5982828
Decided by Board, August 10, 1948 Approved by Attorney General, January 6, 1950
Immigration visa — Deportability for lack of such document at time of last entry — Section 14, act of 1924 — Whether section 13, act of 1924 need to be construed to require such document of a person who had the status of a "naturalized citizen" at the time of such entry, but whose "naturalization" was cancelled later for fraud — Application of doctrine of "relation back" in the case of a returning legal resident.
(1) Although cancellation of a person's naturalization, on the ground of actual fraud, may be held to operate by 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 such "naturalization," nevertheless this doctrine of "relation back" is a legal fiction at best and need not be applied universally regardless of the particular circumstances.
(2) To construe the Immigration Act of 1924 to require the impossible would be a captious interpretation not intended by Congress, and such would be the case if it were held a "citizen" was required to have a document under the act of 1924, as an immigrant in 1931, since such a document could not be issued to a citizen, who was a returning legal resident, to whom such document might have been issued were he an alien then.
(3) An alien, who was admitted to the United States for permanent residence in 1923, was naturalized in 1930, visited Europe in 1930-31, reentered the United States as a citizen thereof in 1931 (without an immigration visa or reentry permit, i.e., a document required of an alien), and whose naturalization was cancelled for "actual fraud" in 1944, is not subject to deportation under sections 13 (a) and 14 of the Immigration Act of 1924 [on the ground that at the time of his last entry (1931) he was an immigrant ("alien") not in possession of a valid immigration visa and not exempted therefrom] under the particular circumstances in this case.
CHARGE:
Warrant: Act of 1924 — No immigration visa.
BEFORE THE BOARD
Discussion: This case is before us on motion for reconsideration of our decision and order of April 10, 1947. Counsel contends that respondent is not, as a matter of law, subject to deportation and requests cancellation of the proceedings.
Respondent is a 50-year-old native of Germany. He came to the United States for Permanent residence on December 17, 1923. On March 11, 1930, he was naturalized an American citizen. In August 1930, while still enjoying the status of an American citizen, he left the United States on a visit to Europe. He returned to his home in this country on June 5, 1931. He was then admitted as an American citizen.
Approximately 13 years after respondent's return to the United States the Government instituted proceedings to cancel his naturalization on the ground of fraud. On March 28, 1944, his naturalization was canceled. Thereafter the Immigration and Naturalization Service issued a warrant for respondent's arrest in deportation proceedings. The warrant of arrest was based on respondent's entry on June 5, 1931. The ground of deportation was that respondent had not presented an immigration visa at the time of that entry as allegedly required by the Immigration Act of 1924. The theory of the Immigration and Naturalization service was that by the reason of the cancellation of respondent's naturalization on the ground of actual fraud, he was never, from a strictly legal point of view, an American citizen and had always been an alien. Johannessen v. United States, 225 U.S. 227 (1912); Rosenberg v. United States, 60 F. (2d) 475 C.C.A. 3, 1932), cert. den. 287 U.S. 645 (1932). As an alien, respondent should have presented either a reentry permit or an immigration visa at the time of his June 1931 entry. The Immigration and Naturalization Service, therefore, recommended respondent's deportation to Germany. In our decision and order of April 10, 1947, we agreed with the theory of the Service.
Upon reconsideration, however, and for the reasons to follow, we do not think that our decision and order were correct. It is our belief that respondent, as a matter of law, cannot be deported because of his failure to present an immigration visa at the time of his 1931 entry.
When respondent left the United States in August 1930 to visit in Europe and when he returned in June 1931, he was, both from a legal and from a factual point of view, an American citizen. As such, he was not in any way subject to the immigration laws. He was free to cross our borders without restraint and without regard to any of the documentary requirements of the Immigration Act of 1924. In fact, even if he had wanted to, he could not have obtained, prior to departing, a reentry permit from the immigration authorities or, prior to returning, a returning resident's visa from the consular authorities abroad. Under the facts as they existed in June 1931, he was entitled to admission as a citizen and he was so admitted.
The theory of the Service, adopted by us in our last decision, can be supported only through the use of the doctrine of relation back, a legal fiction at best. 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 Law ed. Advance Opinions (Sup.Ct.) 69, 71. 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.
Because of these considerations, we reverse our previous conclusion and we now hold that respondent is not subject to deportation on the charge contained in the warrant of arrest. Our present holding overrules any prior decision, whether of the Immigration and Naturalization Service or of this Board, inconsistent therewith.
Order: The outstanding order and warrant of deportation are withdrawn and the proceedings dismissed.
The decision and order of the Board of Immigration Appeals dated August 10, 1948 are hereby approved.