5906963
Decided by Board December 19, 1945. Approved by Attorney General January 7, 1946. Memorandum of Central Office August 12, 1946. Decided by Board February 26, 1947.
Suspension of deportation — Section 19 (c) (2) of the Immigration Act of 1917, as amended — Withdrawal of case from Congress after its adjournment.
Where suspension of deportation (section 19 (c) (2) of the Immigration Act of 1917, as amended) was ordered on December 19, 1945, by the Board and approved by the Attorney — General on January 7, 1946, the case being reported on February 15, 1946 to Congress which took no adverse action and which adjourned on August 2, 1946, the suspension became final on August 2, 1946, and it was no longer possible for the Attorney General to withdraw the case from Congress and to reopen it, as recommended by this Service on August 12, 1946.
CHARGES:
Warrant: Act of 1924 — Remained longer, visitor.
Lodged: Act of 1924 — Failed to maintain exempt status — Employee of Government official.
BEFORE THE BOARD
(December 19, 1945)
Discussion: The Presiding Inspector, after hearing under the warrant of arrest, finds that the respondent is subject to deportation on the charge lodged at the hearing, and recommends suspension of deportation. Respondent is a native and citizen of Hungary, 33 years old. His only entry into the United States occurred at the port of New York in April 1940, when he was admitted for 6 months under a section 3 (1) visa, as the employee of a man who had the concession from the Hungarian Government to operate the restaurant in the Hungarian Pavilion at the World's Fair. He relinquished the status under which he was admitted in November 1940 when the World's Fair closed.
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the respondent is an alien, a native and citizen of Hungary;
(2) That the respondent last entered the United States at the port of New York in April 1940;
(3) That at the time of his entry respondent was admitted as an employee of a foreign government official, to work at the New York World's Fair for a period of 6 months;
(4) That respondent terminated his employment in November 1940, when the World's Fair closed.Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under sections 14 and 15, Immigration Act of 1924, respondent is subject to deportation on the ground that he has remained in the United States after failing to maintain the exempt status under which he was admitted of an employee of a Government official;
(2) That under sections 14 and 15, Immigration Act of 1924, respondent is not subject to deportation on the ground that after admission as a visitor, he has remained in the United States for a longer time than permitted by said act or regulations made thereunder;
(3) That under section 20 of the Immigration Act of 1917, as amended, the respondent is deportable to Hungary, at Government expense.Suspension of Deportation — Factors: The alien has formally applied for suspension of deportation under section 19 (c) (2) of the Immigration Act of 1917, as amended.
In April 1942 the alien was married to a native-born citizen of the United States and he and his wife have become the parents of a child born in this country in August 1942. Respondent is employed as a restaurant manager and earns $40 a week. His wife has employment at $25 a week as an investigator for her father's chain stores and she and the child have an income of $800 a year from her mother's estate. The wife has two children by a previous marriage who live with their father, and she has turned over her former home and other property as an irrevocable trust fund for their support. If the alien were deported the wife would be compelled to give up her home and rely on the support of her father. The alien has assets of $1,000 in the United States, consisting of furniture and personal effects.
We think the evidence satisfactorily establishes that the alien's deportation would result in a serious economic detriment to his citizen wife and child.
The Federal Bureau of Investigation has no criminal record of the alien. An independent character investigation conducted by the Immigration and Naturalization Service satifactorily esstablishes that the alien has been a person of good moral character for the past 5 years. This is further supported by sworn statements of persons well acquainted with the alien.
The alien is a person of the white race and is not ineligible to naturalization in the United States, nor is the alien subject to deportation under any provision of law mentioned in section 19 (d) of the Immigration Act of 1917, as amended.
Suspension of Deportation — Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the alien is a person of the white race and is eligible for naturalization in the United States;
(2) That the alien has been of good moral character for the preceding 5 years;
(3) That deportation of the alien would result in serious economic detriment to his citizen wife and child;
(4) That after full inquiry, no facts have been developed which would indicate that the alien is deportable under any of the provisions of law specified in section 19 (d) of the Immigration Act of 1917, as amended.Suspension of Deportation — Conclusion of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That the alien is eligible for suspension of deportation under the provisions of section 19 (c) (2) of the Immigration Act of 1917, as amended.Order: It is ordered that deportation of the alien be suspended under the provisions of section 19 (c) (2) of the Immigration Act of 1917, as amended.
As the case involves suspension of deportation of an alien pursuant to the provisions of section 19 (c) (2) of the Immigration Act of 1917, as amended, in accordance with the provisions of title 8, section 90.12, Code of Federal Regulations, the Board refers the case to the Attorney General for review of its decision.
The findings of fact, conclusions of law and order of the Board of Immigration Appeals suspending the deportation of the respondent under the provisions of section 19 (c) of the Immigration Act of 1917, as amended, are hereby approved and adopted.
Discussion: This case relates to a 34-year-old male, native and citizen of Hungary, who last entered the United States in April 1940. On December 19, 1945; the Board of Immigration Appeals considered this case and found the respondent deportable on the lodged charge, but directed that his deportation be suspended under the provisions of section 19 (c) (2) of the Immigration Act of 1917, as amended. This order was approved by the Attorney General on January 7, 1946.
On July 2, 1946, the alien's wife appeared before an officer of this Service at New York and made a sworn statement tending to impeach the good moral character and loyalty of her husband. She claims that they have been separated since October 1945, that prior to their separation, she suffered numerous beatings at his hands, that the alien does not support herself or their child, that he was recently convicted of a gambling offense, and that he had been pro-Nazi in his beliefs. She also claims that her favorable testimony at the warrant hearing was induced through fear of bodily harm if she were to testify against her husband. On July 3, 1946, the alien made a sworn statement in which he substantially denied all of the allegations made by his wife, except as to the gambling offense, and in turn uttered recriminations against his wife.
The allegations by the alien's wife are serious, and if proved, would not entitle him to discretionary relief. In the light of these developments, it is believed that this case should be reconsidered and proceedings reopened.
Recommendation: It is recommended that the order of the Board of Immigration Appeals dated December 19, 1945, directing suspension of deportation in the case of this alien, be withdrawn.
It is further recommended, That appropriate action be taken to have this case withdrawn from consideration before Congress.
It is further recommended, That thereafter these proceedings be reopened for further testimony by the respondent and his wife, and for other appropriate evidence affecting the alien's eligibility for discretionary relief, and for such further action as the circumstances may then warrant.
This case is submitted to the Board of Immigration Appeals under part 90, title 8, Code of Federal Regulations.
Discussion: The alien is a native and citizen of Hungary. On December 19, 1945, this Board found him subject to deportation on the charge lodged at the hearing, but ordered that his deportation be suspended under section 19 (c) (2) of the Immigration Act of 1917. This order was approved by the Attorney General on January 7, 1946.
Early in July 1946 the alien's wife made a sworn statement in which she claimed that subsequent to the deportation hearing, the alien had ceased to support her or their child. The following day the alien also made a sworn statement in which he substantially denied the charges of his wife. The Central Office states that if the wife's charges are true, the respondent would not be entitled to discretionary relief. It recommends that the order of this Board granting suspension be rescinded, that the case be withdrawn from Congress, and that the hearing be reopened.
The decision of the Central Office is dated August 12, 1946. Section 19 (c) of the Immigration Act of 1917, as amended, provides that the Attorney General may suspend deportation if he makes certain findings, and continues:
If the deportation of any alien is suspended under the provisions of this subsection for more than 6 months, all of the facts and pertinent provisions of law in the case shall be reported to the Congress with the reasons for such suspension. These reports shall be submitted on the 1st and 15th day of each calendar month in which Congress is in session. If during the session of the Congress at which a case is reported, or if a case is reported less than 30 days prior to the close of the session, then during the next session of the Congress, the two Houses pass a concurrent resolution stating in substance that the Congress does not favor the suspension of such deportation, the Attorney General shall thereupon deport such alien in the manner provided by law. If during the session of the Congress at which a case is reported, or if a case is reported less than 30 days prior to the close of the session, then during the next session of the Congress, the two Houses do not pass such a resolution, the Attorney General shall cancel deportation proceedings upon the termination of such session, * * *
The foregoing provides, briefly, that if the Attorney General reports a suspension case to Congress more than 30 days prior to the close of a session, the suspension shall become final when that session terminates, if Congress takes no adverse action. The Attorney General reported the suspension to Congress on February 15, 1946, and Congress took no adverse action. We think that when Congress adjourned on August 2, 1946, the suspension became final and it was no longer possible for the Attorney General to withdraw the case. Congress adjourned sine die on August 2, 1946, pursuant to H. Con. Res. 165, 92 Cong. Rec. 10920, 10859, 10883. We think that this adjournment was the "termination of such session" within the meaning of section 19 (c). Adjournment sine die is the modern form of closing a session of Congress. After such an adjournment, Congress can assemble again, prior to the date of the next regular session, according to our Constitution, only at the call of the President. If subsequent to an adjournment sine die, the President convenes Congress, it is a new session. Jefferson's Manual of Parliamentary Practice, regarded as authoritative by both Houses of Congress in determining their rules, states:
House Manual, 78th Cong. 2d sess., House Doc. No. 810 (1945), sec. 591.
Under art. II, sec. 3, the President "may, on extraordinary occasions convene both Houses, or either of them * * *". It is by the exercise of this power that Congress ordinarily holds a special session.
Congress separates in two ways only, to wit, by adjournment, or dissolution by the efflux of their time. What, then, constitutes a session with them? A dissolution certainly closes one session, and the meeting of the new Congress begins another. The Constitution authorizes the President "on extraordinary occasions to convene both Houses, or either of them". I. 3. If convened by the President's proclamation, this must begin a new session, and of course determine the preceding one to have been a session. [Italics supplied.]
House Manual, supra, note 1, sec. 590, also appearing in the Senate Manual, 78th Cong., 2d sess., Sen. Doc. No. 225 (1944).
Congressional parliamentarians regard an adjournment sine die as closing the session of Congress. That was the form used when the Vice President declared the end of a special session on December 1, 1913, at the hour when the next regular session was scheduled, under the Constitution, to begin. A resolution authorizing the President of the Senate and the Speaker of the House "to close the present session by adjourning their respective Houses" on a specified date and hour is referred to as an adjournment sine die.
Note 4 supra, 821.
We may also cite the following statement by the compiler of Precedents of the Senate:
When the two Houses adjourn for more than 3 days, and not to or beyond the period fixed by the Constitution or law for the beginning of the next regular session, the session is not thereby terminated, but continues to be the same session of that particular Congress until an adjournment without day, or until the time arrives for the beginning of the next regular session. [Italics supplied.]
Gilfry refers to art. I, sec. 5 of the Constitution, which provides that neither House shall adjourn for more than 3 days without the consent of the other. Congress has sometimes adjourned for more than 3 days over the Christmas holidays, and this is not regarded as closing the session. But in those instances the adjournment was to a fixed date. See 5 Hinds' Precedents of the House of Representatives (1907) sections 6676, 6677.
We conclude, therefore, that on August 2, 1946, the session of Congress terminated and, therefore, respondent's suspension of deportation became final, subject only to the condition subsequent that the alien pay $18 head tax. The Central Office memorandum recommending withdrawal of the case from Congress is dated August 12, 1946. At that time, however, it was no longer possible to withdraw the case.
Order: It is ordered that no change be made in the outstanding order in the case.