A-6045024
Decided by Board February 21, 1949
Suspension of deportation — Section 19 (c) (2) of the Immigration Act of 1917, as amended — Discretion.
The privilege of suspension of deportation under the provisions of section 19 (c) (2) of the Immigration Act of 1917, as amended, is not precluded for failure to establish good moral character during the preceding five years because of false claims to citizenship uttered prior to the institution of deportation proceedings, where amends were made, the acts involved were similar and in a series (with each succeeding false claim being uttered merely to conceal previous statements) and so constituted a "single" lapse; and though the alien's conduct otherwise could not be characterized as "excellent," his record was otherwise sufficiently favorable so as not to warrant the imposition of hardship on the alien's citizen wife and 4-year-old daughter by precipitating the breaking up of the family.
CHARGES:
Warrant: Act of 1924 — Remained longer, visitor.
Lodged: Act of 1924 — No immigration visa.
BEFORE THE BOARD
(February 21, 1949)
Discussion: This case is before us on appeal from an order of the Acting Assistant Commissioner dated September 15, 1948, denying suspension of deportation and voluntary departure.
Respondent, a native and citizen of Canada, was born December 23, 1915. He claims that his first entry into the United States was in 1932 and that he has lived here continuously since 1934; his alleged last entry (with intent to remain here permanently) was about July 15, 1938, as an American citizen by automobile after an absence of one day in Canada. He married a United States citizen in Illinois in 1937 and now has a 4-year-old citizen daughter. Respondent registered under the Selective Training and Service Act in Chicago in 1940 and claimed birth in Kentucky. Respondent registered as a United States citizen in 1943 in San Francisco and voted in the 1944 national election as an American citizen although he knew at the time of registration and voting that he was an alien. Respondent states that he voted in 1944 because his union required its members to vote and a failure to do so would have barred him from further payment of dues and membership. On October 31, 1944, respondent moved to correct his false claims to United States citizenship by informing the San Francisco office of the Federal Bureau of Investigation of the misstatement regarding his birthplace; he likewise informed the Immigration Service, stating that having become conscious of the misdeed he wanted to atone for it.
The evidence of record sustains the lodged charge, for the respondent at the time of his last entry was an immigrant not in possession of a valid immigration visa, as required by sections 13 and 14 of the Immigration Act of 1924.
Discussion as to Eligibility for Suspension of Deportation:
Before discretionary relief will be granted by suspension of deportation, the respondent must appear to be a person of good moral character during the past 5 years and it must appear that such deportation of the respondent will result in serious economic detriment to his citizen wife and child (sec. 19 (c) of the Immigration Act of 1917, as amended). In this case, the effect of the respondent's false claims to citizenship upon a possible finding of good moral character must be considered.
While this Board has denied suspension in the case of an alien falsely and knowingly claiming citizenship after institution of deportation proceedings ( Matter of W----, 55933/565, Sept. 24, 1943), it has held suspension proper where an alien claimed citizenship in applying for a job and registering for selective service ( Matter of B----, 6033312, affirmed by Attorney General Sept. 16, 1947). In the instant case, the false statements (uttered prior to the institution of present proceedings) leading to respondent's voting appear to have been prompted by a fear that he would otherwise lose his job. In the B---- case it was stated that the granting of suspension was merited in the case of an alien whose record is excellent save for false claims of citizenship. In this connection, counsel states in his brief:
It may not be entirely accurate to state that the appellant's record is excellent but taken generally, it seems to comprise a record of what most American communities would find to be reasonably normal activities and behavior without any serious transgressions of morality, decency or law. He has not acquired a criminal record of any kind, has supported his family, worked steadily and maintained the respect of his friends, associates, and employers. No more is asked of members of our community to qualify them as normally worthy and of satisfactory reputation.
Upon a number of occasions this Board has spoken regarding the character which an alien must possess in order to be granted administrative relief. In the Matter of K----, 6092065 (Nov. 3, 1947), we stated: "While we do not condone respondent's illegal actions in misrepresenting himself as a citizen, we nevertheless do not think that he is precluded from establishing his good moral character." The illegal actions involved therein were false claims of citizenship in obtaining employment, in draft registration, and in registering to vote, for which the alien was convicted of violating section 746 (a), title 8, U.S.C., granted a suspended sentence and placed on probation. We have also stated in Matter of P----, 4383150 (Nov. 17, 1947), that "The general tendency has been not to construe good moral character to mean moral excellence, nor to hold that it is destroyed by a single lapse. It is relative and measured by considering the particular person's actions generally and the regard in which he is held by the community as a whole." Since the acts involved in the instant case are similar and in a series (with each succeeding false claim being uttered merely to conceal previous statements), respondent may be regarded as being guilty in fact of but one such lapse, for which he has made amends.
Counsel for respondent further states:
On the basis of the foregoing, it is earnestly recommended that the Board find the appellant entitled to suspension of deportation. He has realized his errors and their gravity and is attempting to right the wrong. Not only his failure, but that of his wife and child hinge upon the decision and there is much to commend him for the privilege he seeks. Steadily employed, a dependable provider, generally obedient to our laws, he has compiled a record that does not label him a threat to our moral standards if he is permitted to remain in the United States.
In addition to all the above stated factors, affidavits of character have been submitted by respondent in which his business associates state that he is a capable and efficient worker; an independent character investigation conducted by the Immigration and Naturalization Service revealed that he is a person of good character who is loyal to the United States and a good worker. Respondent's wife in testifying in his behalf stated that in spite of occasional differences they have never been separated and that he has always supported her and been a faithful husband. She also states that if respondent is deported, she will remain in the United States because of her attachment to her citizenship and country, thus precipitating the breaking up of the family. To impose such hardship on respondent's wife and child when the law does not so require would, we think, be inconsistent with congressional policy as set forth in section 19 (c) of the act of February 5, 1917, as amended. We think that because of the unusual circumstances in this case, suspension of deportation is the proper solution.
Suspension of Deportation — Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the alien is not ineligible 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 wife and infant daughter, native-born citizens of the United States:
(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.
It is further ordered that the order entered by the Acting Assistant Commissioner on September 15, 1948, be and the same is hereby withdrawn.
It is further ordered that if during the session of Congress at which this case is reported, or prior to the close of the session of Congress next following the session at which this case is reported, the Congress passes a concurrent resolution, stating in substance that it favors the suspension of such deportation, the proceedings be canceled upon the payment of the required fee and that the alien, a nonquota immigrant, be not charged to any quota.