E-094511.
Decided by Board March 24, 1955.
Section 212 (c) of Immigration and Nationality Act — Power of special inquiry officer to grant relief in deportation proceedings — 3 C.F.R. 242.61 (c).
In deportation proceedings brought under section 241 (a) (1) of the Immigration and Nationality Act by reason of alien's conviction of crime prior to entry, the special inquiry officer is empowered to grant relief under section 212 (c) of the Immigration and Nationality Act in view of the provision in 8 C.F.R. 242.61 (c) "The order of the special inquiry officer shall be * * * (5) that such other action be taken in the proceedings as may be required for the appropriate disposition of the case."
CHARGE:
Warrant: Section 241 (a) (1) — Act of 1952 — Excludable at time of entry — Convicted of crime prior to entry, to wit Petty Larceny.
BEFORE THE BOARD
Discussion: An order terminating the proceedings pursuant to a nunc pro tunc waiver of existing grounds of inadmissibility was entered by the special inquiry officer in the above-captioned case on April 30, 1954. The case has been certified under 8 C.F.R. 6.1 (c) for review of the special inquiry officer's decision.
The record relates to a native and citizen of Italy, male, married, 47 years of age, who last entered the United States at the port of Hidalgo, Texas, on November 18, 1951, and was admitted as a returning resident alien. He has been found subject to deportation on the charge stated above and no exceptions have been taken to this finding.
This Board last considered the case on October 27, 1953, and we were of the opinion that respondent should be afforded an opportunity to apply for discretionary relief under section 212 (c) of the Immigration and Nationality Act of 1952. We noted that respondent had resided in the United States since May 25, 1914; that he is married to a native-born citizen of the United States; that he is the father of five citizen children; and that it appeared that he had adequately rehabilitated himself. We remanded the case for further action looking to the grant of relief under section 212 (c) of the Immigration and Nationality Act of 1952.
When this Board originally considered the case on October 27, 1953, we noted the comments of the special inquiry officer in his decision of August 25, 1953, relative to his authority to enter an order exercising section 212 (c) relief under existing regulations. We remanded the case to permit application for this relief and to supplement the record pertinent thereto. The special inquiry officer in his opinion of April 30, 1954, considered the merits of respondent's application for a nunc pro tunc waiver of the grounds of inadmissibility existing at the time of respondent's last entry.
The question arises as to whether 8 C.F.R. 242.61 (c) includes within its scope authority for such action on the part of the special inquiry officer. We are of the opinion that it does. Section 242.61 (c) specifically mentions that the special inquiry officer has authority to enter orders granting discretionary relief in the form of suspension of deportation or voluntary departure in lieu of deportation. Category (5) of paragraph (c) provides that the special inquiry officer may take "such other action * * * in the proceedings as may be required for the appropriate disposition of the case." Whereas in the instant case the exercise of section 212 (c) relief is warranted, the action taken by the special inquiry officer fulfills the requirement of an "appropriate disposition of the case." After careful consideration of all the factors presented by the special inquiry officer in his opinion of April 30, 1954, the order entered will be amended.
Section 242.61 (c) of Title 8, C.F.R., reads:
(c) Order of special inquiry officer. The order of the special inquiry officer shall be (1) that the alien be deported, or (2) that the proceedings be terminated, or (3) that the alien's deportation be suspended, or (4) that the alien be granted voluntary departure at his own expense in lieu of deportation within such period of time or authorized extension thereof and under such conditions as the district director or officer in charge having administrative jurisdiction of the office in which the case is pending shall direct, with the further order that, if he fails to depart, he be deported, or (5) that such other action be taken in the proceedings as may be required for the appropriate disposition of the case * * *.
Order: It is ordered that the order entered by the special inquiry officer April 30, 1954, be and the same is hereby amended to provide:
It is ordered that pursuant to the discretion contained in section 212 (c) of the Immigration and Nationality Act the alien be considered as having been lawfully admitted to the United States for permanent residence at Hidalgo, Texas, on March 10, June 24, and November 18, 1951, notwithstanding his inadmissibility at that time as one who was convicted of a crime involving moral turpitude, to wit: Petty Larceny (1931 and 1932), subject to revocation in the discretion of the Attorney General after hearing if the alien subsequently commits any offense.It is further ordered that the amended order be and the same is hereby affirmed and the proceedings terminated.