E-082600
Decided by the Board August 13, 1953
Suspension of deportation — Section 244 (a) of the Immigration and Nationality Act — Exceptional and extremely unusual hardship.
(1) The deportation of a native and citizen of Germany who last entered the United States in 1934 by falsely claiming to be a returning resident would not result in the degree of "exceptional and extremely unusual hardship" required by section 244 (a) of the Immigration and Nationality Act since he is able to finance a trip abroad, should have no difficulty securing a nonquota immigrant visa as the husband of a United States citizen, and is only 49 years of age.
(2) The necessary hardship does not exist in cases where the applicant is nonquota or came from a country with an open quota, unless he is almost indigent, or is unable to travel, or for some reason would be unable to secure a visa.
CHARGE:
Warrant: Immigration and Nationality Act — Excludable at entry under 1924 Act — No immigration visa.
BEFORE THE BOARD
Discussion: Respondent is a native and citizen of Germany, 49 years old, married, male, who last entered the United States during September 1934 from Canada, departing from Montreal and destined to New York City. He had lived in the United States during several periods prior to this entry. On the last occasion he obtained entry by stating that he was a lawful resident of the United States and had been absent in Canada for a temporary visit for a few days only. At that time it was his intention to reside permanently in the United States. He was an immigrant not in possession of an immigration visa, and he is deportable on the charge stated in the warrant of arrest.
Respondent has applied for suspension of deportation under section 244 (a) (1) of the Immigration and Nationality Act of 1952. Respondent has complied with the jurisdictional requirements of that section.
Respondent applied for suspension of deportation on March 2, 1953, which was within the statutory period. The alien last entered the United States more than 2 years prior to the passage of the act. The alien is not a member of a class whose deportation could not have been suspended by reason of section 19 (d) of the Immigration Act of 1917, as amended.
The special inquiry officer found that there is no evidence that the respondent has any arrest or criminal record or has been connected with any subversive groups. He submitted evidence to show that he is a person of good moral character and has been such a person for more than the preceding 5 years. His only difficulty occurred in 1921 before he was 18 years of age. He testified that he was arrested and charged with the unauthorized sale of a suit of secondhand clothing, and, having no money, spent 30 days in jail as a penalty. He admits that he had not yet paid for the garment when he sold it, but expected to do so as soon as possible. The special inquiry officer properly concluded that the offense was similar to embezzlement, that respondent had not admitted the commission of a crime involving moral turpitude and that the incident described does not constitute conviction of a crime involving moral turpitude. The records pertaining to the case, if there are any, are in Leipzig and are not available because that city is located in the eastern zone of Germany, controlled by a Communist form of government.
The respondent was first admitted to the United States for permanent residence on May 20, 1904, with his parents and one brother. He lived in the United States for 5 years at that time and then returned to Leipzig, Germany, with his parents. Respondent next entered the United States in 1923 as a stowaway. He remained in the United States from 1923 until 1933 when he went abroad with his wife and child for the purpose of visiting his mother who was seriously ill.
While in Germany on the last visit he inquired at a United States Consulate as to the possibility of obtaining an immigration visa. He was informed that his wife must submit to Washington a visa petition in his behalf and that it would take some time for such a document to be approved. He was anxious to return to the United States quickly, and decided to attempt an entry through Canada rather than to wait for a visa. He then made the illegal entry described in the first paragraph above.
Having entered the United States in 1923, respondent made an application for registry under the Nationality Act of 1940 on November 30, 1949. The hearing officer found that respondent had established satisfactorily that he had resided in the United States from 1923 to 1950 with the exception of the year from 1933 to 1934 when he was in Germany. Respondent also established that he had been a person of good moral character for the requisite 5-year period. However, his application for registry was denied on October 25, 1950, because of his illegal entry into the United States in September 1934. Had it not been for that trip to Germany and the subsequent unlawful entry, respondent probably would have been granted registry.
The special inquiry officer denied respondent's application for suspension of deportation in the present proceeding because he found that deportation of respondent would not result in "exceptional and extremely unusual hardship" to respondent and his family. Respondent's family ties are in the United States. He is married to a naturalized United States citizen, has one United States citizen child, now adult and not dependent on him. His parents in Germany are deceased, and he has no relatives abroad. He is the proprietor of a grocery and delicatessen store, and he testified that his wife is not physically able to operate this business alone. She helps in the store for 3 to 5 hours a day and does her own housework. He testified that she has anemia and other physical complications. The special inquiry officer concluded that deportation of respondent would result in unusual hardship to respondent and his wife, but believed that the degree of hardship which would result was not sufficiently severe to justify a finding that it would be "exceptional and extremely unusual hardship."
The record establishes that respondent and his wife own a two-family home from which they realize an income of $85 a month over the payments. They receive an income of approximately $5,000 a year from the business which they operate. They have other cash assets. Respondent would be able to finance a trip abroad to procure a visa. Because he is married to a United States citizen he would be a nonquota immigrant under section 101 (a) (27) (A) of the Immigration and Nationality Act, and he could readily obtain an immigration visa if granted the privilege of voluntary departure. They testified that if her husband were deported from the United States it would be necessary for them to dispose of the business. However, respondent also testified that during the year and 3 months he was abroad in 1933 and 1934, a friend operated the business for him.
Under the 1917 act respondent would have been eligible for adjustment of status on the grounds that he has lived in the United States more than 7 years, and also his deportation would result in serious economic detriment to his dependent United States citizen wife. However, relief under that act is no longer available to him. The new law (1952 act) requires a finding that the alien's deportation would result in "exceptional and extremely unusual hardship" to the alien or to his United States citizen or legally resident alien dependents. In the group of cases now before us which have required interpretation of the meaning of that phrase, we have not found the necessary hardship to exist in cases where the applicant was nonquota or came from a country with an open quota, unless he is almost indigent, or is unable to travel, or for some reason would be unable to secure a visa. None of these exceptions apply to respondent. As the spouse of a United States citizen he is nonquota, and should have no difficulty securing an immigration visa if he departs from the United States voluntarily with no outstanding order of deportation against him. He can finance the trip, and he is only 49 years of age. His early brush with the law was not sufficient to render him inadmissible as a person who has been convicted of, or admits the commission of a crime involving moral turpitude. The circumstances of this case do not present the degree of hardship sufficient to satisfy the requirements of the new law.
Order: It is ordered that the order of the special inquiry officer of April 14, 1953, be affirmed.