A-7749930
Decided by Board April 21, 1958
Discretionary relief — Waiver under section 5, Act of September 11, 1957 — May be exercised nunc pro tunc when entry occurred after effective date of act.
A waiver under section 5 of the Act of September 11, 1957, may be granted nunc pro tunc in deportation proceedings to cure a designated ground of inadmissibility at time of entry where the alien was otherwise admissible and the entry occurred after the effective date of that act.
CHARGE:
Order: Act of 1952 — Section 241 (a) (1) — Excludable at time of entry as one who has engaged in prostitution.
BEFORE THE BOARD
Discussion: The special inquiry officer found the respondent deportable upon the ground stated above. He terminated proceedings under the authority of section 5 of the Act of September 11, 1957, nunc pro tunc, and certified the case to this Board for review. The respondent, a 35-year-old married female, a native and citizen of Mexico, was admitted to the United States for permanent residence on January 5, 1944, as a nonquota immigrant. On September 14, 1957, she went to Mexico to purchase gasoline and returned the same day. The respondent had worked as a prostitute in Mexico from 1941 to 1943. Under the law in existence at the time of her entry in 1944 she was not inadmissible although she had been so employed. However, the Immigration and Nationality Act of 1952 made a person excludable who had been a prostitute at any time. When the respondent reentered in 1957 she was inadmissible as one who had been a prostitute.
Counsel has applied for relief under section 5 of the Act of September 11, 1957, which in pertinent part grants authority for the admission of an alien who is excludable from the United States as one who had practiced prostitution prior to entry, if she is the spouse of an alien lawfully admitted for permanent residence or has children who are United States citizens, and if it be established to the satisfaction of the Attorney General that her exclusion would result in extreme hardship to the spouse or children and the admission would not be contrary to the national welfare, safety or security of the United States. The special inquiry officer has concluded that the respondent satisfies all these requirements. A review of the record reveals that she does. Her husband has been a resident of the United States since 1924 when he entered at about the age of 6 months. He has resided continuously in the United States except for short visits of less than a day to Mexico. He married the respondent in 1953 and has been living with her and supporting her and 3 citizen children since the marriage. The youngest child is 4 years of age. Respondent's husband has never lived in Mexico. He and the respondent own a house valued at $10,500 in the United States but have very limited liquid assets. He is indebted to the extent of about $300. This is a considerable sum to him. He has been employed by one company in the United States since 1943 and earns under $50. a week. To require the respondent to leave the United States would result in extreme hardship to her, her husband, and the citizen children. A comprehensive neighborhood investigation failed to reveal any derogatory information concerning the respondent. She has established that her admission to the United States would not be contrary to the national welfare, safety or security. She was in possession of appropriate documents entitling her to return to the United States at the time of her entry. Clearly, if the respondent were outside the United States applying for admission, she would have established a case calling for the favorable exercise of discretion.
The question which presents itself is whether the power to grant nunc pro tunc relief exists. At the time the respondent applied for admission, the authority to grant her a waiver existed. Under similar circumstances, it has been held proper to exercise discretionary action nunc pro tunc ( Matter of M----, E-050442, 5 IN Dec. 598; Matter of S----, E-094710, 6, I. N. Dec. 392; Matter of L----, 56019/808, 1 IN Dec. 1). Accordingly, we find it was proper to do so here.
Order: It is ordered that pursuant to the discretion contained in section 5 of the Act of September 11, 1957, the alien be considered as having been lawfully admitted to the United States for permanent residence at El Paso, Texas, on September 14, 1957, notwithstanding her inadmissibility at that time as one who had engaged in prostitution (1941-1943), subject to revocation in the discretion of the Attorney General, after hearing, if the alien subsequently commits any offense.