A-5845821 E-077619
Decided by the Board September 4, 1953
Suspension of deportation — Section 244 (a) of the Immigration and Nationality Act — Exceptional and extremely unusual hardship.
An individual who cannot obtain a nonquota immigrant visa for reentry into the United States because of his conviction for violation of the Harrison Narcotic Act; whose United States citizen wife cannot work outside her home because of a nervous breakdown; who is the sole support of his wife and at least one of his two United States citizen children; who has lived most of his life in this country; and who has been a person of good moral character for the past 22 years is found to have established that exceptional and extremely unusual hardship would result to him, and to his United States citizen wife and sons, in the event he were deported from the United States and to be a person whose deportation should be suspended under section 244 (a) (5) of the Immigration and Nationality Act.
CHARGE:
Warrant: Immigration and Nationality Act — At any time convicted of the law relating to the illicit traffic in narcotic drugs — To wit, violation of section 1 of the act of Congress approved December 17, 1914, as amended by the act of Congress approved February 24, 1919, commonly called the Harrison narcotic law, in that, on August 15, 1925, at Tampa, Fla., he did unlawfully, knowingly, and feloniously purchase and sell a certain derivative of opium, to wit, 1 ounce of morphine.
BEFORE THE BOARD
Discussion as to Deportability: Respondent is 50 years old, married, male, a native and citizen of Italy. His only entry into the United States occurred at New York on June 23, 1910, at which time he was admitted for a permanent residence. His entry has been verified. On March 15, 1930, respondent was found guilty on three counts of an indictment charging violations of the law commonly known as the Harrison narcotic law, charging that on August 15, 1925, at Tampa, Fla., respondent did unlawfully, knowingly, and feloniously purchase and sell a certain derivative of opium, to wit, 1 ounce of morphine. Respondent is deportable on the charge stated in the warrant of arrest. Discussion as to Eligibility for Suspension of Deportation: Respondent applied for suspension of deportation under section 244 (a) (5) of the Immigration and Nationality Act of 1952. He has complied with the jurisdictional requirements of that statute. The special inquiry officer found that deportation of respondent would result in exceptional and extremely unusual hardship to himself, his citizen wife, and his two minor United States citizen children. Even though he is a nonquota immigrant under section 101 (a) (27) (A), he could not obtain a nonquota immigrant visa because of his conviction of violation of the Harrison narcotic law. Therefore, the special inquiry officer found that his deportation should be suspended under section 244 (a) (5) of the Immigration and Nationality Act of 1952.
Respondent was born in Italy in 1902 and entered the United States when he was 7 years old, accompanied by his parents and three brothers and sisters. He has lived in Tampa, Fla., all of his life, and has worked as a cigarmaker for the past 20 years. His wife was born in Tampa, Fla., and they were married in 1932. They have two sons, 19 and 17 years of age. The former is in the United States Air Force, and the latter is a high school student.
In December 1927 in the United States District Court for the Southern District of Florida at Jacksonville, Fla., respondent was indicted by a grand jury for receiving and reselling 1 ounce of morphine on August 19, 1925, in violation of the Narcotic Drugs Import and Export Act, approved May 26, 1922 ( 42 Stat. 596). The indictment contained eight other counts charging violations of section 1 of the Harrison narcotic law, approved December 17, 1914, amended by the act approved February 24, 1919. Respondent was found guilty in a jury trial on all nine counts of the indictment. The conviction was reversed, and respondent was again tried. On March 15, 1930, he was found guilty in a second jury trial on three counts, and the other six counts were nolle prossed by the United States attorney. Respondent pleaded not guilty to both prosecutions. He was sentenced to 2 years in a Federal penitentiary, and he served 19 months and 20 days. He testified that he got time off for good behavior, and that while serving his sentence he was made a trusty. He was discharged on October 29, 1931.
The record establishes that since the time respondent was discharged from the penitentiary 22 years ago he has had no arrests, and he presented substantial evidence to show that he enjoys a good reputation in his community. Fourteen business and professional men of Tampa, Fla., appeared at his hearing and volunteered to testify in his behalf. He is a member of the Sons of Italy, the Ancient, Mystic Order of Samaritans, L'Unione Italiana, the International Order of Odd Fellows, and he has been a past officer of some of these organizations. Officers of these fraternal organizations to which respondent belongs all stated that it was known to them that at one time he had been arrested and had served a sentence in a penal institution, but that since that time he has been a person of fine character, respected, conscientious, honest, and well thought of in his community.
The special inquiry officer questioned whether or not respondent could establish that he has been a person of good moral character under the 1952 act, because section 101 (f) (7) may preclude a person from establishing good moral character if he has been confined in a penal institution for a period of 180 days or more doing the period for which good moral character is required to be established. We discussed this question at length in Matter of M----, A-2669541, June 1, 1953, Int. Dec. No. 442, in which we stated:
It is our considered opinion, therefore, that paragraph (5) must be construed as requiring that, before an application for suspension may be submitted, at least 10 years must have elapsed after the grounds for deportation arose, and that during the 10 years immediately preceding the application, the alien must prove continuous physical presence in the United States and good moral character. In view of the foregoing, we conclude that the respondent is not barred from applying for suspension of deportation merely because he was confined in a penal institution during the period from November 1938 to August 1939.
The special inquiry officer found that respondent has been a person of good moral character for the total time following his conviction on March 15, 1930, for the aforesaid violation of the Harrison narcotic law. It is our finding that the record supports the decision of the special inquiry officer.
Respondent's wife testified that she had had a nervous breakdown, that she is unable to work outside the home in order to support herself and her children, and that their entire assets consist of an automobile valued at $200 and furniture valued at $1,000. Respondent earns $70 a week.
Because respondent would be unable to return to the United States in the event that he were required to depart to his native country, because his United States citizen wife and, at least, the youngest of his two citizen sons would be left without any visible means of support, because respondent has lived almost his entire life in the United States and for the past 22 years has conducted himself as a person of good moral character, it is our finding that deportation would result in exceptional and extremely unusual hardship to him, to his United States citizen wife and sons, and that he is a person whose deportation should be suspended under section 244 (a) (5) of the Immigration and Nationality Act of 1952.
Order: It is ordered that the order of the special inquiry officer, granting respondent suspension of deportation under section 244 (a) (5) of the Immigration and Nationality Act of 1952, be and it hereby is affirmed.