A-4068976
Motion of Central Office June 21, 1950 Decided by Board October 9, 1950 Decided by Acting Attorney General November 6, 1950
Seventh proviso relief — Section 3, act of February 5, 1917 — Effect of departure 1 week prior to expiration of 7 years from date of entry into the United States.
The alien departed from the United States only 1 week prior to the expiration of 7 years from the date of his entry into the United States; had he remained in this country for that one additional week there could have been no question raised concerning his eligibility for favorable exercise of the 7th proviso to section 3 of the Immigration Act of February 5, 1917. His mere absence from the country during that 1 week with avowed intentions of returning does not affect his eligibility under the 7th proviso, supra. It was noted that on his departure he had executed an outstanding warrant of deportation. The decision in this case is not to be construed as overturning or modifying in any respect the decision in Matter of S----, reported in 1 IN Dec. 376, and in Matter of P---- 55973/653, Atty. Gen. 1941 referred to in 1 IN Dec. 383.
CHARGES:
Warrant: Act of 1924 — No immigration visa.
Lodged: Act of 1929 — Arrested and deported — reentered within 1 year.
Act of 1917 — Convicted of crime prior to entry — Tampering with and damaging the motive power of a foreign vessel within the jurisdiction of the United States.
BEFORE THE CENTRAL OFFICE
(June 21, 1950)
Amended Motion to the Board of Immigration Appeals that it reconsider and withdraw its order of April 21, 1950, granting voluntary departure, preexamination and advance exercise of the 7th Proviso to Section 3 of the Immigration Act of 1917, as amended, and affirm the order of this Service dated February 6, 1950, directing that the alien be deported; or in the alternative, that the Board certify its decision to the Attorney General for review. The Commissioner's Motion dated May 18, 1950 and heretofore filed with the Board is hereby withdrawn. Discussion: The facts are fully set forth in the orders above mentioned. Both the Central Office and the Board of Immigration Appeals agree that the record relates to an alien who was deported from the United States when he voluntarily departed under an order of deportation 1 week short of 7 years from the date of entry.
The sole question for determination is whether an alien who is deported prior to the time he acquired 7 consecutive years domicile, in the United States, may tack on foreign residence subsequent to the deportation to make up a total of 7 years for the purposes of the 7th proviso to section 3 of the Immigration Act of 1917.
In its order of April 21, 1950, entered in the instant case, the Board of Immigration Appeals answered the question in the affirmative. This holding is contrary to the ruling in the Matter of P----, 55973/653 (June 4, 1941, A.G.), wherein the then Assistant to the Attorney General, Mr. Maguire, held that the 7th proviso should be held inapplicable to persons who have been deported from the United States before they have lived in this country for 7 years.
The same rule was approved and was extended to exclusion proceedings in Matter of C---- H---- de S---- (55872/461 1, I. N. Dec. 376) where Attorney General Francis Biddle held on February 1, 1943, that the 7th proviso was inapplicable to persons who had been excluded from the United States before they had lived in this country for 7 years. The Attorney General stated "the word `domicile' contemplates actual residence or place of abode which may be interrupted by a deportation (as in the P---- case), or by an exclusion order (as in the present case), notwithstanding any contrary desire or intention on the part of the alien."
On January 28, 1944, the Attorney General had occasion to consider the decisions in Matter of C---- H---- de S---- and Matter of P----. He characterized those cases as follows:
Those cases involved respectively, a deportation and exclusion order which barred the alien from the country before the lapse of 7 years from the time of original entry. It was concluded that the word "domicile" as used in the 7th proviso contemplated actual residence or place of abode (aside from bona fide temporary absences, In re E---- H---- C---- (56127/820, January 14, 1944) ( 1 IN Dec. 631)), which could be terminated, despite any contrary intent on the part of the alien, by a deportation or an exclusion order before the 7 years had elapsed. ( Matter of L---- S----, 1 IN Dec. 646.) [Italics added.]
So in the original; however, Matter of C---- H---- de S---- involved an exclusion proceeding and Matter of P---- involved a deportation.
It is evident that over the course of years it has become the settled rule that the exercise of the 7th proviso is barred where an alien has been deported or excluded before the lapse of 7 years from the time of entry. The order of the Board of Immigration Appeals is contrary to that well settled rule.
Matter of C----, 1 IN Dec. 631, which is the sole case cited by the Board of Immigration Appeals in support of its position that 7th proviso relief may be granted to an alien who was deported prior to the lapse of 7 years from the date of his entry, is also cited by the Attorney General in the quotation set forth above. It is obvious from the quotation that the Attorney General considered the situation in the Matter of C---- to be entirely different from those cases in which an alien was deported or excluded prior to the lapse of 7 years. A reading of Matter of C---- ( supra), reveals the Attorney General expressedly indicated that Matter of C---- H---- de S---- ( supra), and Matter of P---- ( supra), were cases dealing "with distinguishable factual situations, involving, respectively, a deportation and an exclusion order."
So in the original; however, Matter of C---- H---- de S---- involved an exclusion proceeding and Matter of P---- involved a deportation.
In the Matter of C----, the applicant was lawfully admitted for permanent residence and was physically within the country for 6 years and 4 months. He then went to Canada, first obtaining a reentry permit. After spending several months in Canada he presented himself for readmission within the time limit prescribed by his reentry permit. He was certified by a Public Health surgeon as afflicted with class A, pulmonary tuberculosis. He was excluded by a Board of Special Inquiry less than a month before the lapse of 7 years after his admission to the United States for permanent residence. His case was then treated as an advance application for the exercise of the 7th proviso. When his case was decided by the Board of Immigration Appeals, the Board stated, "An alien whose case is on appeal is neither admitted nor excluded until the appeal is decided. It is therefore clear that the subject may now have a domicile of 7 years if his temporary absence in Canada may be considered." [Italics added.] The Board exercised the 7th proviso on behalf of the applicant. The matter was brought before the Attorney General where the decision of the Board of Immigration Appeals was affirmed. The Attorney General stated, "He (applicant) has not yet been admitted ( but has not been excluded) because, while tuberculosis is arrested, the Public Health Service regards his condition as too recent to be considered as cured." [Italics added.]
The Matter of C---- holds that where an alien voluntarily departed (in contrast to having been excluded and deported or arrested and deported) his period of absence abroad, if temporary in nature, could be considered residence within the United States for the purposes of 7th proviso relief. Thus, in Matter of C----, the alien had neither been excluded nor deported when his application for relief was being considered by the Board of Immigration Appeals and the Attorney General; he then had in excess of 7 years' residence in the United States and 7th proviso relief could properly be exercised.
In view of the facts that the Attorney General in the Matter of C----, expressly distinguished the situation in Matter of C---- from those cases where an alien was deported or excluded, and in view of the fact that the alien in Matter of C----, was neither excluded nor deported, we must hold that Matter of C---- is inapplicable to the present case where the alien was deported and that the rule set forth in Matter of C---- H---- de S---- and Matter of P----, and reffirmed by the Attorney General in two subsequent decisions, must control herein.
The alien herein having been deported prior to the lapse of 7 years from the date of his entry into the United States, his foreign residence subsequent to deportation, may not now be tacked on to his residence prior to deportation to make up a total of 7 years for the purpose of the 7th proviso.
Since the Board's decision in the instant case will establish a precedent which is in disregard of holdings by the Attorney General, and as it will have serious consequences in its effect on the enforcement of immigration laws, the case should be returned to the Board for further consideration.
Motion is hereby made, That the Board of Immigration Appeals reconsider and withdraw its order of April 21, 1950, and that it enter an order affirming the order of this Service dated February 6, 1950, directing the alien's deportation to Italy.
It is further moved, That in the event the Board of Immigration Appeals does not grant the foregoing motion, it certify the case to the Attorney General for review pursuant to the provisions of 8 C.F.R. 90.12 (c).
Discussion: This case is now before the Board on motion by the Immigration and Naturalization Service requesting that we reconsider our decision of April 21, 1950, where we authorized voluntary departure, preexamination, and readmission to the United States under the authority contained in the 7th proviso of section 3 of the act of 1917, in reference to conviction of a crime, to wit: Tampering with and damaging the motive power of a foreign vessel within the jurisdiction of the United States and with reference to inadmissibility because of prior arrest and deportation; and instead the Service asks that we affirm the order of deportation.
The respondent in this deportation proceeding is a native and citizen of Italy. He was in the United States as a seaman on several occasions between October 1936 and June 1940. On June 6, 1940, he arrived at Mobile, Ala., as a seaman on the Italian S.S. Ida Z.O. Because of the war, this vessel remained at Mobile and the alien remained on her until 1941 when he was interned after the ship had been sabotaged. Because of the sabotage the respondent was convicted of the crime of tampering with and damaging the motive power of a foreign vessel. In May 1943 the respondent was released on parole. His deportation had been ordered on June 11, 1941. On May 29, 1947, the respondent left the United States as a seaman. When he so departed the order of deportation was outstanding and in contemplation of law he was deported. It will be observed that his departure from this country on May 29, 1947, was just 1 week before the expiration of 7 years from the date of his entry on June 6, 1940. The respondent remained abroad for about 7 months and reentered the United States as a seaman on February 13, 1948. This was his last entry into this country.
The respondent married a native-born citizen of the United States on February 16, 1948. His wife has a child by prior marriage. He is supporting her and the child, and proceedings by him to adopt the child are contemplated.
The Immigration and Naturalization Service does not question the desirability of exercising discretion to permit the respondent to acquire legal and permanent residence in the United States and live here with his citizen wife. The crime for which he was convicted grew out of a wartime situation and in no sense indicates personal undesirability on the part of the respondent. The sole and only question raised by the Service is whether legally the 7th proviso may be exercised. The Service contends that it may not because the respondent left the United States under the order of deportation on May 29, 1947, 1 week before he had physically lived in the country for 7 years. Therefore, it is contended that he does not have a 7-year domicile in the United States. In a word, because the respondent left this country as a seaman 1 week too soon, under the position of the Service he is to be forever barred from legal permanent residence in the United States, and rejoining his citizen wife here. The position of the Service is that the view it adopts is one required by prior Attorney General decisions which are reviewed and set forth in the written motion of the Service and elaborated on in oral argument before the Board.
The consideration of this problem begins with the D---- case. This was an opinion by the Solicitor of Labor of July 17, 1934, adopted by the Department of Labor when that Department was charged with the administration of the immigration laws and followed without question until the P---- decision, later to be discussed. In the D---- case, the alien had been physically in the United States from September 1922 until January 1933 when he was deported, among other charges, on the ground that he admitted committing a crime involving moral turpitude, to wit: Perjury prior to his entry into the United States. D---- sought to return to the United States and asked that the discretion contained in the 7th proviso be invoked in his favor in reference to inadmissibility because of the crime. It was first ruled in the Department of Labor that his deportation from the United States precluded the exercise of the 7th proviso. The conclusion of the Solicitor of Labor was that deportation did not in and of itself break domicile acquired in the United States, and that there was authority to readmit D---- under the 7th proviso even though inadmissible because of crime.
File 55632/163.
The next time this issue was raised was in connection with the case of A---- E---- M---- P---- (File No. 55973/653). Mrs. P---- had never been lawfully admitted to the United States but lived here from January 1934 until April 16, 1938, a period of 4 years and 3 months. She was deported April 16, 1938, on the ground, among others, that she admitted committing perjury prior to entry into the United States. Since her deportation in 1938 until the case was considered in 1941, she had been making repeated efforts to return to this country. Unlike the D---- case where the alien had spent more than 7 years physically in the United States prior to deportation, in the P---- case the alien had spent but little more than half of the required 7 years in the country, although the full 7 years had elapsed from the date of her entry until the date her case was considered in 1941. In a memorandum to then The Assistant to the Attorney General Judge Matthew F. McGuire, Lemuel B. Schofield, then Special Assistant to the Attorney General in Charge of Immigration and Naturalization, stated:
In 1934 Charles Wyzanski, Esquire, then Solicitor of the Department of Labor, made what to me is a surprising ruling to the effect that the deportation of an alien and his absence from the United States pursuant to deportation did not interrupt his continuous domicile in this country, and made such an alien still eligible to apply for readmission under the Seventh Proviso above referred to.
This Service has been acting under the authority of that opinion since that date. We believe it is wrong and will welcome an opportunity not to be obliged to follow it in the future.
In response to this memorandum, Judge Holtzoff, then Special Assistant to the Attorney General, prepared a memorandum for Judge McGuire, concluding that the opinion of the Solicitor of Labor in the D---- case should be deemed overruled, and that the 7th proviso should be construed as not being applicable to persons who reapply for readmission to the United States after having been deported before they have lived in the country for as long a period as 7 years. In his discussion leading up to this conclusion, Judge Holtzoff stated:
The manifest purpose of the provision is to extend leniency to aliens who have established and maintained homes in the United States for a specified minimum period of time, if after a temporary visit abroad they are found on their return to the United States to be inadmissible under the Immigration laws. The period fixed by law is seven years. Consequently, any alien who has not lived in this country for at least seven years is not entitled to the benefit of this provision of law. Whether his residence in the United States before the expiration of the seven-year period is cut short by a voluntary departure or by deportation would seem to be immaterial.
Judge McGuire on June 4, 1941, approved the memorandum prepared by Judge Holtzoff, and stated:
Accordingly, you [Major Schofield] are authorized in the administration of the Immigration laws to regard as overruled the opinion rendered by the Solicitor of the Department of Labor in 1934 on this point, and to adopt the view that the 7th proviso does not permit the readmission to the United States of aliens who have been deported from this country before they had lived here for as long as seven years.
It is to be observed that in the D---- case, there was not involved the question of whether the entire 7-year period must have been spent in the United States. In that case more than 7 years was spent in this country prior to deportation. In the P---- case, as we have pointed out, little more than half the 7-year period was spent in the United States. Nevertheless, both Judge Holtzoff and Judge McGuire specifically overruled the D---- opinion.
The third case requiring consideration is that of C---- H---- de S----. Unlike the D---- and P---- cases, the S---- matter was concerned with the question of whether an exclusion order terminated domicile in the United States. Mrs. S---- lived in the United States from March 1929 until July 27, 1933, or for a period of 4 years and 4 months. After a 2 months' visit in Mexico she was excluded on September 29, 1933, and thereafter excluded on numerous occasions when she sought to come to the United States for permanent residence. When the case was considered on January 6, 1943, by the Board of Immigration Appeals, far more than 7 years had elapsed since her original entry. The exercise of the 7th proviso was essential if she were to be permanently admitted to the United States because of the admission of the commission of perjury. When the case was certified to the Attorney General, it was considered for him by Oscar Cox, then Assistant Solicitor General, who in a memorandum to the Attorney General stated:
File 55872/461 ( 1 IN Dec. 376).
This shows, I think, that the purpose of the Congress in enacting the 7th proviso was to relieve peculiar and unusual hardships which would result from the severing of ties and connections, domestic or otherwise, which probably, if not inevitably, would be formed by an alien living here for a long period of time. This purpose would be fully accomplished by giving the word domicile the same meaning as residence. On the other hand, giving it the technical legal meaning ascribed to it in the W---- opinion (see attached file) would permit the benefits of the proviso to be claimed by and extended to a person who actually lived here for only a few days or weeks, without the formation of any such ties or connections, and who then left the country (or was deported) and lived elsewhere for the remainder of the 7-year period. I do not believe the Congress intended any such result, nor do I believe the word "domicile" should be construed in such a way as to permit it.
The Attorney General on February 1, 1943, held that the 7th proviso could not be exercised in the S---- case, and stated:
I have submitted the matter to the Assistant Solicitor General for his consideration as to the meaning to be attributed to the word "domicile." His conclusion coincides with that adopted in the P---- case; that is, the word "domicile" contemplates actual residence or place of abode which may be interrupted by a deportation (as in the P---- case), or by an exclusion order (as in the present case), notwithstanding any contrary desire or intention on the part of the alien. I concur in this conclusion.
We think it important to observe here that the P---- case and the S---- case involving both deportation and exclusion, were concerned with aliens who had spent but little more than half of the 7-year period in the United States. In both cases it seems fair to conclude that the rationale of the decisions was that one could not by spending a short part of the 7 years in the United States merely through the lapse of time acquire a full 7-year domicile. The language of Mr. Cox in the S---- case, above quoted, shows that he believes "domicile" as used in the 7th proviso should have the same meaning as the "residence." Residence, of course, does not require a continued physical presence, and short absences where the home clearly is in the United States do not interrupt a residence.
The last two cases decided contemporaneously dealing with this issue are the C---- case, 56127/820, decided by the Attorney General January 14, 1944 ( 1 IN Dec. 631), and the S---- case, 55915/701, decided by the Attorney General January 28, 1944 ( 1 IN Dec. 646). In the C---- case, the alien had been legally admitted to the United States for permanent residence on April 8, 1936, and was physically in the United States for 6 years and 4 months when he went to Canada to receive treatment for tuberculosis. When he attempted to return he was excluded as one afflicted with tuberculosis. In view of the rulings in the P---- and S---- cases, the question arose as to whether C---- was eligible for consideration under the 7th proviso. In holding that he was and that the 7 years domicile could be completed by tacking on this period spent out of the United States on a bona fide temporary visit, the Attorney General distinguished the case from the P---- and S---- cases and said:
Those cases dealt with distinguishable factual situations, involving, respectively, a deportation and an exclusion order which effectually barred the alien from the country long before the lapse of 7 years from the time of original entry. It was urged, in effect, that the statutory requirement of 7 years' domicile might be satisfied with the passing of 7 years from the time the alien first set foot upon our shore with intent to remain here, notwithstanding that his entry might be unlawful and notwithstanding the degree of promptness and diligence with which he might be apprehended and forced to go and to remain beyond our borders. It was concluded that the Congress did not intend the word "domicile" to be understood in so broad a sense and contemplated a more limited meaning, as actual residence or place of abode. [Italics supplied.]
However, "domicile" does not require physical presence during every day of the 7-year period. This is adequately supported by the precedents cited in the opinion of the Board. I certainly had no intention of implying anything to the contrary when approving in the S---- case the interpretation previously adopted by Assistant to the Attorney General McGuire in the P---- case. Nor do I feel that Mr. McGuire had any such thought.
A bona fide temporary absence such as that disclosed in the present case is undoubtedly permissible and no valid objection can be based upon the mere fact that it occurred near the end of the 7-year period rather than at an earlier time.
The importance of the language above quoted is emphasized by a dissent when the Board considered the C---- case in which was quoted language from Judge Holtzoff's memorandum of June 4, 1941, where he stated:
The period fixed by law is 7 years. Consequently, any alien who has not lived in the United States for at least 7 years is not entitled to the benefit of this provision of law. Whether his residence in the United States before the expiration of the 7-year period is cut short by a voluntary departure or by deportation would seem to be immaterial.
It is very clear therefore that the C---- case to a substantial degree materially modified the P---- and S---- cases.
The last case requiring consideration in the matter now before us is that of L---- S----, 55915/701, decided by the Attorney General on January 28, 1944 ( 1 IN Dec. 646). S---- actually lived in the United States for more than 7 years, to wit: from October 23, 1929, until February 23, 1940, when he left voluntarily under an order of deportation. He was convicted of perjury in the United States and to be readmitted for permanent residence required the favorable exercise of the 7th proviso. Remembering that in the P---- case the ruling in the D---- case was specifically overruled, the following quoted language from the Attorney General's opinion is extremely pertinent:
All other conditions and circumstances being the same, it does not seem to me that it makes any difference whether or not a formal exclusion order has been issued. So far as concerns the language of the statute it might well be supposed that the alien would be ordered excluded because disqualified and that thereafter he would invoke the discretion intended to be available in the event of such disqualification. The contrary view would require that we add to the statute a condition which is not expressed and which there is no apparent reason for implying. [Italics supplied.]And I perceive no reason for a different view in the case of a deportation or a "voluntary departure under warrant of deportation." Under the administrative practice (letter January 18, 1944, from the Chairman of the Board), which I find no occasion to disturb, an alien of 7 years' domicile who is within the country but is subject to deportation may leave the country upon his own initiative, or pursuant to informed advice by, or with the express approval of, the immigration authorities for the purpose of invoking the 7th proviso. As in the case of an exclusion, it does not seem to me that anything in the statute or in the practice under the statute requires a conclusion that the Attorney General's discretion depends upon the formality with which the result (removal of the alien) is accomplished. [Italics supplied.] The facts bearing upon relinquishment of domicile (as previously defined) must, of course, be considered.
The decision of the Board is squarely supported by an opinion of the Solicitor of the Department of Labor ( In re S---- D----, 55632/163, July 17, 1934), which was followed in the administration of the statute until about a year ago when doubts arose because of the rulings in the P---- and S---- cases.
The Solicitor's opinion in the D---- case dealt with an alien who was deported after an unquestioned domicile of 7 consecutive years. The Solicitor held that the deportation did not effect a relinquishment of the domicile. In the opinion he indulged in certain generalities, which are undoubtedly supported by the authorities cited but are not necessarily of universal application or to be applied without regard to other evidences of legislative intent when construing a statute. The following statement, copied from the Solicitor's opinion, is illustrative:
"A change of domicile can only be effected through the exercise of the volition of the person whose domicile is sought to be changed ( Harris v. Harris, 215 N.W. 661, Sup. Ct. Iowa)."
The application of this principle was thereafter urged in the P---- and S---- cases, where the aliens had been deported or excluded before the lapse of the prescribed 7 years. It was concluded that the word "domicile" as used in the seventh proviso was not to be understood in so broad a sense, and that an alien deported or excluded before acquiring the statutory domicile of 7 years could not thereafter acquire it through lapse of time and failure on his part to concur in the legislative mandate under which he was barred from the country. However, there was no intention nor any occasion in those cases to question the result reached in the D---- case.
From the C---- and S---- cases, this is perfectly clear: (1) That neither exclusion nor deportation necessarily breaks domicile in the United States, and (2) that the entire 7-year period need not be spent in the United States provided that the absence although at the end of the 7-year period was a genuine temporary departure from this country. The Service view, while conceding that deportation does not break the continuity of domicile, argues that deportation must occur after the alien has spent 7 years in the United States. Remembering that in the C---- case the Attorney General ruled we could tack on the final temporary absence to make up the full 7-year period, the S---- case says that the formality with which the removal of the alien is accomplished is immaterial. The language of the Attorney General in the S---- case that domicile as used in the 7th proviso is not to be construed in so broad a sense as to grant relief in the P---- and S---- cases is appreciated. There, the Attorney General was saying that one cannot spend a period substantially less than the full 7 years in the United States and by the mere lapse of time thereafter qualify for consideration under the 7th proviso. But he did not say that a short bona fide absence such as in the C---- case and such as in the case before us precluded the exercise of the 7th proviso. These rulings of the Attorney General while adopting the basic principle of the D---- case, nevertheless do limit the D---- case by reading into the word "domicile" a restriction that "domicile" must bear a relationship to actual residence and the broader legal fiction of domicile has no application. There is a world of difference whether the absence to be tacked on to physical presence in the United States is 3 years or 1 week. One may in a technical sense retain a domicile in a certain place without maintaining a residence there, and though he may be absent therefrom for many years. The rulings of the Attorney General require more than a mere technical domicile, they require a residence. In neither the P---- nor S---- cases had the aliens retained a residence in the United States. In the case before us, it is perfectly clear that the alien has done so.
The prior decisions of the Attorney General raise no obstacle which, as a matter of law, require the denial of 7th proviso relief in the case before us. The equities are all with the respondent. It is beyond argument a case where relief, if permissible, ought to be granted. The decision we have reached is clearly permissible in the light of existing authority. The case, however, does involve an application of law which from time to time may arise and we, therefore, will certify it to the Attorney General for review of our decision as requested by the Commissioner.
Order: It is ordered that the motion of the Service that we reconsider our decision and affirm the order of deportation be denied.
In accordance with the provisions of 8 C.F.R., section 90.12 (c), this case is certified to the Attorney General for a review of the Board's decision.
The decision and order of the Board of Immigration Appeals in the above-named case, dated October 9, 1950, are hereby approved.