55942/463
Decided by the Board May 7, 1941. Approved by the Attorney General.
Denaturalization — Effect on immigration status of wife admitted as nonquota immigrant.
When an alien is admitted under section 4 (a) of the Immigration Act of 1924 as a nonquota immigrant being the wife of a naturalized citizen, the subsequent cancellation of her husband's citizenship on the ground of fraud does not affect her immigration status in the absence of evidence to establish that naturalization was obtained for the purpose of procuring the alien's admission or that the alien was a party to the fraudulent naturalization.
CHARGE:
Warrant: Act of 1924 — Immigrant without an immigration visa.
Mr. Morris F. Moore, of West Chester, Pa., for the respondent.
Mr. Albert E. Reitzel, for the Immigration and Naturalization Service.
Mr. Anthony L. Montaquila, Board attorney-examiner.
BEFORE THE BOARD
STATEMENT OF THE CASE: This case relates to a native and citizen of Poland, aged 35, who last entered the United States at the port of New York ex-S.S. Polonia on November 26, 1928, on which occasion she was admitted for permanent residence upon presentation of a nonquota immigration visa issued to her under the provisions of section 4 (a) of the Immigration Act of 1924 as the wife of a naturalized citizen of the United States.
Deportation proceedings were instituted February 26, 1937, on the ground that she was not a nonquota immigrant as specified in the immigration visa in question. The evidence adduced disclosed that her husband was smuggled into the United States during 1920, residing here until 1928 when he returned to Poland. While in this country he became naturalized as a citizen of the United States under the name of D---- F----, which naturalization occurred on May 29, 1928, and was predicated upon a fraudulent certificate of arrival obtained through fraud and for which the sum of $400 was paid. In the deportation proceedings against the subject's husband he admitted unlawful residence in the United States at the time of naturalization and also admitted commission of the offense of perjury in connection with his petition for naturalization.
The record indicates that the subject was married on July 15, 1928, and that her husband thereafter petitioned for the granting to her of a nonquota status in the issuance of an immigration visa as the wife of an American citizen. His certificate of naturalization was canceled on January 21, 1937.
DISCUSSION: In reconsidering this case, this Board concludes that although proceedings were instituted prior to the promulgation of Circular Letter No. 207, the matter should nevertheless at this time be disposed of in accordance with the provisions thereof. Circular Letter No. 207, referred to, provides as follows:
Hereafter warrants of arrest will not issue in cases involving aliens who were admitted to the United States as the wives or minor children of naturalized citizens under the provisions of section 4 (a) of the act of 1924, and wherein the naturalization certificate of the husband or parent has been canceled subsequent to such admissions, and warrants now outstanding in such cases will be canceled. This, however, does not apply to cases where it can be established that the naturalization of the husband or parent was obtained for the purpose of procuring the admission to this country of such relative or relatives, or that the aliens involved were a party to or had knowledge of the fraudulent naturalization of the husband or parent.
Children who have been admitted to the United States during their minority, under conditions prescribed in the first paragraph hereof, are to be advised that in view of the cancellation of the father's certificate of naturalization they cannot derive citizenship by virtue of their father's naturalization, but they may, if they so desire, apply for citizenship in their own right under the general requirements of existing law. Where the alien involved elects to proceed to citizenship in his own right, a certificate of arrival will be furnished, the court before which the naturalization proceedings are to be held to be fully advised by the appropriate naturalization examiners as to the circumstances under which the aliens were admitted.
The principal attorney for the Immigration and Naturalization Service contends that although the proposed order is satisfactory as far as it goes the alien nevertheless should be required to comply with the requirements of the immigration law as nearly as it is possible for her to do so. He suggests that this action can be accomplished by applying thereto the provisions of subdivisions (d) and (e) of section 13 of the Immigration Act of 1924, and charging her as a quota immigrant to the Polish quota for the current fiscal year. These subdivisions provide as follows:
(d) The Secretary of Labor [now the Attorney General] may admit to the United States any otherwise admissible immigrant not admissible under clause (2) or (3) of subdivision (a) of this section, if satisfied that such inadmissibility was not known to, and could not have been ascertained by the exercise of reasonable diligence by, such immigrant prior to the departure of the vessel from the last port outside the United States and outside foreign contiguous territory, or, in the case of an immigrant coming from foreign contiguous territory, prior to the application of the immigrant for admission.
(e) No quota immigrant shall be admitted under subdivision (d) if the entire number of immigration visas which may be issued to quota immigrants of the same nationality for the fiscal year has already been issued. If such entire number of immigration visas has not been issued, then the Secretary of State, upon the admission of a quota immigrant under subdivision (d), shall reduce by one the number of immigration visas which may be issued to quota immigrants of the same nationality during the fiscal year in which such immigrant is admitted; but if the Secretary of State finds that it will not be practicable to make such reduction before the end of such fiscal year, then such immigrant shall not be admitted.
The principal attorney is of the opinion that the language of the statute as quoted is broad enough to permit and require that the alien be charged to the quota for the current fiscal year.
Clause (3) referred to in subdivision (d) of the 1924 Immigration Act, applicable hereto, is found in section 13 (a) of said act and provides that no alien shall be admitted to the United States unless he —
Is a nonquota immigrant if specified in the visa in the immigration visa as such;
This Board takes the position that the discretion contained in subdivisions (d) and (e) applies only to exclusion cases. The principal attorney apparently does not agree with this view, and his suggestion necessarily implies a reduction in the quota in this case for the current fiscal year for an entry that occurred during 1928. This action is not permissible. The 1924 act contemplates quota allotment as of the year of entry — not any succeeding year. The decision of this Board is based on a departmental policy as enunciated in Circular Letter No. 207, dated December 18, 1937. That policy was adopted after a full consideration of the entire problem. It has been consistently applied for more than 3 years last past. The Board believes that this position is fair and just. It sees no reason why this longstanding policy should be changed. The suggestion of the Service attorney carries the necessary connotation that if a quota number is not available deportation must follow. This would be destructive of the policy of Circular Letter No. 207.
In view of the disagreement of the principal attorney in this case, solely with the basis for canceling this proceeding, the matter should be referred to the Attorney General for review of the decision of the Board of Immigration Appeals.
ORDER: It is ordered that the warrant of arrest dated February 26, 1937, the order of deportation dated April 28, 1937, and warrant of deportation predicated thereon dated June 4, 1937, insofar as they relate to this particular alien, be canceled, in view of the provisions of Circular Letter No. 207, dated December 18, 1937.
The foregoing decision and order of the Board were certified to and approved by the Attorney General.