56028/552
Decided by Board March 18, 1949
Exclusion proceedings — "Nonresident" — Eligibility for hearing on application for suspension of deportation — Section 19 (c) (2) of the Immigration Act of 1917, as amended.
Since it is clear that section 19 of the Immigration Act of 1917, as amended, is concerned only with resident aliens, an excluded alien (who is not a resident) is not entitled to be heard on his application for suspension of deportation under the provisions of section 19 (c) (2) of the Immigration Act of 1917, as amended.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Chinese exclusion laws — Alien of Chinese race not in possession of a section 6 certificate or other required document.
Act of 1924 — Alien ineligible to citizenship.
BEFORE THE BOARD
Discussion: This case comes before us on appeal from an order dated November 19, 1948, by the Assistant Commissioner of Immigration and Naturalization denying application for suspension of deportation and directing that the sum of $1,000, constituting payment of delivery bond in the case of the appellant, be covered into the Treasury.
The application arises in an exclusion proceeding. The alien, a native of China, now 27 years of age, arrived at New York on October 6, 1939, and sought admission as a citizen, under section 1993 Revised Statutes, claiming to be the son of one N---- G---- F----, a citizen who had resided in the United States prior to the applicant's birth. His claim was found not reasonably established and he was excluded by the Board of Special Inquiry. On appeal, the exclusion was affirmed. Court proceedings followed, but without changing the result. The outbreak of the war made it impossible to effect the alien's deportation and on December 15, 1941, it was directed that he be released on bond in the amount of $1,000 conditioned upon his production for deportation on demand.
As the alien was not produced when required the bond was declared breached. Thereafter counsel for the alien moved to have the case reopened, based on the fact that the alien was married on May 1, 1946, to a citizen of the United States and opportunity was desired to submit evidence that deportation would result in serious economic detriment to his wife. The motion was dismissed by us on November 12, 1947, on the ground that suspension of deportation may be granted only after an alien is arrested in deportation proceedings, and the applicant was before us in an exclusion proceeding.
The record shows that the applicant was previously married in China on December 31, 1938, to one C---- S----, who, it is alleged, was killed by Japanese bombs sometime prior to September 9, 1945.
Notwithstanding such denial, the alien submitted formal application for suspension of deportation, denial of which by the Assistant Commissioner on November 19, 1948, is now before us on appeal. Counsel was heard by us in oral argument on February 15, 1949. Counsel states that the alien feels he is entitled at least to a hearing on the application for suspension, as to whether the marriage was entered into in good faith. The Commissioner denied the application "for the reason that the law provides no procedure for suspension of deportation in the cases of aliens who are under exclusion proceedings." As to this, counsel states:
I think the Commissioner is wrong. If the Board sustains the Commissioner and says insofar as throwing a man out there is a distinction between exclusion and deportation you would set up something interesting. * * * The man has been here for more than 7 years and is entitled to file application for suspension of deportation for residence. You may later determine he is not a man of good moral character. * * * He is a quota immigrant, the order by the Commissioner saying he won't even be granted a hearing. There are four or five reasons why this boy can still make an application for hearing.
The provision of law authorizing a grant of suspension of deportation is embodied in clause (c) of section 19 of the Immigration Act of 1917 (8 U.S.C. 155). Clause (a) of that section provides that an alien of any one of the classes defined therein "shall, upon the warrant of the Attorney General, be taken into custody and deported." The succeeding clauses (b, c, and d) are all related to and associated with the main clause, viz: (a) Exclusion proceedings are prescribed in other portions of the act.
It is clear that section 19 is concerned only with resident aliens. An excluded alien is not a resident ( Kaplan v. Tod, 1925, 267 U.S. 229).
We regard the contention of counsel that an alien involved in an exclusion proceeding may be heard on an application for suspension of deportation as untenable. The appeal from the order of the Assistant Commissioner will be dismissed. However, because of his citizen spouse we will grant a short stay of deportation and permission to reapply after exclusion and deportation when in possession of proper documents. Order: It is ordered that the appeal from the order of the Assistant Commissioner be dismissed.
It is further ordered, That deportation be stayed for a period of 90 days from date of notice of this decision, with permission to depart mean while to a country of his own choice, and that the alien be granted permission to reapply for admission after exclusion and deportation when in possession of appropriate documents.