A-3320341.
Decided by Board December 8, 1954.
Philippine Independence Act — Effective date.
The effective date of the Philippine Independence Act for immigration purposes is May 1, 1934, the date on which a concurrent resolution accepting the act was adopted by the Senate and House of Representatives of the Philippine legislature.
CHARGE:
Warrant: Act of 1924 — No immigration visa.
BEFORE THE BOARD
Discussion: The special inquiry officer, in a decision dated June 25, 1954, directed that the proceedings in this case be terminated and that respondent's record of arrival be corrected to show admission for permanent residence. That official then certified the case to this Board for review and final decision.
This record relates to a 39-year-old male, a native and citizen of the Philippine Islands. He last entered the United States on May 9, 1934, at San Francisco, California. The record shows that he was not then in possession of an immigration visa. It appears that he has remained in the United States at all times since May 9, 1934.
The records show that upon arrival on May 9, 1934, respondent was held for action by a board of special inquiry and, on May 18, 1934, excluded from admission to this country on the grounds that he was an immigrant without a visa; that he was likely to become a public charge; and that his passage was paid for by another. He appealed from that decision and at some later date, not shown, was apparently paroled into the country awaiting decision by the Commissioner on appeal. On February 7, 1935, an order was entered by the Assistant to the Secretary of Labor affirming the order of exclusion solely on the ground that he was an immigrant not in possession of a visa. On September 18, 1935, a formal order to deport was issued by the Deputy Commissioner. Thereafter, the Service was unable to locate the alien until October 15, 1940, when he registered as an alien under the Alien Registration Act of 1940, but he again disappeared until January of 1942. He was then taken into custody, but on February 17, 1942, was again ordered placed on parole by the Special Assistant to the Attorney General. On October 17, 1946, a motion to set aside the order of exclusion and deportation was made, requesting that the alien be permitted to apply for suspension of deportation. The Service files do not show that the parole was ever set aside, but they do show that on September 9, 1947, a warrant of arrest in deportation proceedings was issued and on October 14, 1947, the alien released from custody on bond.
The special inquiry officer's termination of the proceedings is based on the conclusion that the respondent was not required to present an immigration visa at the time of his arrival on May 9, 1934. That conclusion, in turn, is based on the finding that the Philippine Independence Act did not become effective until May 14, 1935. Thus, the initial issue presented by this case requires determination of the date on which the Philippine Independence Act actually became effective.
The special inquiry officer's finding that the Philippine Independence Act did not become effective until May 14, 1935, appears to be based on a pronouncement to that effect by the Court of Appeals for the 9th Circuit in the case of Del Guercio v. Gabot, 161 F. (2d) 559 (C.C.A. 9, 1947), which statement it reiterated in the case of Mangaoang v. Boyd, 205 F. (2d) 553 (C.C.A. 9, 1953). However, that same court, in the case of Cabeb v. Acheson, 183 F. (2d) 795 (C.A. 9, 1950), has also set the effective date of the act as November 15, 1935. Thus, it is clear that the court is not certain as to just when the act did become effective. We, however, take the position that its effective date for immigration purposes is May 1, 1934.
Section 17 of the Philippine Independence Act of March 24, 1934, provided that it would be effective when:
"* * * accepted by concurrent resolution of the Philippine legislature or by a convention called for the purpose of passing upon that question as may be provided by the Philippine legislature." [Emphasis supplied.]
A concurrent resolution accepting the act was adopted by the Senate and House of Representatives of the Philippine legislature on May 1, 1934 (Hackworth, Digest of International Law, Volume 1, page 496; and 22 U.S.C. 1281, Historical Note). Therefore, we hold that it became effective on that date, because the primary condition for its effectiveness, as laid down by Congress, was then met. The fact that Congress provided for an alternative condition for its becoming effective obviously became immaterial when the first method was chosen. We see in the words of section 17 no language reasonably requiring an interpretation that the conditions spelled out therein were in the conjunctive. That is, we find no room in the construction of this section for any doubt that when the Philippine legislature by joint resolution approved the act it became effective without more.
The dates seized upon by the Court of Appeals for the 9th Circuit relate to the approval of the Philippine Constitution by the Philippine people (May 14, 1935) and the date of the Inauguration of the Commonwealth of the Philippines, that is, the date that the first president began serving (November 15, 1935). We, however, find that these dates are in no way determinative of the effective date of the Philippine Independence Act of 1934.
The act did authorize the Philippine legislature to provide for the election of delegates to a constitutional convention to formulate and draft a constitution "for the Government of the Commonwealth of the Philippine Islands." It provides (section 3) that the constitution to be drafted and approved by the constitutional convention should be submitted to the President of the United States and, if certified by him to conform to the act, to the people of the Philippine Islands for their ratification (section 4). It also provided that such ratification should be deemed an expression of the will of the people of the Philippine Islands in favor of independence; and that when obtained, and proclaimed by the President of the United States, "the existing Philippine Government shall terminate and the new government shall enter upon its rights." In this connection, the constitution of the Philippines was adopted by a Philippine Constitutional Convention on February 8, 1935. On March 23, 1935, the President of the United States notified the Governor General of the Philippine Islands that the proposed constitution had been submitted to him and that he certified that "the same conforms substantially with the provisions of the Act of Congress approved March 24, 1934." Thereafter, the constitution was submitted to the people of the Philippines and approved by them on May 14, 1935. Thereafter, on November 15, 1935, the Commonwealth of the Philippines was inaugurated. (Cf. Hackworth, Digest of International Law, Volume 1, pages 493-502; Annals of the American Academy of Political and Social Science, Volume 226, Chapter on the Philippine Islands; also, this information was verified by the Philippine Desk of the Department of State and Mr. Quirino of the Philippine Embassy in Washington, D.C.)
Furthermore, we find additional support for our position that the dates of approval of the Philippine constitution by the people of the Philippine Islands and the date of the inauguration of the Philippine Commonwealth are not determinative of the effective date of the Philippine Independence Act of 1934. First, on November 5, 1935, the Minister of the Union of South Africa presented to the Secretary of State an inquiry from the South African Department of Customs and Excise relative to the classification of the Philippine Islands for customs and statistical purposes. The Secretary of State replied that until the President of the United States shall by proclamation withdraw and surrender all right of possession, supervision, jurisdiction, control, or sovereignty in the Philippines as provided in section 10 (a) of the Independence Act "sovereignty over the Philippine Islands rests with the United States." (Secretary Hull to the Minister of the Union of South Africa, November 15, 1935; M.S. Department of State, File 811-b. 01/261.) In addition, the Supreme Court has stated that the Philippine constitution did not alter our relationship with the Philippine Islands in any way ( Cincinnati Soap Company v. United States, 301 U.S. 308, 313-314, 319-320 (1937)).
Also, on the question of deportability, the special inquiry officer felt that when the respondent entered the United States on May 9, 1934, he probably could not be considered as "arriving from some foreign port or place," in accordance with the case of Barber v. Gonzales, 347 U.S. 637, 98 L. Ed. 675 (1954). In that case, the Supreme Court stated: "That the Philippines became foreign for immigration purposes with the 1934 Philippine Independence Act." In this connection, the facts are that the act was passed by Congress on March 24, 1934; that the respondent left the Philippines on April 18, 1934; that the act became effective on May 1, 1934; and that the respondent arrived in the United States on May 9, 1934.
In view of the foreging, we hold that the respondent was required to present a visa at the time of his arrival. The act was passed prior to his departure from the Philippines. It was effective at the time of his arrival in the United States. By its terms, it made the 1924 act applicable to the respondent. The latter act contained the visa requirement. Nor does the fact that applicable regulations were not promulgated until June 8, 1934 (G.O. No. 209, 55775/253; Rule 31 [1937 edition, Immigration Laws]) call for a contrary conclusion. The law itself contained the visa requirement and the regulations were not needed to implement it in this respect. Such a situation is clearly distinguishable from the one in which the law is drafted in the terms of broad purpose and regulations are needed to specifically spell out the conditions under which the law shall be applicable. (Cf. "resident neutral alien" requesting relief from military service; Matter of K----, A-9623678, 4 IN Dec. 348).
On the basis of the foregoing, we conclude that respondent is deportable on the charge contained in the warrant of arrest, and that the special inquiry officer's order terminating the proceedings was improper.
Discussion as to eligibility for suspension of deportation:
The record shows that the respondent has resided in the United States at all times since 1934. It also shows that he was legally married to a native-born citizen of the United States on January 26, 1945, and that there is one child of that union. It further shows that the wife has divorced the alien and is no longer dependent upon him for support, but he claims to be paying $10 weekly toward the support of the child. Furthermore, the record shows that prior to his marriage, respondent lived out of wedlock for several years with another woman, as a result of which relationship there were three children born. In this connection, the respondent offers various excuses for not having married this woman; he states that this woman has now disappeared and he does not know her whereabouts or that of two of the children; but that he has under his care the oldest of the three children and is providing her with a home and education. Respondent is employed as an agricultural worker earning $50 to $70 per week, and his assets consist of a diamond ring valued at $750. It is clear on the record that the respondent has resided in the United States in excess of seven years and that he was so residing on July 1, 1948.
A check of appropriate local and federal records has failed to reveal an arrest or criminal record relating to the respondent. He registered under the Selective Training and Service Act of 1940, and is not presently required to register under the Selective Service Act of 1948. Inquiry has disclosed that the alien has no connection with subversive groups. Witnesses have been produced to establish that the respondent has been a person of good moral character for the preceding five years. The special inquiry officer has pointed out that investigations conducted by officers of the Service leave grave doubts as to whether good moral character is established, but these reports appear to be solely concerned with the question of whether or not the respondent is supporting his children.
The respondent is a quota immigrant and as such chargeable to a country whose quota is heavily oversubscribed. Therefore, he would not be able to readily secure an immigrant visa if granted the privilege of voluntary departure.
On the basis of the foregoing, we feel that suspension of deportation is merited in these premises. We will now enter an appropriate order.
Order: It is ordered that the outstanding order of the special inquiry officer dated June 25, 1954, be and the same is hereby withdrawn.
It is furthered ordered that the deportation of the alien be suspended under the provisions of section 19 (c) of the Immigration Act of 1917, as amended.
It is further ordered that if the Congress approves the suspension of the alien's deportation, the proceedings be cancelled and the alien, if a quota immigrant at the time of entry and not then charged to the appropriate quota, be so charged as provided by law.