A-5349697
Decided by Board September 29, 1948 Ruling by Attorney General January 12, 1949 Decided by Board April 18, 1949
Seventh proviso relief — Advance exercise thereof — Section 3 of the Immigration Act of 1917 — Discretion.
An alien convicted for violation of title 18, section 80, U.S.C., title 8, section 414, U.S.C., and sections 127 and 37, Crim. Code: aiding and abetting a person not entitled thereto to apply for naturalization, falsely swearing under oath in a naturalization proceeding and conspiring to do so, will be granted seventh proviso relief where it appears that sentence is suspended and the alien has no other criminal record, has had long residence here, his citizen wife and son reside here; and his conduct is otherwise favorable.
CHARGES:
Warrant: Act of 1924 — No immigration visa.
Act of 1917 — Convicted of and admits commission of crime prior to entry: aiding and abetting a person not entitled thereto to apply for naturalization and for falsely swearing under oath in a naturalization proceeding and conspiring so to do.
BEFORE THE BOARD
(September 29, 1948)
Discussion: The problem here is whether the record justifies exercise of discretionary relief.
The alien is 56 years old and a native and citizen of Italy. He last entered the United States on June 20, 1936, at the port of New York. He first arrived February 20, 1923, and was excluded as one coming in excess of the quota to which he was chargeable; however, he was admitted for 6 months under bond and finally departed in May of 1925. Later that year he gained entry to the United States upon presentation of a nonquota immigration visa, issued to him upon representation that he was a legal resident of the United States.
On January 19, 1932, the alien was indicted in the U.S. District Court for the Southern District of New York, upon his plea of guilty, for violation of title 18, section 80, U.S.C., title 8, section 414, U.S.C., and sections 125 and 37, Crim. Code: aiding and abetting a person not entitled thereto to apply for naturalization, falsely swearing under oath in a naturalization proceeding and conspiring to do so. On February 8, 1932, he was sentenced to imprisonment for a term of 2 years, which sentence, however, was suspended, in order that his deportation could be effected. He was paroled into the custody of his counsel.
On March 14, 1933, the alien was ordered deported to Italy on the ground that at the time of his entry on July 25, 1925, he was not a nonquota immigrant as specified in the immigration visa he presented at the time of said entry. On March 25, 1933, he was permitted to depart voluntarily under the warrant of deportation.
In June of 1936, the alien returned to the United States as a stowaway. By reason of this entry he becomes deportable on the charges set forth in the caption hereof.
The only criminal record against the alien is the 1932 conviction, set forth heretofore. As to this, the alien explained that a countryman of his, who was illegally in the United States, sought his assistance in legalizing his immigration status; that upon the advice of a third individual he introduced said countryman to a notary public; that he was unaware that said third individual would use unlawful means to accomplish the result mentioned; and that the only gain he received was $25 from said third individual for referring a client to him.
There is no intimation that this alien was engaged in an illegal process designed to fraudulently accomplish the adjustment of immigration and naturalization status of aliens not entitled thereto. The record establishes one such instance, and, if the alien's explanation is accepted, he was an unwitting tool of one who operated unlawfully.
As stated, and the record does not establish otherwise, the alien has had no criminal history either before or after the incident in question. The alien has had residence in the United States for a total of more than 20 years. He has resided here continuously since his last entry in June of 1936. He has been married to the same woman since October of 1920. She is a citizen of the United States. They have a son, 26 years of age, unmarried, who is a teacher at the Long Island University, City of New York, and chairman of the department of medical sciences in that university. The alien's economic status is sound. His employment has been steady and he presently works as an assembler on surgical instruments and earns $55 weekly. His wife is also employed. He has a joint saving account with his wife amounting to $4,000, $500 in war bonds and personal effects valued at $3,000.
The alien's wife and son both appeared as witnesses and gave favorable testimony. An independent character investigation conducted by the Service proved favorable. The record also contains a letter from his present employer to the effect that he has been employed there since 1936 and is considered a satisfactory employee; and two character affidavits. In the independent character investigation several persons were interviewed and the result was favorable.
It is felt that, on the record as a whole, favorable action is not unjustified at this time. The alien has had long residence here. His wife and son are both citizens of this country and the family is held in high esteem by the community in general. The alien does not have any extensive criminal record, and his behavior prior and subsequent to the conviction mentioned indicates that we are not dealing with a confirmed criminal. In fact, the alien has always been self-supporting and has worked for a living. Both his wife and son testified favorably and the latter, according to the alien, is preparing to enter the medical profession. Drastic action at this time would not be commensurate with the record as a whole.
Order: It is ordered that the alien be granted permission to reapply for admission after arrest and deportation.
It is further ordered that an order of deportation be not entered at this time but that the alien be required to depart from the United States, without expense to the Government, to any country of his choice within 6 months after notification of decision, conditioned upon arrangements being made with the local immigration office for verification of departure.
It is also further ordered that if the alien reapplies for admission within 3 months from the date of his authorized departure, he be admitted, if otherwise admissible than as one convicted February 1, 1932, of aiding and abetting a person not entitled thereto to apply for naturalization, and falsely swearing under oath in a naturalization proceeding and conspiring to do so, or as one who admits the commission thereof, in accordance with the discretion contained in the seventh proviso to section 3, Immigration Act of 1917, as amended, subject to revocation in the discretion of the Attorney General, after hearing, if the alien hereafter commits any crime.
The decision and order of the Board of Immigration Appeals dated September 29, 1948, are hereby approved.
Discussion: In this case the Board entered an order on September 29, 1948, granting the alien permission to reapply after arrest and deportation, voluntary departure and readmission under the discretion contained in the seventh proviso to section 3, Immigration Act of 1917. This action was approved by the Attorney General on January 12, 1949.
It now develops that while we considered the case as one in deportation proceedings, actually the matter was one for advance exercise of discretion, since the alien departed from the United States prior thereto, namely, on May 23, 1947. Since the oversight was merely a matter of form, we will amend the order accordingly, that is, delete the voluntary departure privilege as unnecessary; also the wording of the seventh proviso grant will be amended to delete reference to departure aspect for the same reason.
Order: It is ordered that the alien be granted permission to reapply for admission after arrest and deportation.
It is further ordered that if the alien applies for admission within 3 months from the date hereof, he be admitted, if otherwise admissible than as one convicted February 1, 1932, of aiding and abetting a person not entitled thereto to apply for naturalization, and falsely swearing under oath in a naturalization proceeding and conspiring to do so, or as one who admits the commission thereof, in accordance with the discertion contained in the seventh proviso to section 3, Immigration Act of 1917, as amended, subject to revocation in the discretion of the Attorney General, after hearing, if the alien hereafter commits any crime.