E-080901.
Decided by Board August 5, 1954.
Entry without inspection — Section 241 (a) (2) of Immigration and Nationality Act.
An alien's false claim to birth in the United States at the time of his entry is tantamount to a claim of citizenship in this country and he thereby avoids inspection. Such an alien is deportable under section 241 (a) (2) of the Immigration and Nationality Act as an alien who entered without inspection.
CHARGES:
Warrant: Act of 1952 — Entered without inspection, by false and misleading statements.
Act of 1952 — Excludable at entry — convicted of crimes prior to entry; larceny, receiving stolen goods (act of 1917).
Act of 1952 — Excludable at entry — no visa, reentry permit, or border-crossing card (act of 1940).
BEFORE THE BOARD
Discussion: We have directed that this case be certified to us for the entry of the final order. The special inquiry officer at the time of entering his order terminating the proceedings on June 8, 1954, advised the alien of the procedures and time allowed him to submit further pleadings to this Board. Inasmuch as no brief or other pleading has been submitted, we conclude that the respondent desires us to base our decision on the present record.
The record relates to a 33-year-old single male, a native and citizen of Czechoslovakia, who last entered the United States at Niagara Falls, New York, by truck on November 26, 1949, at which time he did not possess nor present a valid immigrant visa, reentry permit or a resident alien's border-crossing identification card. The record shows that the respondent was originally admitted to the United States at New York, New York, on August 14, 1921, when ten months of age. He was inspected and admitted at that time for permanent residence. His only absence from the United States was for several hours on November 26, 1949, while driving a truck as a member of an advertising caravan. This departure and reentry into the United States was apparently not discovered until the alien filed papers some years later in connection with securing citizenship in the United States. At the time of the November 1949 departure and reentry, the respondent was questioned by immigration inspectors who requested information as to his place of residence and birth. The respondent stated in reply to these questions that he was a resident of Pittsburgh, Pennsylvania, and that that was also the place of his birth. Though the record is not too clear in this respect, it would appear that the respondent had given the same answers to the inspectors at the time of his departure and reentry.
The warrant for the arrest of the respondent contains the three charges as shown above. We concur with the special inquiry officer's findings that the respondent is not now subject to deportation on the second and third charges stated in the warrant of arrest.
The special inquiry officer entered a finding that the respondent was not deportable on the first charge stated in the warrant of arrest. This charge relates to the alien's entry in November 1949 by means of false and misleading statements, thereby entering the United States without inspection in violation of section 241 (a) (2) of the Immigration and Nationality Act. The special inquiry officer gives as his reason for his finding in this respect that the laxity of the immigrant inspector in not questioning more exhaustively the alien as to his citizenship did not, in fact, make this an entry without inspection. We cannot concur in this finding. The respondent acknowledged under oath that the inspector asked him his place of residence and birth and that he gave a false reply as to his place of birth by stating that he was born in Pittsburgh, Pennsylvania, whereas he was fully aware that he was born in Czechoslovakia. The respondent in his affidavit of February 25, 1953, states that he was born in Czechoslovakia and acknowledges the falsity of his statements to the immigration inspector in stating that he was born in the United States. Under these circumstances, we feel that his claim to birth in the United States is tantamount to a claim of citizenship in this country and that by making such false claim he avoided inspection. We must, therefore, hold that the special inquiry officer's finding in this respect cannot be sustained and that the respondent is subject to deportation on the first charge contained in the warrant of arrest.
We are not unaware of the strong sympathetic appeal presented in this case; however, we are without authority to terminate the proceedings where there is a statutory basis for deportation which is supported by the evidence of record.
In view of the sympathetic features of the case, we have given careful consideration to all possible remedies. As indicated above, we do not have statutory authority to dismiss the charge and the maximum descretionary relief which we may authorize is limited to voluntary departure, as the alien does not have the requisite period of unbroken residence for consideration of suspension of deportation. We will, therefore, authorize voluntary departure.
Order: It is ordered that the outstanding order of deportation be withdrawn and 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 60 days, and under such conditions as the officer in charge of the district deems appropriate.
It is further ordered that if the alien does not depart from the United States in accordance with the foregoing, the order of deportation be reinstated and executed.