0300-469017.
Decided by Special Inquiry Officer July 26, 1954. Approved by Board July 30, 1954.
Discretionary authority contained in section 211 (c) and (d) of Immigration and Nationality Act may be exercised to correct inadmissibility under section 11 (c) of the Refugee Relief Act.
The discretionary authority contained in section 211 (c) and (d) of the Immigration and Nationality Act may be exercised, conditioned upon payment of the required visa fee, to permit admission into the United States of a quota immigrant in possession of a special nonquota immigrant visa issued under section 4 (a) (6) of the Refugee Relief Act, based on a relative preference for which he was not qualified, but who could not by reasonable diligence have learned of the defect in the visa before embarking for the United States.
EXCLUDABLE:
Section 11 (c), Public Law 203 — Refugee Relief Act of 1953.
BEFORE THE SPECIAL INQUIRY OFFICER
(July 26, 1954)
Discussion: This record relates to a 48-year-old married male, an alien, a native and citizen of Italy, who last arrived at the port of New York, N.Y., on July 24, 1954, as a passenger on the steamship Cristoforo Colombo, making application for admission to the United States for permanent residence. At the time of arrival he presented as the basis for admission an Italian passport valid to June 11, 1955. He also presented immigrant visa and alien registration, immigrant classification — nonquota under Public Law 203 — section 4 (a) (6). The visa was issued by the American Consulate General at Palermo, Italy, on June 17, 1954, and is valid to October 16, 1954, and bears No. 676. The visa was issued on the basis of approved petition executed by the applicant's brother, P----, an American citizen. The petition which was approved on March 9, 1953, bears No. VP 2-2828. The testimony adduced establishes that P----, the petitioner, died on January 21, 1953. The applicant has testified that when he learned by letter from his relatives in the United States that his brother had died, he became disturbed regarding the possibility of being ineligible for a visa and went to the travel agent who had been assisting him in securing a visa and told the travel agent of his problem. The applicant further states that the travel agent told him that he had nothing to worry about because of the fact that assurances for his support had been given by other members of his family and his brother's death would not interfere with his securing a visa. The applicant has testified that having been given this information, his fears were allayed and he felt he had nothing more to worry about or to inquire about. Because he no longer had any doubt as to his eligibility for a visa, he did not propound the same question to the American consul who later gave him his visa. He has testified that he was not specifically asked by any consular official or immigration official abroad whether his brother was alive. If he had been asked, he would have testified truthfully. I have found, based upon his demeanor and his testimony today, that the applicant has testified truthfully as to his belief that his brother's death did not prevent his being given a visa and being admitted into the United States. His testimony on this subject is supported by the fact that the applicant of his own volition truthfully told the immigration officer who examined him at the port of New York in response to a question put to him by the immigration officer, that his brother was dead. If the applicant were intent upon deceiving this Government as to his brother's death, certainly he would not have hesitated to continue a deception by telling the immigration officer at the port of New York that his brother was yet alive. The applicant has asked that if found inadmissible to the United States, he be admitted under the authority contained in section 211 (c) and (d) of the Immigration and Nationality Act. No basis for a finding of inadmissibility exists in this case separate and apart from any basis for inadmissibility which rests upon the aforementioned death of the applicant's brother. The applicant has denied any arrests or subversive affiliations. He believes that he will be self-supporting in this country and if he requires any aid, he has sufficient family ties in this country to secure financial aid.
Two questions present themselves. The first question is whether if the applicant is found to be inadmissible under the Refugee Relief Act of 1953, he may nevertheless be admitted under section 211 (c) and (d) of the Immigration and Nationality Act. The second question of course is whether, if he may legally be admitted under the Immigration and Nationality Act as a matter of law, he should be admitted under that act as a matter of discretion. Considering the first question, reference is had to section 4 (a) (6) of the Refugee Relief Act which provides "Special nonquota immigrant visas" may be issued to persons of Italian ethnic origin "who qualify under any of the preferences specified in paragraph (2), (3), or (4) of section 203 (a) of the Immigration and Nationality Act." In order for eligibility under section 203 (a) (4) to exist, there must of course be a living brother in this case. The applicant's brother having died before the issuance of a visa to him, that death constituted an automatic revocation of the approved petition and that death of course deprived the applicant of any status under section 203 (a) (4) of the Immigration and Nationality Act. Ergo, since the applicant does not have such status, he may not be issued a visa under the Refugee Relief Act and since section 11 (c) of the Refugee Relief Act of 1953 provides that no person shall be issued a visa or be admitted into the United States unless that person is found to have established eligibility for a visa and admission to the United States under the act and immigration laws, it must necessarily be found that the applicant is inadmissible under the Refugee Relief Act. However, Congress in enacting section 4 used the phrase "Special nonquota immigrant visas." Congress in using that phrase obviously intended to have visas issued within the framework of the Immigration and Nationality Act, although in issuing visas within the framework of that act, the Congress set up a class known as "Special," but nevertheless a nonquota immigrant visa class. It is believed that the visa before me is a nonquota visa within the meaning of section 211 (c) of the Immigration and Nationality Act. It is believed that this applicant is a nonquota immigrant within the meaning of section 211 (a) (3) of the Immigration and Nationality Act and may, if it is found expedient, be excluded under section 211 (a) (3) of the Immigration and Nationality Act. However, no recourse will be had to exclusion under section 211 (a) (3) of the Immigration and Nationality Act since no useful purpose would be served. For the purpose of invoking section 211 (c) of the Immigration and Nationality Act, however, this case will be considered as if excludability had been established and invoked under section 211 (a) (3) of the Immigration and Nationality Act. It cannot be contemplated that Congress in passing this act [the Refugee Relief Act of 1953] intended an immigrant to be the subject of less grace in permitting admission when a defect in visa was shown to exist, than the Congress extended to those persons coming to the United States under the Immigration and Nationality Act provisions with a defective visa. It is, therefore, found that, as a matter of law, section 211 (c) and (d) of the Immigration and Nationality Act may be applied to a case of this kind.
The second question therefore presents itself — whether or not the authority vested in the Attorney General under section 211 may be exercised and should be exercised in this case. In determining that question I must first examine the issue of whether or not the inadmissibility was not known to and could not have been ascertained by the exercise of reasonable diligence by this immigrant prior to the departure of his vessel from the last port outside the United States. The applicant has testified that he was disturbed when he heard of his brother's death and did go to the travel agent assisting him to ask information as to whether or not that death would affect his status. He was informed that it would not affect his status. It is found that the phrase "reasonable diligence" contemplates that type of diligence which a reasonable man in the applicant's position and possessing that same degree of intelligence should have exercised. It was not unreasonable for the applicant to refer his question to a travel agent, a person of some dignity as far as the applicant was concerned, for the answer to his question. A more prudent, a more careful man might well have asked the consulate, but the applicant of average intelligence and average position in life in Italy reasonably could have been expected to ask a travel agent the perplexing question rather than to "annoy" the consulate with his small problems. I, therefore, find that in this case the applicant could not by reasonable diligence have learned of his defect in visa before embarking for the United States.
The applicant has several relatives in the United States. He has apparently liquidated all his affairs in Italy. To bar him from admission to the United States at this time would be to inflict upon him a tremendous financial loss and would sentence him, in view of the seriously oversubscribed Italian quota, to a permanent return to Italy and deprive him probably forever of an opportunity of coming to the United States. It is believed on these facts that as a matter of discretion the applicant should be admitted to the United States under section 211 of the Immigration and Nationality Act. I, therefore, set forth the following findings of fact and conclusions of law on the issue of excludability and upon the entire record my decision as follows.
Findings of Fact as to Excludability:
(1) That the applicant is an alien, a native and citizen of Italy;
(2) That the applicant last arrived at the port of New York, New York, on the SS. Cristoforo Colombo on July 24, 1954, applying for admission to the United States for permanent residence;
(3) That the applicant is in possession of a valid Italian passport;
(4) That the applicant is in possession of an immigrant visa issued as nonquota under Public Law 203 — section 4 (a) (6);
(5) That the visa was based upon approved petition submitted by his brother, P----;
(6) That his brother, P----, died on January 21, 1953, prior to the issuance of the visa;
(7) That the applicant was not aware and could not by reasonable diligence have ascertained that because of his brother's death the visa was invalid.
Conclusions of Law as to Excludability:
(1) That the applicant is inadmissible to the United States under section 11 (c) of the Refugee Relief Act of 1953, Public Law 203, as an alien ineligible for a visa and admission into the United States under section 4 (a) (6) of Public Law 203 in that he does not qualify for issuance of visa and for admission into the United States under the preference specified in section 203 (a) (4) of the Immigration and Nationality Act.Order: It is ordered that pursuant to the provisions of section 211 (c) and (d) of the Immigration and Nationality Act the Department of State be notified to reduce the quota of Italy during the current fiscal year if a quota number is available, otherwise during the next following fiscal year, and that the applicant be admitted for permanent residence.
(July 30, 1954)
Discussion: The special inquiry officer in an order dated July 24, 1954, certified this case to the Board for final decision in accordance with the applicable regulations. We have carefully considered all the evidence of record and we concur in the conclusion of the special inquiry officer. Accordingly, we will direct that the action of the special inquiry officer be approved, conditioned upon the payment of the required fee.
Order: It is ordered that the action of the special inquiry officer be approved, conditioned upon the payment of the required fee.