A-8015552 and 0801/4149.
Decided by Board December 29, 1954.
Conviction by United States court martial in Germany as conviction in the United States — Section 19 (a), Immigration Act of 1917.
Conviction in United States court martial proceedings held in Germany deemed not to be conviction in the United States within the meaning of section 19 (a) of the Immigration Act of 1917 so as to render alien deportable because of conviction in this country of crime involving moral turpitude, committed within five years after entry ( Matter of F----, 5 IN Dec. 56, overruled).
CHARGES:
Warrant: Act of 1924 — No immigration visa.
Lodged: Act of 1917 — Crime within five years (murder).
BEFORE THE BOARD
Discussion: This case comes before us on a motion to reconsider an order of this Board entered on January 25, 1954, directing that the respondent be deported from the United States on the charge stated in the warrant of arrest and on the lodged charge.
The respondent was born on December 16, 1915, in Vita, Manitoba, Canada. He was brought to this country in 1916. His entry in that year has not been verified. He last entered the United States at Detroit, Michigan, in March 1941 as a United States citizen.
On March 25, 1941, the respondent entered the Armed Forces of the United States. On April 1, 1943, while serving with the United States Armed Forces, he was naturalized as a United States citizen. On June 3, 1945, in a general court martial, in Germany, he was sentenced to life imprisonment and a dishonorable discharge for a murder committed on March 30, 1945, while he was serving in the armed forces. On May 13, 1946, this sentence was reduced to 20 years' imprisonment.
The respondent testified that he was returned to the United States in January 1946 in custody of United States Army officials. He had no control over his movements at the time he was returned to this country in January 1946 (subsequent to his dishonorable discharge on September 10, 1945), and, inasmuch as his departure from this country was under orders of the United States Armed Forces, his return in 1946 cannot be considered as an entry for the purposes of the immigration laws. During the period of his confinement for the above offense, he volunteered as a subject for malaria control experiments and, in consequence, was paroled on November 18, 1948.
On January 24, 1950, his citizenship was cancelled in the United States District Court, Eastern District of Michigan, Southern Division.
Warrant for his arrest in deportation proceedings issued on May 8, 1951, on the ground that he was deportable under the Immigration Act of 1924 in that at time of entry in 1941 he was an immigrant not in possession of a valid immigration visa. On December 18, 1951, a hearing officer found him deportable on the charge stated in the warrant of arrest, but concluded that he was not deportable under section 19 of the Act of February 5, 1917, on the ground that on or after May 1, 1917, he had been sentenced to imprisonment for a term of a year or more because of conviction in this country of a crime involving moral turpitude, committed within five years after entry, to wit: murder. Upon appeal, on May 13, 1952, the Assistant Commissioner affirmed the foregoing decision and certified the case to this Board.
On January 25, 1954, this Board directed that the respondent be deported from the United States on the charge stated in the warrant of arrest and on the lodged charge. The determination that the respondent was deportable on the lodged charge was based on a previous decision by this Board in Matter of F----, A-6776210, 5 IN Dec. 56, B.I.A., January 9, 1953, that a conviction by a court martial in Germany was a conviction "in this country" within the purview of section 19 (a) of the Immigration Act of 1917, as amended. Since we found that the alien was deportable on the lodged charge, it was held that section 19 (d) of the Immigration Act of 1917, as amended, precluded the granting of voluntary departure or suspension of deportation on the basis of residence and/or serious economic detriment to the respondent's aged and infirm mother. It was further concluded that relief under the seventh proviso to section 3 of that act, could not be granted nunc pro tunc because of the absence of a record of lawful admission for permanent residence.
Counsel, in his motion for reconsideration, has drawn the attention of this Board to the decision rendered in the United States District Court, District of Columbia, in the above-cited Matter of F----, ( supra), subsequent to the entry of the order by this Board in that case on January 9, 1953, and has asserted that in the light of that decision the position taken by this Board in the instant case is contrary to law.
On April 28, 1954, in the above-cited Matter of F----, ( Herbert Friedenberg v. Brownell, Civil Action No. 2225-53, unreported), the District Court, District of Columbia, granted the plaintiff's motion for a summary judgment. The court ruled that despite the Government's attempts to interpret the statute in the light of other provisions of the statute and analogous court decisions, it was bound by the plain common-sense meaning of the words "in this country," as found in section 19 (a).
In the light of the foregoing decision overruling the precedent relied on by this Board in finding the instant respondent deportable on the lodged charge, we are constrained to find that this Board was in error in ruling that the respondent is deportable on that charge. Our order of January 25, 1954, will therefore be revoked insofar as it relates to this charge.
Inasmuch as the respondent is no longer deportable on a ground falling within section 19 (d) of the Immigration Act of 1917, the issue of discretionary relief must now be reexamined.
From a review of the record before us, we are unable to find any application for discretionary relief pending prior to the Immigration and Nationality Act. The respondent, therefore, must establish eligibility for such relief under the Immigration and Nationality Act. Section 101 (f) of that act provides:
No person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established, is, or was — * * *
(8) one who at any time has been convicted of the crime of murder.
Since the respondent is precluded from establishing good moral character, he cannot be found eligible for any discretionary relief.
In arriving at this conclusion, we are fully mindful of the evidence of record reflecting that the respondent has lived practically his entire life, since the age of one, in the United States; that he has an aged and infirm legally resident alien mother dependent upon him for support; that he entered the armed forces of this country in 1941 and continued to serve in the armed forces until 1945; that, without minimizing the gravity of the offense of which he was convicted, the offense in question occurred under the stress of abnormal war conditions; that while serving his term of imprisonment, he volunteered for malaria control experiments and is still afflicted to some extent with disease contracted during that experiment; that his services in this connection were regarded as sufficiently meritorious to warrant the issuance of a certificate of merit by the Administrator of the Federal Security Agency and the Surgeon General of the United States Public Health Service, and to result in his parole; that his parole officer has recommended that he be considered for clemency and has called him a fit subject for restoration to military duty; and, lastly, that since his release he has effected what is apparently a complete rehabilitation, has been regularly employed, and, as evidenced by an affidavit from his supervisor, has been a person of good habits and a reliable worker. Notwithstanding these considerations, it would appear that the respondent's only recourse rests in the introduction of a private bill in the Congress for his relief or alternatively, in obtaining a pardon for his conviction of murder with a view of securing a nonquota immigrant visa with which he may lawfully enter the United States for permanent residence.
Order: It is ordered that the order entered on January 25, 1954, by this Board be revoked insofar as it relates to deportability on the lodged charge, and that the order entered by the Assistant Commissioner on May 13, 1952, directing that the alien be deported from the United States on the charge stated in the warrant of arrest, be affirmed.