A-6549284
Decided by the Central Office June 2, 1954
Permission to reapply — Section 212(a)(17) of the Immigration and Nationality Act — Factors to be considered.
Permission to reapply for admission after arrest and deportation is not granted unless (1) unusual hardship would result to persons lawfully in the United States if the application should be denied, or (2) there is need for the services of the applicant in the United States, or (3) the applicant is a bona fide crewman who has no means of earning his livelihood other than by pursuing such calling, which necessitates his coming to the United States, or (4) it is necessary for the applicant to enter the United States frequently across the international land border to purchase the necessities of life or in connection with the business in which he is engaged or for some other urgent reason. In addition it must be found that the alien is presently admissible to the United States and that the fraud perpetrated upon the government is not a bar to his readmission.
BEFORE THE CENTRAL OFFICE
Discussion: This record relates to a 43-year-old native and citizen of Mexico who was permitted to depart voluntarily from the United States on March 30, 1953, under a warrant of deportation issued March 5, 1953, containing the charge that at the time of his entry into the United States at El Paso, Tex., on January 10, 1947, he was not entitled under the Immigration Act of 1924 to enter the United States for the reason that the immigration visa which he presented was not valid because procured by fraud or misrepresentation. His application for consent to reapply for admission after arrest and deportation was denied by the district director of the Service at Los Angeles, Calif., on August 20, 1953, for the reason that he is inadmissible to the United States as an alien who has procured a visa by fraud or by willfully misrepresenting a material fact. From that decision he has taken this appeal.
The evidence of record upon which the deportation charge was based establishes the following facts: The alien was married on April 14, 1936, in Mexico to one R---- P----. Two children were born of that marriage. The alien and R---- P---- were divorced in Mexico on August 7, 1953. During a previous stay in the United States in 1944 and 1945 the alien lived with one T---- B---- N---- by whom he had one illegitimate child and while in the United States again in 1946 he went through a marriage ceremony with T---- B---- N---- at Los Angeles, Calif., on June 27, 1946. On January 6, 1947, he obtained a nonquota immigrant visa at the American Consulate in San Luis Potosi, Mexico, under the provisions of section 4(c) of the Immigration Act of 1924. In his application for the visa he represented that he was married to T---- B---- N---- but omitted the fact that his prior marriage had not been terminated and that he was the father of at least three children. The hearing officer found the deportation charge sustained and it was sustained subsequently by the central office and the Board of Immigration Appeals.
The alien now requests consent to reapply for admission to the United States after arrest and deportation in order that he may reenter the United States, remarry T---- B---- N---- now that he is free to do so, legitimize their children, and thereafter remain in the United States to provide for their support.
In considering the cases of persons deported from the United States the Congress passed the act of March 4, 1929, which barred the return to the United States forever of all persons arrested and deported in pursuance of law. This act was amended on June 24, 1929, by the addition of a proviso making it inapplicable to any alien arrested and deported before March 4, 1929, in whose case, prior to reembarkation at a place outside the United States or application in foreign contiguous territory for admission to the United States, and prior to March 4, 1929, permission to reapply for admission had been granted by the proper authority. Recognizing that this was a very harsh act and that cases might arise in which an unjustified hardship would be worked upon persons in the United States if the deported aliens were not permitted to return to this country, the Congress again amended the act on May 25, 1932, to provide that such a person might not reenter the United States within 1 year after arrest and deportation, and after the expiration of 1 year only if granted permission to reapply by the appropriate authority. These provisions relating to consent to reapply for admission have been carried over into the Immigration and Nationality Act with one change — that the alien may be granted consent to reapply and may reapply for admission at any time after deportation.
In carrying out the intent of Congress as expressed by the act of March 4, 1929, as amended, and the Immigration and Nationality Act, the Service denies permission to reapply for admission to the United States after arrest and deportation in all cases unless it appears that (1) unusual hardship would result to persons lawfully in the United States if the application should be denied, or (2) there is need for the services of the applicant in the United States, or (3) the applicant is a bona fide crewman who has no means of earning his livelihood other than by pursuing such calling, which necessitates his coming to the United States, or (4) it is necessary for the applicant to enter the United States frequently across the international land border to purchase the necessities of life or in connection with the business in which he is engaged or for some other urgent reason.
In the consideration of cases falling within the above categories, two other factors must be weighed, the alien's admissibility to the United States, and whether the fraud perpetrated on the Government is a bar to his readmission. Notwithstanding the contention of the alien's attorney in his brief that there was no willful or knowing attempt to commit fraud or mislead the American consular officer at the time the alien obtained his immigrant visa, the fact remains that he was found deportable and deported on the charge that the visa which he presented was not valid because procured by fraud or misrepresentation. The alien has also admitted committing acts which constitute the essential elements of a crime involving moral turpitude, to wit, bigamy. It appears, therefore, that he is presently excludable from the United States under the provisions of sections 212(a)(9) and 212(a)(19) of the Immigration and Nationality Act.
Upon consideration of the entire record and the attorney's brief, it is concluded that no purpose would be served were consent to reapply for admission after deportation granted in this case since the grant of such consent would not remove the bar to the alien's admission to the United States.
Order: It is ordered that the appeal from the district director's decision denying consent to reapply for admission to the United States after arrest and deportation be, and the same is hereby, dismissed.