A-3401825
Decided by Board March 2, 1956
Permission to return to unrelinquished domicile — Section 212 (c) of Immigration and Nationality Act.
An alien lawfully admitted to the United States for permanent residence on December 22, 1945, who was convicted on February 27, 1950, of shoplifting and who suffered an attack of insanity in 1950, was inadmissible to this country at the time of her readmission with a reentry permit on March 3, 1952. Her status at that time could not have been adjusted under the Seventh Proviso to section 3 of the Immigration Act of 1917, as she did not then have seven years' residence in the United States. Nor can section 212 (c) of the Immigration and Nationality Act now be exercised on her behalf with respect to any subsequent reentry, since the alien no longer had a lawful domicile in the United States after March 3, 1952. ( Matter of S----, E-094710, 6 IN Dec. 392, distinguished.)
BEFORE THE BOARD
Discussion: This matter is before us on appeal from a decision of the district director on October 17, 1955, denying the application for advance exercise of discretionary relief under section 212 (c) of the Immigration and Nationality Act.
The appellant is a 54-year-old female, native of Haiti and citizen of the Dominican Republic. She was lawfully admitted to the United States for permanent residence on December 22, 1945. On February 27, 1950, she was convicted in New York City of shoplifting and was fined $150. On May 10, 1950, she was admitted to the Rockland State Hospital of New York and subsequently her illness was diagnosed as involutional psychosis, melancholia. She was placed on convalescent status on March 13, 1951. On November 5, 1951, she secured a reentry permit for travel to France and Belgium and she was readmitted to the United States on March 3, 1952, upon presentation of the reentry permit.
The appellant departed again on May 27, 1952, for medical treatment in a sanitarium in Cuba and for the purpose of visiting friends there and in Ciudad Trujillo, Dominican Republic. The appellant stated in an affidavit that she was discharged from the sanitarium as cured in November 1952, and thereupon desired to continue with her journey to the Dominican Republic after which she intended to return to New York. Because of a misunderstanding between the airline and her husband, she missed the plane she originally was to take and it was then suggested that she proceed to the Dominican Republic via Miami, Florida. She did not have a visa and the airline intended that she be admitted under the "continuous transit" arrangement.
The New York adjudicator's report contains the statement that on or about November 11, 1952, the appellant was accorded a hearing before a board of special inquiry, and that a class "A" medical certificate was issued by the United States Public Health Service certifying her as being insane. From information which this Board subsequently obtained from the Miami office of the Service, it appears that no hearing before a board of special inquiry was accorded to her, it being stated that summary exclusion was mandatory under the "continuous transit" arrangement. There are other references to the class "A" medical certificate but the certificate itself does not appear to be in the file. We note that during a hearing before a board of special inquiry on November 12, 1952, in the case of the appellant's husband, he was informed that his wife had been certified as afflicted with "psychosis, ethnology undetermined" and that he might appeal on her behalf to a board of medical examiners. He stated at that time that he desired to appeal. From a transcript of a reopened hearing in his case on November 17, 1952, it appears that this appellant departed for Cuba on November 15, 1952.
The application under section 212 (c) of the Immigration and Nationality Act was submitted to secure a waiver of the ground of inadmissibility relating to the prior attack of insanity, counsel having indicated that the conviction for shoplifting would not be a bar to admission in view of section 4 of the Act of September 3, 1954 ( 68 Stat. 1145). The district director's denial of the application was based on a conclusion that the appellant's domicile in the United States terminated when she was excluded and deported from Miami on November 15, 1952; that at that time she had not yet completed seven years' residence following her lawful admission for permanent residence on December 22, 1945; and that because of her deportation on November 15, 1952, she could not thereafter acquire the remainder of the seven years' residence necessary. In support of the conclusion, there was cited Matter of S----, 55827/461, 1 IN Dec. 376 (1943).
We have carefully considered the contentions of counsel on the two occasions when this case was orally argued before us. It was contended that on November 11, 1952, the appellant was not actually seeking admission to the United States; that she had actually intended to travel directly from Cuba to the Dominican Republic; and that it was entirely accidental that she was routed to the Dominican Republic via Miami, Florida. It is also contended that the appellant was entitled to a hearing in accordance with Kwong Hai Chew v. Colding, 344 U.S. 590 (1953), and that, if this supposed exclusion and deportation in November 1952 are disregarded, the appellant could be considered as having completed seven years' residence on December 22, 1952, in accordance with Matter of C----, 56127/820, 1 IN Dec. 631 (1944).
The appellant's case appears to be more nearly analogous to Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953), in which the court held that the alien was not entitled to a hearing, than to Kwong Hai Chew v. Colding, supra. Actually, neither case is in point because each involved former 8 CFR 175.53 and 175.57, relating to aliens whose entries would be prejudicial to the interests of the United States. In view of the circumstances relating to the exclusion of the appellant in November 1952, we think there is considerable merit in counsel's position that it would be inequitable to hold that this exclusion and deportation terminated the appellant's residence in the United States. However, we do not find it necessary to determine whether there was any irregularity in connection with this exclusion because we believe that the appellant's reentry on March 3, 1952, precludes exercise of section 212 (c) of the Immigration and Nationality Act. That statutory provision is, in part, as follows:
Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General without regard to the provisions of paragraph (1) through (25) and paragraphs (30) and (31) of subsection (a). * * * [Emphasis supplied.]
When the appellant reentered the United States on March 3, 1952, she was inadmissible. If she had been excluded at that time, the 7th Proviso to section 3 of the Immigration Act of 1917 could not have been utilized because she did not then have seven years' residence in the United States. Similarly, in the event that deportation proceedings had been instituted, the 7th Proviso could not have been exercised to cure the defect in that entry and that would have been equally true if she had made no departure after March 3, 1952, and had remained continuously in the United States until the present time. In the event that the appellant had been deported, the specific language in section 212 (c) would preclude its exercise. Under these circumstances, we do not believe that it can properly be said that the appellant is returning to a lawful unrelinquished domicile since it does not appear that she has had a lawful domicile subsequent to March 3, 1952. We previously reached a similar conclusion in a case which bears some analogy ( Matter of M----, E-118717, 5 IN Dec. 642, 647 (1954)).
In our consideration of the appellant's case, we have taken cognizance of our decision in Matter of S----, E-094710, 6, I. N. Dec. 392 (approved by Atty. Gen. Mar. 15, 1955). In that case, it was held that section 212 (c) of the Immigration and Nationality Act could be exercised notwithstanding the contention of the Service that the alien's status had changed from that of an alien lawfully admitted for permanent residence to that of an alien illegally in the United States because he was deportable. It differs from the appellant's case because that alien had had over 30 years' residence at the time of his first reentry after the convictions which rendered him inadmissible and relief could have been accorded in exclusion proceedings.
For the reasons stated above, it is our considered opinion that the language of section 212 (c) of the Immigration and Nationality Act precludes its exercise in the appellant's case. Accordingly, we have no alternative but to dismiss the appeal.
Order: It is ordered that the appeal be and the same is hereby dismissed.