A-9765584
Decided by Board January 16, 1952 Decided by Attorney General January 30, 1952
Discretionary relief — Seaman coming here to remain in violation of law — Policy re effective administration of the immigration laws.
A seaman who came here May 31, 1948, with the deliberate intention of seeking employment and remaining here in violation of law who was granted the privilege of voluntary departure within 30 days as a matter of leniency in July 1951 because of past years of employment as a seaman and on assurance he was able and willing to leave as directed, and who failed to depart without explanation, was ordered deported. After such order of deportation became effective, he proceeded to marry on October 13, 1951, hoping to obtain additional leniency as the spouse of an American citizen. An effective administration of the immigration laws requires the denial of the motion for relief from deportation, the order of deportation to remain in force and effect. (See Matter of M----, 3 IN Dec. 490).
CHARGE:
Warrant: Act of 1924 — No immigration visa.
BEFORE THE BOARD
(January 16, 1952)
Discussion: This case is presently before the Board on a motion by counsel dated November 6, 1951, asking for suspension of deportation, or voluntary departure and preexamination. The case involves an Italian alien, approximately 30 years of age, who arrived in the United States at Norfolk, Va., May 31, 1948, as a seaman on the Italian S.S. Paolina. Two days later he left the ship, and he testifies that his intention was to remain in the United States permanently. He further testified that he had decided to do that prior to arriving in the United States, because he had been told that living conditions in this country were better than in Italy. A warrant of arrest was issued October 31, 1949, or a year and 5 months after the respondent's arrival in this country. He was accorded a hearing under that warrant on November 2, 1949. An order of deportation was entered by the Acting Assistant Commissioner on December 14, 1949, which order was affirmed by this Board January 25, 1950.
Because of the Sung decision, Wong Yang Sung v. McGrath, 70 S. Ct. 445, 339 U.S. 33, 94 L. Ed. 383, a new hearing was accorded respondent on December 14, 1950. The hearing officer found the respondent deportable, and denied discretionary relief. An order of deportation was entered by the Acting Assistant Commissioner on May 1, 1951. On appeal to this Board, the respondent was represented by P---- B----, who orally argued the matter on June 15, 1951, and asked for voluntary departure. Counsel requested 60 days, stating that the respondent had sufficient funds with which to effect departure at his own expense, saying he had between $500 and $700. Counsel was advised at the argument that the normal maximum period granted in cases such as this was 30 days. Counsel indicated that if voluntary departure were granted, 30 days to leave would be acceptable.
This Board on July 11, 1951, authorized voluntary departure without an order of deportation within 30 days, and further provided that if departure did not occur within that time, the order of deportation be reinstated and executed. The justification for the grant of voluntary departure was the fact that the respondent claimed to have been working as a seaman both in the Italian Navy and the merchant marine since he was 14 years of age. He had been employed as a longshoreman since arriving in this country.
It will be observed that the grant of voluntary departure on July 11, 1951, was for but 30 days. The order became effective upon notification by the field office of the Immigration and Naturalization Service. The record before us does not show exactly when notice was sent by the local field office, but we may rightfully assume it was within a relatively short period after the date of the Board's order. Motion filed now is dated November 6, 1951, long after the 30-day period had expired. The motion sets forth that the respondent was married October 13, 1951, to an American citizen, and also alleges that the respondent and his present wife were keeping company with each other since about 1 year prior to their marriage. There is filed a photostatic copy of marriage certificate showing that the respondent and J---- S---- were married by a clerk of the city of New York, in the Borough of Brooklyn, on October 13, 1951. There is also filed a photostatic copy of a certificate of baptism by the Church of the Sacred Hearts of Jesus and Mary of Brooklyn, N.Y., showing that J---- S---- was born on December 12, 1923, and was baptized on July 12, 1923. The certificate is dated July 12, 1925. There obviously is some error in either the date of birth or date of baptism.
It is our conclusion that the motion should be denied in its entirety and the order of deportation be permitted to stand. This is the case of a seaman who came to this country with the deliberate intention of seeking employment and remaining here in violation of law. The order of this Board of July 11, 1951, was exceptionally lenient, and justified only because of past years of employment as a seaman, and on the assurance that the respondent had the ability and willingness to leave within the period of time granted him. The present motion gives no explanation whatever why the respondent did not leave within the time granted. After the period had expired and after the order of deportation became effective he proceeds to marry, then hoping to obtain additional leniency. We are convinced that an effective administration of the immigration laws requires us to deny the present motion, and we believe that the order of deportation should remain in force and effect.
Order: It is ordered that the motion be denied.
The decision and order of the majority of the Board of Immigration Appeals dated January 16, 1952, are hereby approved.
The order of the majority denying the motion for a little additional time within which to depart from the United States or suspension of deportation serves to expel from this country by deportation the alien, husband of a native United States citizen born in Brooklyn, N.Y., a penalty which I believe is far in excess of that contemplated by Congress who passed legislation for the relief from deportation of an alien where similar facts as here, exist (8 U.S.C., sec. 155).
Reasonable men may differ in their opinions but on the basis of the decision Ali v. Butterfield, Civil No. 11095, December 11, 1951, particularly because of the family separation involved, it is my conclusion that in the absence of any fraud on the part of the alien and in order not to deprive a United States citizen of all of her equal rights and privileges, in a matter of this kind, I find it necessary to disagree with the majority and to suggest that the alien be granted a little additional time within which to depart from this country without an order of deportation outstanding so that he may later return to his United States citizen wife by appropriate adjustment of his immigration status.
I disagree with the decision of the majority denying the motion of the respondent filed through counsel. The outstanding order directs that the alien be deported from the United States. The denial of the respondent's motion by the majority decision will result in this order of deportation being executed.
The majority decision discusses the routine actions taken in the case to date. However, certain factors of the case which are not brought out in the routine recital of chronological dates merit discussion.
The respondent last entered the United States on May 31, 1948, at Norfolk, Va., as a deserting seaman. He has therefore had over 3 years and 7 months residence in the United States. A warrant of arrest was issued on October 31, 1949, 1 year and 5 months after his entry. Final action by this Board on the merits did not take place until July 11, 1951, over 1½ years subsequent to the issuance of the warrant of arrest. True, as stated by the majority, the Sung case intervened. However, the decision in the Sung case was rendered on February 20, 1950, almost 4 months after the issuance of the warrant of arrest. Had the Government's case proceeded promptly and without delay, the respondent could and should have been removed from this country prior to the date of the Sung decision. In fact the decision of the Board dismissing the appeal of the respondent from the original order of the Commissioner of December 14, 1949, was dated January 25, 1950, and counsel was notified thereof the following day.
It may be presumed that the respondent is an uneducated and uninformed alien and the fact that an interpreter has been used throughout the proceedings indicates that he does not even speak English. Consequently the proceedings against him by the Government which had been permitted to drag out over a period of 2 years and 2 months without final decision could be expected to lull him into a sense of security which would justify his belief that he was safe to contract a marriage. That marriage is a normal expectancy is evident when consideration is given to the fact that he is today under 30 years of age and the girl he married is 29. Apparently neither have ever previously been married.
We do not have here the case of an alien who by various and devious pretexts has attempted to delay his removal from the United States. The record indicates that he has complied with each and every order of the Department. The only time that he has ever made any request in connection with his deportation proceedings is the present motion filed in his behalf, through counsel, based upon the fact that on October 13, he married a native-born citizen of the United States.
The majority decision makes much of the fact that the motion to reopen is dated November 6, 1951, long after the 30-day period for departure provided in our order of July 11, 1951, had expired and further states that "we may presume that he was notified promptly of our decision of July 11." I do not think this is a fair presumption. Prior experience has proved that the field offices are very prompt and diligent in deporting aliens from the United States who have failed to depart within the period provided in our orders. The fact that the record does not show that any action had been taken to enforce his deportation prior to the motion date of November 6 is in my opinion indicative that he was not promptly notified and that in all probability the time permitted him by the New York office within which to depart had not yet expired. But in any event this is a fact easily ascertained and if it is germane should be ascertained. A telephone inquiry to the Commissioner of the Immigration Service would promptly discover whether the time allowed the alien by the New York office in which to leave had expired and if so the date of such expiration.
Coming now to the question of whether discretionary action of any kind should be granted, I would like to call attention to the M---- case, A-6429531, decided by this Board on February 11, 1949, subsequently approved by the Attorney General and which has been the key case in similar cases since the date of such decision. ( 3 IN Dec. 490) M---- hd entered the United States on October 1, 1946. A warrant of arrest was subsequently issued and on March 25, 1948, the Acting Commissioner ordered him deported. This Board on June 14, 1948, disapproved the order of deportation and granted voluntary departure within 90 days of notification. As in the instant case and subsequent to our final action granting voluntary departure M---- on July 26, 1948, married a United States citizen. The case again came to us on February 11, 1949, at which time the question which confronted us was not whether M---- should be deported but whether we should grant him suspension of deportation or voluntary departure. The decision of the majority, approved by the Attorney General, was that he be granted an additional period of 90 days within which to depart.
In deciding that case the majority stated:
We conclude, therefore, to deny reopening of this case to receive an application for suspension of deportation. The alien was given voluntary departure on June 14, 1948. There is some indication that he was considering going to Mexico. We will assume that the alien was duly appreciative of the leniency heretofore extended to him and that he has been making arrangements diligently to effect his departure. Now, as the husband of a citizen, he is entitled to a preference under the quota. According to the latest information we have from the Department of State, no waiting period is involved for applicants for first preference quota visas under the Netherlands quota. We will, however, extend the period of voluntary departure for 90 days.
Since then we have seen fit to cite the M---- case on many occasions. However, very shortly thereafter we modified the same to the extent that in similar cases of recent marriage where there was no evidence of fraud we would feel free to grant suspension of deportation if in the interim the citizen wife became pregnant. More recently we have even gone further and have in a great number of cases, some even similar to the instant case granted preexamination which would permit the respondent promptly to proceed to Canada for the purpose of procuring an immigration visa. Furthermore, there is not a single case on record decided by this Board where in the absence of obvious fraud voluntary departure as a minimum has been denied. The instant case is the first where an order of deportation has been entered.
We do not have here a case where the respondent has played fast and loose with the Board. Apparently he has followed to the letter every order served upon him. His only request is that after residence in the United States for 3 years and 8 months, over 2 years of which have transpired since the issuance of a warrant of deportation that he be granted a short additional period of time within which to leave. His request is based upon his marriage to a native-born citizen of the United States on October 13, 1951, and if granted would permit him within a reasonable period of time to adjust his status so that he may live permanently in the United States with his United States citizen wife.
See petition of Ali v. Butterfield, Civil No. A-11095, U.S. District Court for the Eastern District of Michigan, Southern Division, decided December 11, 1951, wherein Departmental action had denied a short additional time within which to depart without the issuance of an order of deportation. Wherein the court upon indicating its intent to dismiss the writ, stated that it would do so upon evidence being presented that respondent had been given a short additional period of time to depart.
The granting of such request would not extend to him any greater privilege than he has already been given by this Board, it would merely prolong the date of departure, which we extended to him in our order of July 11, 1951, which was prior to his marriage. In effect what the majority order does is to penalize him for his marriage to a United States citizen by the issuance of an order of deportation.
If the order of the majority of the Board is carried out what does it mean? It means, first, that he cannot even apply for permission to reapply to the United States until he has been absent from the United States for a period of 1 year. Secondly, it means that even then he cannot reapply for admission unless permission so to do has been granted him by the Commissioner of Immigration and Naturalization. Furthermore, his wife cannot even file a visa petition in his behalf until the Commissioner has granted him permission to reapply. To an uneducated alien who does not even speak English these obstacles are very great, if not insurmountable. In the meantime the home which he has established will be broken up and whether it will ever be reestablished is problematical.
In my opinion it was not the intention of Congress that such rigorous action should be taken in cases of this character. The immigration laws have been amended particularly for the purpose of giving discretionary authority where the welfare of the citizens are involved.
For the reasons stated in the foregoing, I would, as a minimum, grant the respondent a further reasonable period of time within which to depart from the United States without the issuance of a warrant of deportation. This will at least enable him now to start the various official procedures necessary in order that he may at some future date return to the United States to his native-born citizen wife.
In accordance with section 90.12 (b), title 8, Code of Federal Regulations, the Board refers the case to the Attorney General for review of its decision.