A-9552318
Decided by the Board March 15, 1954
Hearings — Exclusion and expulsion — Resident alien is entitled to hearing even though he arrives as a stowaway.
Notwithstanding the provisions of section 273 (d) of the Immigration and Nationality Act, a resident alien who departs temporarily and is returning to an unrelinquished residence in the United States is entitled to a hearing before he can be deported and it makes no difference that the case arises in expulsion or exclusion proceedings. There is no distinction as to the residence of a seaman serving on American vessels returning as a seaman or returning as a stowaway. In either case, he is entitled to a hearing because his prior residence in the United States clothed him with the protection of the due process clause of the Fifth Amendment.
EXCLUDABLE:
Immigration and Nationality Act — Stowaway.
BEFORE THE BOARD
Discussion: The case comes forward on appeal after hearing from the order of the special inquiry officer dated January 21, 1954, holding that as a matter of law he had no jurisdiction to grant a hearing or enter an order in the case and remanding the case to the district director with respect to the outstanding order to detain and deport the alien.
Briefly, the record relates to a native and citizen of Honduras, 30 years old, male, who was lawfully admitted for permanent residence on February 12, 1951. He married a citizen of the United States at Reno, Nev., on July 1, 1953. On or about July 3, 1953, at San Francisco he signed articles for a 9-month tour of duty on the M/V Sword Knot, a vessel of United States registry, sailing between Japan and Korea. He flew to Tokyo, Japan, and joined the vessel about July 7, 1953. In September 1953, he became involved in a fracas with another crew member as a result of which other crew members demanded his removal as mess steward. The situation was presented to the American consul at Yokohama, Japan, on September 28, 1953, and apparently arrangements were made to have a Coast Guard hearing. However, the applicant did not proceed with the orderly steps for a sign-off but stowed away on the SS. President Wilson and last arrived at the port of Honolulu, T.H., on October 5, 1953. He was ordered detained on board the SS. President Wilson and ordered deported. Thereafter he was temporarily removed for prosecution and was placed aboard the SS. President Cleveland pursuant to the order to detain and deport with the understanding that the American President Lines would return him to Honduras. He arrived at San Francisco, Calif., on November 1, 1953, where he instituted habeas corpus proceedings, a writ issued, and after hearing, the court continued the matter of judgment, for the purpose of having the Service determine whether, under all the facts in the case, a special inquiry officer had jurisdiction to make any appropriate order in the matter.
Section 235 (a) of the Immigration and Nationality Act provides that the inspection of all aliens, including alien crewmen, seeking admission or readmission to or the privilege of passing through the United States shall be conducted by immigration officers except as otherwise provided in regard to special inquiry officers. Section 235 (b) provides that every alien (other than alien crewmen) who may not appear upon primary inspection to the examining immigration officer at the port of arrival to be clearly and beyond a doubt entitled to land shall be detained for further inquiry to be conducted by a special inquiry officer, except prejudicial entry cases, and stowaways. The issue presented is whether notwithstanding section 273 (d) it would constitute a denial of procedural due process to order this alien, who had previously been lawfully admitted for permanent residence, detained on board and deported without a hearing.
Sec. 235 (c), Immigration and Nationality Act.
Sec. 273 (d), Immigration and Nationality Act provides:
"* * * The provisions of section 235 for detention of aliens for examination before special inquiry officers and the right of appeal provided for in section 236 shall not apply to aliens who arrive as stowaways and no such alien shall be permitted to land in the United States, except temporarily for medical treatment, or pursuant to such regulation as the Attorney General may prescribe for the ultimate departure or removal or deportation of such alien from the United States."
The applicant testified that he first entered the United States in November 1941 as a seaman and since that time has made numerous entries as a seaman and was admitted for permanent residence on February 12, 1951. He testified that he worked for the Military Sea Transport Service from 1944, and since that time has sailed on ships only of United States registry. Between voyages he considered his home to be San Francisco. He testified that in 1942 he was torpedoed. On September 14, 1951, he filed a declaration of intention in the district court of the United States, San Francisco, Calif., and married a United States citizen on July 1, 1953. The evidence accordingly establishes that since 1944 the applicant has maintained residence in the United States and has had lawful permanent residence since February 1951. His service at sea since 1944 has been aboard vessels of United States registry.
It is well established that if an alien is a lawful permanent resident of the United States and remains physically present there, he is a person within the protection of the fifth amendment. He may not be deprived of his life, liberty or property without due process of law. Before his expulsion he is entitled to a notice of the nature of the charge and a hearing before an executive or administrative tribunal. The constitutional status of an alien who as a lawful permanent resident of the United States, is protected by the due process clause of the fifth amendment remains unchanged upon his return aboard a vessel of American registry, with its home port in the United States, after completion of a voyage outside the United States made by the alien as a seaman on such a vessel.
Kwong Hai Chew v. Colding, 344 U.S. 590 (1953).
It has also been held that a resident alien seaman, even though never lawfully admitted for permanent residence, is nonetheless entitled to a hearing and cannot be detained on board without notice of the charges against him. In Roggenbihl v. Lusby, the court declared that the gist of the Supreme Court's holding in the Chew case was that a foreign voyage by a seaman on a vessel of American registry with a home port in the United States does not terminate the constitutional status which he enjoyed prior to the voyage. The court further stated that while on board his ship on its return to an American port the resident alien seaman was regarded, at least for constitutional purposes, not as an entrant alien, but as an alien physically although unlawfully resident in the United States and that the voyage is not to be regarded as an interruption of continual physical presence in the United States. Further, that an alien who has not entered clandestinely and who has remained in the country for some time and has become subject to its jurisdiction and a part of its population cannot be taken into custody and deported without notice or hearing, even though it is alleged his presence here is illegal.
The Japanese Immigrant case ( Yamataya v. Fisher), 189 U.S. 86 (1902).
It may therefore be taken as settled that a resident alien who departs temporarily and is returning to an unrelinquished residence in the United States is entitled to a hearing before he can be deported, and it makes no difference that the case arises in explusion or in exclusion proceedings. We see no distinction as to the residence of a seaman serving on American vessels returning as a seaman or returning as a stowaway. In either case, he is entitled to a hearing because his prior residence in the United States clothed him with the protection of the due process clause of the Fifth Amendment; Kwong Hai Chew v. Colding, 344 U.S. 590 (1953).
Sec. 212 (a) (18) of the Immigration and Nationality Act specifically makes a stowaway inadmissible to the United States. Where a stowaway without residence arrives in the United States, he is denied a hearing and sec. 212 (a) has no application. To give effect to sec. 212 (a) (18), Congress may have realized that a stowaway with United States residence was entitled to a hearing, but nonetheless wished to put stowaways within the category of aliens inadmissible to the United States.
In this case, as has already been pointed out, the applicant has been an alien resident seaman since 1944 and a permanent lawful resident since February 1951. He has a wife in this country and has never evinced the slightest intention of abandoning his residence in this country. On the facts of this case, we feel justified in "assimilating" the applicant's status for constitutional purposes to that of a continuously present alien resident entitled to a hearing at least before an executive or administrative tribunal ( Kwong Hai Chew v. Colding, supra). It is accordingly concluded that the alien was properly granted a hearing before a special inquiry officer and that the special inquiry officer had jurisdiction to render an appropriate order in the case.
The continual residence and physical presence of the alien in the United States distinguishes the case from the facts in Shaughnessy v. United States ex rel. Mezi, 345 U.S. 206 (1953) where the alien simply left the United States and remained behind the Iron Curtain for 19 months.
In connection with the appeal, we shall also dispose of the substantive matters relating to the application. The applicant is returning without a valid immigrant visa or a reentry permit to his lawful permanent residence after a temporary absence. Were no other obstacle present, he might be considered for the discretion contained in section 211 (b) of the Immigration and Nationality Act in order to waive the lack of documents. However, he is unquestionably inadmissible as a stowaway under section 212 (a) (18). There is no discretion to waive the stowaway ground except under section 212 (c) of the Immigration and Nationality Act, and this applicant does not possess the 7 years lawful permanent residence required to make him eligible for consideration of this form of discretionary relief. The altercation on board the M/V Sword Knot and the disinclination to face a Coast Guard hearing does not render his stowing away or his entry involuntary. Accordingly, we find the applicant to be inadmissible both on the stowaway charge and on the documentary charge of no visa. We shall, however, grant the alien permission to reapply for admission after exclusion and deportation.
Order: It is ordered that the alien be excluded as a stowaway and as a person not in possession of a valid immigrant visa.
It is further ordered that permission to reapply after exclusion and deportation be granted.