole reason was his desire to avoid arrest by the immigration authorities. We have already held an alien to be deportable on a similar state of facts, Matter of M----, 0300-430947, B.I.A. May 6, 1953, Int. Dec. No. 438. We do not consider counsel's statements, unsupported by the record, as justifying a different holding in the instant case.
Having concluded that the respondent is amenable to deportation under section 241 (a) (5) of the Immigration and Nationality Act, it follows that he is ineligible for voluntary departure under section 244 (e) of the same act, unless he also qualifies for suspension of deportation under section 244 (a) (5) of the act. Since he lacks the physical presence requirements for suspension of deportation, he necessarily fails to meet the statutory requirements for eligibility for voluntary departure. We therefore find no error in the order of the special inquiry officer and will accordingly dismiss the appeal.
Order: It is ordered that the appeal be and the same hereby is dismissed.