A-9557645
Decided by the Board November 13, 1953
Savings clause — Section 405 of the Immigration and Nationality Act — Voluntary departure.
An application for voluntary departure made prior to the effective date of the Immigration and Nationality Act is to be considered as a proceeding whose validity is preserved under section 405 of the Immigration and Nationality Act and such application is to be decided under the appropriate provisions of the Immigration Act of 1917 rather than under the Immigration and Nationality Act.
CHARGE:
Warrant: Act of 1924 — Remained longer — Seaman.
BEFORE THE BOARD
Discussion: This is an appeal from an order of the special inquiry officer directing that the respondent be deported.
The respondent is a 45-year-old married male, a native of Curacao, Netherlands West Indies, who last entered the United States on January 5, 1948, as a seaman. Deportability is established. The sole issue relates to the denial of discretionary relief.
The record indicates that the respondent was legally married on February 1, 1953, to a native-born United States citizen spouse. He first met her in 1947 and began living with her in 1949. They have three children, 5 years, 4 years, and 3 months of age, respectively, all born in this country. He supports his wife and three children, as well as his wife's child by a previous marriage. He was previously married in Curacao about 1934 and this marriage was terminated by a divorce granted on December 8, 1952. He has three children by his previous marriage, all residing in Curacao.
At the warrant hearing held on August 13, 1952, the respondent, through his counsel, applied for suspension of deportation under the act of 1917. Counsel also requested the hearing officer for an opportunity to permit the respondent to adjust his marital status and indicated an intention to apply for voluntary departure and preexamination when such status was adjusted. A formal application for voluntary departure and preexamination on form I-255 was filed on November 15, 1952. The special inquiry officer considered the application for suspension of deportation to be a nullity since it was made after June 27, 1952, and was not preserved by section 405 (a) of the Immigration and Nationality Act. We concur in that conclusion. He also found the respondent ineligible for the privilege of voluntary departure in that he fails to meet the requisite good moral character standard under section 101 (f) of the Immigration and Nationality Act because he committed adultery within the 5-year period. With that finding we do not agree, for we believe that section 101 (f) of the Immigration and Nationality Act does not apply to the instant proceeding.
Section 405 (a) of the Immigration and Nationality Act insofar as pertinent provides 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 specified provided therein, hereby continued in force and effect. * * *
We have already held that 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. Matter of D---- L----, A-5634929, February 5, 1953, Int. Dec. No. 435. We also believe that under the broad language of section 405 (a) an application for voluntary departure made prior to the effective date of the Immigration and Nationality Act is to be considered as a proceeding whose validity is preserved, and that such an application is to be decided under the appropriate provisions of the act of 1917, rather than under the Immigration and Nationality Act.
Under section 19 (c) of the 1917 act voluntary departure may be granted to any alien who has proved good moral character for the preceding 5 years. In construing this section we have held that the mere commission of adultery during the statutory period does not preclude a finding of good moral character, where other extenuating factors are present. Matter of O----, A-3889600 2 IN Dec. 840, affirmed by Atty Gen. (1947); Matter of J----, A-3192373 2 IN Dec. 892, affirmed by Atty Gen. (1947). In the instant case the respondent began living with his present wife in 1949. Since that time their relationship has been a faithful one and to all outward appearances they were considered as husband and wife. Pursuant to an order of this Board dated November 4, 1952, his marital status has been adjusted by a divorce obtained from his first wife and marriage to his present wife. By reason of such marriage, all the antenuptial incontinence and lapses from virtue were covered with oblivion. Glean v. Glean 70 A.D. 576, 75 N.Y.S. 622 (1902); People ex rel Cocuzza v. Cobb, 196 Misc. 961, 94 N.Y.S. (2) 616 (1950).
The record reflects that the respondent was never arrested for any crime. He has submitted affidavits of witnesses vouching for his good moral character. He first entered the United States as a seaman between 1921 and 1924 and has been sailing in and out of the country on many occasions until his last entry. He has registered under the Selective Training and Service Act of 1940.
Upon consideration of the entire record, we find that the respondent meets the statutory requirements for eligibility for voluntary departure under the Immigration Act of 1917, as amended. As a native and citizen of an adjacent island, he does not qualify for preexamination in the absence of a showing that his case is exceptionally meritorious. We do not feel that the record justifies such a finding. We will therefore grant him the privilege of voluntary departure alone. To insure compliance with the order, we will provide that deportation is to follow upon his failure to depart as required.
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 90 days, and under such conditions as the officer in charge of the district deems appropriate, conditioned upon consent of surety, if any.
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.