A-4605059
Decided by Board February 24, 1953
Seventh proviso — Section 3 of the 1917 Immigration Act — Conditioned upon alien not thereafter committing any crime — Revocation not necessary where another entry made subsequent to grant of that relief — Continuing effect of seventh proviso waiver.
(1) Though seventh proviso waiver granted by the Board August 20, 1942, is subject to revocation by reason of the fact that the alien has committed a crime subsequent to his last entry, such proceeding is not necessary because respondent made another entry since 1942.
(2) Where this discretion has been invoked in a particular case, it applies only to the single entry involved unless the order clearly specifies that it is to cover more than one entry or unless the grant is sufficiently broad to cover future entries.
CHARGES:
Warrant: Act of 1917 — Admits crime prior to entry — Simple larceny.
Act of 1917 — Convicted of crimes prior to entry — Simple larceny and larceny in a store.
BEFORE THE BOARD
Discussion: This case is before us for approval of an order entered by the hearing officer June 9, 1952, terminating the within proceedings on the basis of an order entered by this Board August 20, 1942, wherein we directed that the respondent's admission at Detroit, Mich., as of June 7, 1942, be authorized nunc pro tunc, on condition that he shall not thereafter commit a crime, either State or Federal.
The respondent, a native and citizen of England, male, 64 years of age, was admitted to the United States for permanent residence February 12, 1912, and has resided in this country continuously since his admission. He last entered at the port of Detroit on or about February 3, 1952, after a visit of a few hours in Canada and on this occasion presented a resident alien's border crossing identification card.
When we adjusted the respondent's status in 1942 we noted that the two offenses which served as the basis for the respondent's deportability on criminal charges had been committed more than 7 years prior to the time we adjudicated the case. The record at that time also showed the respondent had been a law abiding person during the intervening period; that his trade as a tool and die maker was valuable to the war effort and that deportation could not be effected readily because of the war. The order entered by us permitting the respondent's continued lawful residence in the United States despite his criminal offenses was subject to the condition that he shall not hereafter commit a crime, either State or Federal.
The record establishes that the respondent on February 27, 1952, was placed on 1 year's probation following his plea of guilty in the Recorders Court at Detroit to a charge of simple larceny, committed February 9, 1952, approximately 6 days after his last entry into the United States. The hearing officer in his opinion noted that the order of this Board entered August 20, 1942, is silent as to whether a revocation of seventh proviso relief would result only after due hearing and consideration by the Board, or whether such revocation would automatically result upon the commission by the alien of a State or Federal offense. The hearing officer supports his action terminating the proceedings on the assumption that a waiver under the seventh proviso has a continuing effect and covers each and every entry of an alien subsequent to such authorization, providing, the waiver is not limited to a single entry.
The opinion of the hearing officer that a waiver by an exercise of the seventh proviso has a continuing effect and covers each and every entry of an alien, subsequent to the original exercise, providing the waiver is not limited to a single entry, is not supported by prior decisions of this Board in analogous cases. We had under consideration in the Matter of G---- A-3934172, B.I.A. July 10, 1946, approved Atty.Gen., July 18, 1946, the case of an alien who had proceeded to Montreal, Canada, to obtain a visa for permanent residence and in whose behalf an advance exercise of the seventh proviso had been granted. The alien made arrangements to visit Montreal for one day, obtain his visa and return to a small town just across the border in New York State to spend the night with a friend. He left his baggage with his friend on the trip to Montreal. When he applied for the visa at Montreal on the day in question he was advised by the consul to return the next day. He then returned to New York State to spend the night with his friend. When he reappeared the next day at Montreal the consul refused the visa apparently on the ground that the alien having departed from the United States in compliance with an order granting him voluntary departure together with an advance exercise of the seventh proviso, his entry at Champlain, N.Y., when he returned to spend the night in the States, executed the grant of the discretion authorized in the seventh proviso inasmuch as seventh proviso relief was granted for but one entry. The alien was excluded by a board of special inquiry when he sought to return to the United States on the second occasion. The board entered an order affirming his exclusion on both documentary and criminal grounds without prejudice to reapplication within 1 year. We also again exercised the discretion contained in the seventh proviso to enable the alien to obtain the visa denied him by the consul.
We find other cases wherein the action taken indicates that once the discretion has been invoked in a particular case it applies only to the single entry involved unless the order clearly specifies that it is to cover more than one entry or unless the grant is sufficiently broad to cover future entries. We do not find this to be the case in the order entered by us on August 20, 1942. The fact that the respondent has committed a crime subsequent to his last entry does subject him to revocation proceedings insofar as our original order of August 20, 1942, is concerned. Such a proceeding, however, is unnecessary for the reason that respondent has made another entry since 1942.
Upon careful consideration of all the evidence of record including the fact that respondent has as recently as February 9, 1952, again been found guilty of simple larceny, the Board makes the following:
Findings of Fact:
(1) That respondent is an alien, a native and citizen of England;
(2) That respondent on December 15, 1934, in recorders court, city of Detroit, was convicted on a plea of guilty, for the crime of simple larceny and sentenced to pay a fine and costs;
(3) That respondent on March 7, 1935, in the same court, was convicted on a charge of larceny from a store and sentenced to serve a prison term;
(4) That respondent last entered the United States at Detroit, Mich., on or about February 3, 1952, with a resident alien's border crossing identification card.Conclusions of Law:
(1) That under section 19 of the act of February 5, 1917, the respondent is deportable on the ground that he admits having committed a felony or a crime or misdemeanor involving moral turpitude prior to entry to the United States, to wit: Simple larceny;
(2) That under section 19 of the act of February 5, 1917, the respondent is deportable on the ground that he has been convicted of a felony or other crime or misdemeanor involving moral turpitude prior to entry into the United States, to wit: Simple larceny and larceny from a store;
(3) That, under section 20 of the Immigration Act of February 5, 1917, as amended, the respondent is deportable from the United States.Order: It is ordered that the alien be deported from the United States pursuant to law on the charges stated in the warrant of arrest.