A-6371634
Decided by the Board November 17, 1953
Quota — Charge to be made against proper quota during fiscal year in which alien was admitted to United States — Section 13 (d) and (e) of the Immigration Act of 1924.
The discretion contained in section 13 (d) and (e) of the Immigration Act of 1924 may not be exercised in deportation proceedings to correct an entry in 1946 in possession of an immigration visa charged to the quota of the Soviet Union which should properly have been charged to the quota of Switzerland. The fact that the quota for Switzerland was open does not make the respondent admissible since a charge against the proper quota was never made and may not be made after the expiration of the fiscal year in which the alien was admitted to the United States.
CHARGES:
Warrant: Act of 1924 — Not of nationality as specified in visa. Act of 1924 — Visa procured by fraud or misrepresentation.
BEFORE THE BOARD
Discussion: This is an appeal from the order of the special inquiry officer finding respondent deportable on the charges stated above.
Deportation on the first charge is sought by reason of the fact that respondent should have been charged to the quota of Switzerland but was charged to that of the Soviet Union. We find this charge sustained.
Respondent was born in Switzerland on July 28, 1913. He was admitted to the United States for permanent residence on November 29, 1915. Respondent derived United States citizenship through the naturalization of his father in 1920. In 1931 he was taken to Russia by his parents. On June 22, 1931, his father became naturalized in the Soviet Union but neither respondent's mother nor respondent became Soviet citizens by reason of this naturalization. On February 20, 1936, the respondent applied for Soviet citizenship and obtained it. On October 7, 1946, he applied for a nonpreference quota immigrant visa. In his application he swore that he had been born in the United States and on the same date a nonpreference immigrant visa was issued to him and charged to the quota of the Soviet Union.
Since the respondent had been born in Switzerland, he was properly chargeable to the quota of that country (sec. 12 (a), Immigration Act of 1924). Section 13 (a) of the Immigration Act of 1924 provides that an immigrant who is not of the nationality specified in his visa shall not be admitted. The fact that the quota of Switzerland was open did not make him admissible since even in that event, a charge against the proper quota had to be made (sec. 13 (d) and (e) of the Immigration Act of 1924). Such charge was never made. It cannot be made after the expiration of the fiscal year in which the alien was admitted ( Matter of F----, 55, 942/463, 1 IN Dec. 84). Deportability on the first charge is clearly established.
The second charge will not be sustained. The special inquiry officer found the misrepresentation was innocent. It was not material since no advantage was gained by it. Under such circumstances, the charge is not sustained. Deportation will be ordered solely on the first charge stated above. We have considered other contentions advanced by counsel but find them without merit.
The application for suspension of deportation is denied on the basis of confidential information before us ( Matter of A----, A-6178382, 3 IN Dec. 714; United States ex rel Matranga v. Mackey, 115 F. Supp. 45 (D.C.S.D.N.Y., 1953). The appeal will be dismissed.
Order: It is ordered that the alien be deported from the United States in the manner provided by law on the charge that at time of entry he was an alien not of the nationality specified in the visa of his immigration visa.