A-5754521
Decided by Board December 1, 1949
Discretionary relief — Voluntary departure and preexamination, in conjunction with the exercise of the seventh proviso to section 3 of the Immigration Act of 1917 — Factors considered.
The exercise of discretion in a particular case necessarily requires a consideration of all the facts and circumstances involved, and among the factors considered are (1) the social and humane problems present in the case, (2) the alien's undesirability as evidenced by his offense (even going behind a judgment of conviction to ascertain the surrounding circumstances), and (3) whether the grant of such relief is in the best interests of the United States under the conditions which obtain. (See 1 IN Dec. 8.)
CHARGES:
Warrant: Act of 1924 — No immigration visa.
Act of 1917 — Convicted of crime prior to entry — Petit larceny.
BEFORE THE BOARD
Discussion: This case is before us on appeal from an order entered by the Assistant Commissioner July 5, 1949, directing the respondent's deportation to Germany at Government expense on the charges stated in the warrant of arrest, and denying his application for voluntary departure, preexamination, and relief under the seventh proviso to section 3 of the Immigration Act of 1917. Deportability on the stated charges appears to be conceded by counsel. The appeal is directed to the denial of discretionary relief.
The respondent, a native and citizen of Germany, now 41 years of age, married, originally entered the United States as a seaman in 1927. He was deported to Germany on July 20, 1932, on the documentary charge that he had remained longer than permitted and on the criminal charge that subsequent to May 1, 1917, he had been sentenced to imprisonment for a term of 1 year or more because of conviction in this country of a crime involving moral turpitude committed within 5 years after entry, to wit: petty larceny. He returned to the United States the same year as a stowaway and was denied admission at the port of Galveston, Tex. He returned to Germany on the same vessel. The respondent last entered the United States at the port of Boston, Mass., on February 20, 1936, as a deserting seaman and he has resided here since that time. He has never received permission to reapply for admission to the United States after arrest and deportation.
The respondent was apprehended on a warrant of arrest issued July 8, 1943. He was ordered deported on the charges stated therein by this Board on October 22, 1943. This Board on January 25, 1946, upon reconsideration of the case, withdrew the outstanding order and warrant of deportation and directed that the hearing be reopened to permit the respondent to apply for voluntary departure, preexamination and relief under the seventh proviso. The case is now before us on appeal pursuant to the reopened hearing had in accordance with the foregoing.
The sole issue before us is a determination of whether the facts of the case warrant the exercise of discretion which would waive the criminal ground of inadmissibility. The Assistant Commissioner in his opinion concludes that the facts of the case do not warrant the favorable exercise of the discretion contained in the seventh proviso to section 3 of the 1917 act because of the following factors: (1) The respondent's criminal record; (2) his successive violations of the immigration laws; and (3) his predilection, at least until 1943, toward the Communist Party and Communist principles.
The exercise of discretion in a particular case necessarily requires a consideration of all the facts and circumstances involved therein. However, in dealing with these facts and circumstances, an administrative body such as this Board must rely on certain predetermined standards. The standards set forth in Matter of G----, 56040/547, 1 IN Dec. 8 (apprvd. A.G. November 29, 1940), require the consideration of the following factors: (1) The social and humane problems involved and (2) the alien's undesirability as evidenced by the crime for which he has been convicted. While we may not go behind the judgment of conviction in an exclusion or deportation case predicated on conviction of a crime, inquiry may be had into the circumstances surrounding the commission of the crime in determining whether discretionary action should be taken under the seventh proviso to section 3 of the Immigration Act of 1917 ( Matter of G----, supra).
The social and humane factors in the instant case are favorable to the respondent's readmission under the seventh proviso. He has an aggregate of 18 years' residence in the United States. He has an excellent employment record. He is now employed as a restaurant counterman, earning $50 per week. Some 13 or more communications in the form of letters and affidavits attest that the respondent is a steady, honest, dependable, and industrious worker. Some 77 friends and neighbors have signed a petition that the seventh proviso be exercised favorably in his behalf. There is an affirmative showing that the respondent's deportation would cause hardship to his citizen wife who is employed intermittently because of her physical condition. When employed, his wife earns an average of $30 per week. It was said in Matter of G---- ( supra), "* * * the exclusion of one who has lived here for so many years has more far-reaching social consquences than the exclusion of one who may be applying to enter the country for the first time or may be seeking reentry after only a few years of residence." The factors aforementioned all appeal for favorable action under the seventh proviso.
The second standard referred to in Matter of G---- ( supra) requires an appraisal of the respondent from the standpoint of his criminal conduct. One who has committed an aggravated crime should not receive the same consideration as one who has committed a petty offense although both involve moral turpitude. The crime which serves as the basis for one of the grounds of deportability was committed by the respondent in 1931, some 18 years past. Prior to 1931 the respondent was arrested on two occasions. On one occasion he was acquitted. On the other he was convicted for disorderly conduct. Other than the foregoing, the Federal Bureau of Investigation has no criminal record against the respondent. The respondent has engaged in no criminal conduct since 1931. In view of the evidence now before us, it is apparent that the respondent has rehabilitated and that his criminal record is an isolated incident.
In addition to the standards referred to in Matter of G----, above, certain conditions concerned with the public safety of our citizens and the continuation of our democratic form of government have made it necessary for this Board in the exercise of discretionary relief to consider as a factor whether the alien's continued residence in this country is desirable from the standpoint of the best interests of the United States. With this in mind, we note that the respondent testified on July 19, 1943, that he did not see anything wrong with the principles of the Communist Party, "they always did something right." He also testified on July 8, 1943, that he did not join the Communist Party in this country when solicited for membership because "I am not a citizen." There is also a showing that the respondent was a member of the Young Communist League in Germany prior to his entry and distributed literature in its behalf. He and his wife both admitted that they attended Communist meetings at Madison Square Garden just prior to the hearing in 1943.
The respondent's testimony concerning his association with and predilections to Communism, in our judgment mitigates against his desirability as a permanent resident. While it is true that the respondent during the reopened hearing of 1948 disavowed any interest in Communism and he testified on September 9, 1946, "I believe in the democratic form of government; I am not interested in Communism any more; I have not attended any organization whatsoever since I was at your hearing last * * *" this may well be considered as a self-serving declaration since the respondent is seeking relief from deportation. We agree with the Assistant Commissioner that the respondent's deportation may cause hardship to his citizen wife, but upon consideration of all the factors, we are of the opinion that an order of deportation should be entered.
Order: It is directed that the appeal be and the same is hereby dismissed.