A-5634929
Decided by the Board February 5, 1953
Seventh proviso, section 3 of the Immigration Act of 1917, as amended — Savings clause, section 405(a) of the Immigration and Nationality Act of 1952.
An application for the benefits of the seventh proviso to section 3 of the Immigration Act of 1917, as amended, filed prior to December 24, 1952, is saved by section 405(a) of the Immigration and Nationality Act of 1952. An alien who prior to the effective date of the Immigration and Nationality Act of 1952, filed such an application based upon inadmissibility because of a prior attack of insanity is eligible for the discretionary relief contained in the seventh proviso to section 3 of the 1917 act where it is shown that his mental health has been good subsequent to 1925 when he was confined for about six months in a mental institution, his native-born United States citizen wife is dependent upon him for support, he is ready, willing, and able to depart from the United States, and a visa is readily available to him.
DEPORTABLE: Act of 1924 — Remained longer — Visitor.
BEFORE THE BOARD
Discussion: This is an appeal from the Assistant Commissioner's order of May 6, 1952 withdrawing an order of December 16, 1949 (which gave the respondent certain discretionary relief) and requiring the deportation of the respondent on the ground stated above.
The alien is a 72-year-old married male, a native and citizen of Italy, who had resided in the United States about 38 years (from about 1887 to 1925) when he proceeded to Europe where he remained until 1939 when he attempted to reenter and was excluded as one afflicted with insanity. His admission to the United States was authorized as a visitor for 1 year under the ninth proviso to section 3 of the Immigration Act of 1917 conditioned upon the filing of a public charge and departure bond. He has remained in the United States since this admission. His wife is a native-born citizen of the United States. He has 11 children, all born in the United States, some of whom have seen service with the Armed Forces of the United States. He is self-employed as a tailor and is self-supporting. His mental health appears to have been good subsequent to 1925, when he was confined for about 6 months to a mental institution in the United States.
On December 16, 1949, the Acting Assistant Commissioner, to enable the respondent to acquire the status of a permanent resident, entered the aforementioned order denying his application for suspension of deportation as a discretionary matter and granting him the privilege of voluntary departure, preexamination and advance exercise of the seventh proviso, if otherwise admissible than as one who has had one or more attacks of insanity or as one who may be afflicted with insanity. In granting the respondent the privileges set forth, the Acting Assistant Commissioner took cognizance of his residence in the United States for 59 years; his dependent citizen wife and citizen children; the fact that he has not required treatment for any mental disorder for the past 24 years; and the fact that he has been self-supporting.
On February 17, 1950, this Board dismissed an appeal from the decision of the Acting Assistant Commissioner but extended the time within which the respondent could depart voluntarily.
On November 27, 1951, the field office of the Service informed the respondent since he had not departed within the time permitted, request would be made of the Assistant Commissioner that an order of deportation be entered. On May 6, 1952, the Assistant Commissioner withdrew the outstanding order of December 16, 1949, and ordered deportation. The appeal is from this order.
At oral argument, respondent submitted a letter dated May 14, 1952, from the American Consulate General at Montreal, Canada, inviting him to file a formal application for a visa after he had undergone preexamination. Respondent stated he had applied at the Service office and requested preexamination and that he had been unable to obtain such relief from the Service; that he is now in a position to go to Canada instantly; and that he did not previously attempt to go to Canada because until May 14, 1952, he had not been requested by the American consul to appear for appointment. He has also submitted a letter of recent date from the chief of police of the city where he has been a resident for about 10 years stating that his previous inability at some time in the past to appear for examination before immigration authorities was due to a physical injury to his knee. A letter of recent date also reveals that there is no criminal record against the respondent.
Respondent is desirous of becoming a legal resident of the United States and is taking steps to do so. The respondent's long residence, his close family ties, his dependent United States citizen wife, and the facts that he has been self-supporting, and his mental condition has not been the cause of concern since 1925, and other favorable factors of record, make this appear an appropriate case for our assistance if we have any power to aid him in his efforts, the fruition of which appears so close at hand. Respondent's previous grant of voluntary departure, preexamination and advance exercise of the seventh proviso was based on authority derived from the seventh proviso to section 3 of the act of February 5, 1917, as amended. On December 24, 1952, Public Law 414 which specifically repealed the act of February 5, 1917, as amended, became effective.
The general rule is that powers derived wholly from a statute are extinguished by its repeal. Unless our right to grant seventh proviso relief were in some way preserved, it would not appear that we would have power to grant such administrative relief in this case.
Sec. 212(c) of Public Law 414 provides relief for returning residents inadmissible for other than documentary grounds (the subject matter of the seventh proviso) as follows:
"Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General without regard to the provisions of pars. (1) through (25) and pars. (30) and (31) of subsec. (a). Nothing contained in this subsection shall limit the authority of the Attorney General to exercise the discretion vested in him under sec. 211(b)."
The respondent's case does not fall within the provisions of sec. 212(c) for the reason that he was not lawfully admitted for permanent residence at the time of his last entry.
Subsection (a) of section 405 of Public Law 414 which contains savings clauses, reads as follows:
Nothing contained in this act, unless otherwise specifically provided therein, shall be construed to affect the validity of any declaration of intention, petition for naturalization, certificate of naturalization, certificate of citizenship, warrant of arrest, order or warrant of deportation, order of exclusion, or other document or proceeding which shall be valid at the time this act shall take effect; or to affect any prosecution, suit, action, or proceedings, civil or criminal, brought, or any status, condition, right in process of acquisition, act, thing, liability, obligation, or matter, civil or criminal, done or existing, at the time this act shall take effect; but as to all such prosecutions, suits, actions, proceedings, statutes, conditions, rights, acts, things, liabilities, obligations, or matters the statutes or parts of statutes repealed by this act are, unless otherwise specifically provided therein, hereby continued in force and effect. When an immigrant, in possession of an unexpired immigrant visa issued prior to the effective date of this act, makes application for admission, his admissibility shall be determined under the provisions of law in effect on the date of the issuance of such visa. An application for suspension of deportation under section 19 of the Immigration Act of 1917, as amended, or for adjustment of status under section 4 of the Displaced Persons Act of 1948, as amended, which is pending on the date of enactment of this act, shall be regarded as a proceeding within the meaning of this subsection.
No discussion on our problem is found in the congressional debates or in the reports of the House, Senate, or conference committees on Public Law 414, although advance exercise of authority under the seventh proviso in cases of persons who entered illegally has been a long established, useful and often used practice.
Matter of H----, 56038/883, 1 IN Dec. 166, 170.
The exercise of the seventh proviso in matters awaiting disposition at the time of the effective date of Public Law 414, we believe to have been included in the savings clause. The use of such words as status, condition, right in the process of acquisition, act, thing, or matter, in addition to prosecution, suit, action, or proceeding, goes about as far as language can, to manifest that it is the purpose of Congress to have matters awaiting disposition at the time of the effective date of the statute decided by the law in effect immediately prior thereto. Where one has been placed in deportation proceedings and makes application for exemption from the deportation provisions under the seventh proviso, certainly such an application is so substantial as to be included in the definition of thing, matter, or act. Furthermore, although the grant of seventh proviso relief is discretionary and it may be revoked, once an alien has been granted relief under the seventh proviso and it has not been revoked, he has the "right" to enter the United States irrespective of certain features of the law which would otherwise bar his entry. His application for such relief, it would appear, could also well fall within the category set forth in the savings clause — a right in the process of acquisition.
Matter of H----, A-7596142, 4 IN Dec. 260.
Even considering seventh proviso relief solely as a privilege and not a right, should not require the construction of the savings clause so that it would result in arbitrary denial of the privilege to certain individuals within the class of those to whom it is accorded solely because there has been a delay without their fault in having their application for relief considered.
Public Law 414 became effective December 24, 1952. Respondent's appeal and request for oral argument was received July 11, 1952. His appeal was not heard until December 29, 1952.
Enumeration in a savings clause in a savings section is made to save the enumerated things, not to destroy the things not enumerated. It is with this rule in mind that we must view the portion of the savings clause indicating that suspension of deportation (a discretionary relief) is to be viewed as a proceeding. It is also important to note that the mention is made to direct that only applications made by a certain deadline were to be considered under the old law. This directive clearly indicates the desire of Congress to protect applications for discretionary relief as a "proceeding."
Walsh v. Alaska S.S. Co., 101 Wash. 295, 172 P. 269.
It too is interesting to contrast the savings clause in Public Law 414 with that in the prior laws (comparative print of the texts of the Immigration and Nationality Act and immigration and nationality laws existing prior to enactment of Public Law 414, committee print, 82d Cong., 2d sess.). Such a comparison reveals that the savings clause contained in Public Law 414 has been enlarged by the addition of the words among others of "any status, condition, right in the process of acquisition." Clearly it was the intent of Congress that all matters (not specifically provided for otherwise) awaiting disposition at the time of the effective date of the statute were not to be disturbed by the new law.
We conclude therefore that section 405(a) of Public Law 414 continued the authority to grant respondent relief under the seventh proviso to section 3 of the act of 1917. This being so, and all the factors being present which made the original grant of relief desirable and it appearing that he is ready, willing and able to depart from the United States to obtain his visa, that he has been invited to make application abroad for a visa, and it appearing such a visa would be available to him, he will be granted voluntary departure, preexamination and advance exercise of the seventh proviso to section 3 of the act of February 5, 1917, as amended.
Order: It is ordered that the outstanding order of deportation be withdrawn.
It is further ordered that the alien be permitted to depart from the United States voluntarily, without expense to the Government, to any country of his choice, within such period of time, in any event not less than 90 days, and under such conditions as the officer in charge of the District deems appropriate, conditioned upon consent of surety.
It is further ordered that preexamination be authorized conditioned upon a showing that the alien can obtain prompt issuance of an immigration visa.
It is further ordered that if the alien applies for admission to the United States within 3 months after his authorized departure, he be admitted under the seventh proviso to section 3 of the Immigration Act of 1917, if otherwise admissible than as one who has had one or more attacks of insanity or as one who may be afflicted with insanity.