E-6746.
Decided by Board August 19, 1955. Commissioner's Motion August 22, 1955. Order of Certification August 26, 1955. Approved by Attorney General October 18, 1955.
Voluntary departure — Stowaway.
Because of special circumstances in the case, voluntary departure and pre-examination with nunc pro tunc permission to reapply are authorized despite respondent's short residence, entries as a stowaway, and deportation from the United States in 1952, and the fact that his marriage to a legally resident alien did not occur until more than a month after entry of an order of deportation.
CHARGES:
Warrant: Act of 1952 — Section 241 (a) (1) — Stowaway. Act of 1952 — Section 241 (a) (1) — Deported, consent to reapply for admission not granted.
BEFORE THE BOARD
(August 19, 1955)
Discussion: This case comes forward on appeal from an order entered by the special inquiry officer on May 19, 1955, denying the respondent's motion requesting the withdrawal of the outstanding order of deportation and further requesting that he be permitted to depart voluntarily from the United States, in lieu of deportation. The respondent, a 26-year-old married male, native of Scotland and subject of Great Britain, has resided continuously in the United States since his last arrival at New York, New York, as a stowaway aboard the SS. Queen Elizabeth in April 1953. The record reflects the respondent was deported from the United States through the port of New York on December 19, 1952.
Deportation proceedings were instituted against the respondent on March 18, 1954, and on April 9, 1954, the special inquiry officer entered an order directing that the respondent be deported pursuant to law on the charges stated in the warrant issued for his arrest on March 18, 1954. No appeal was taken from the aforementioned order of the special inquiry officer, who found that the respondent had established statutory eligibility for the discretionary relief of voluntary departure but denied such relief as a matter of administrative discretion.
Evidence in the nature of a photostatic copy of a certificate has been submitted showing that the respondent was married to a native and citizen of Cuba, lawfully admitted to the United States for permanent residence, at Jersey City, New Jersey, on May 15, 1954. The respondent on appeal asserted that his wife is pregnant and is expected to be delivered of her child on August 25, 1955. The remaining facts in this case have been heretofore covered and need no further discussion herein.
Under the applicable regulations (8 C.F.R. 242.61 (f) (2)), it is provided that no appeal shall lie from an order of a special inquiry officer denying an application for voluntary departure as a matter of discretion where the alien has been in the United States for a period of less than five years at the time of the service of the warrant of arrest. While this Board is not in a position to grant discretionary relief on appeal, we will direct that this case be certified to us in accordance with the provisions of 8 C.F.R. 6.1 (c). On the basis of such certification and upon consideration of all the evidence of record, we have concluded to grant the respondent the privilege of voluntary departure and preexamination for which he is eligible under the provisions of part 485, 8 C.F.R. Furthermore, we have concluded to grant the respondent permission to apply for readmission to the United States after arrest and deportation. Accordingly, the following order will be entered.
Order: It is ordered that the alien's case be certified to this Board in accordance with the provisions of 8 C.F.R. 6.1 (c).
It is further ordered that the outstanding order of deportation be withdrawn and the alien be permitted to depart from the United States voluntarily without expense to the Government, to any country of his choice, within such period of time, in any event not less than 60 days, and under such conditions as the officer in charge of the district deems appropriate (conditioned upon consent of surety).
It is further ordered that if the alien does not depart from the United States in accordance with the foregoing, the order of deportation be reinstated and executed.
It is further ordered that the alien's preexamination be authorized, conditioned upon his being able to obtain the prompt issuance of an immigrant visa.
It is further ordered that the alien be granted permission to apply for readmission to the United States after arrest and deportation.
(August 22, 1955)
Discussion: The facts of this case are set forth in the opinion of the special inquiry officer dated May 19, 1955, denying the respondent's motion to reopen and for reconsideration of the order of deportation dated April 9, 1954. Despite the alien's entries as a stowaway in March 1952, his deportation from the United States in December 1952, his subsequent illegal entry as a stowaway in April 1953, his criminal record, and the fact that his marriage to a legally resident alien did not occur until May 15, 1954, more than a month after the entry of the order of deportation, the Board has granted voluntary departure and preexamination and nunc pro tunc permission to reapply.
Convicted of assault in Trinidad, British West Indies, in 1952 and sentenced to 40 days in jail; convicted of breaking and entering in Southampton, England, in 1948 and placed on probation; convicted of being drunk and disorderly in San Diego, California, in 1950 and fined $10.00.
The circumstances in this case clearly lack merit. To exercise discretion in favor of this deportable alien would be to reward him for his successive violations of the immigration laws and to impede the Service in discharging its enforcement responsibilities under these laws. Accordingly, it is believed that this case should be reviewed by the Attorney General.
Request is hereby made that this case be referred to the Attorney General for review pursuant to the provisions of 8 C.F.R. 6.1 (h) (1) (iii).
(August 26, 1955)
Discussion: When this case was before this Board on August 19, 1955, in regard to discretionary relief we took the case on certification, withdrew an order of deportation entered by the special inquiry officer, granted the respondent voluntary departure, and authorized preexamination and permission to reapply after deportation. This would aid the respondent in securing permanent, legal residence in the United States. It was taken because of the humanities of the case. The respondent's wife was to give birth to a child about August 25, 1955. She has no one to turn to for support but her husband. We thought, and still think, the respondent should be here to take care of his wife and expected child.
When the case previously was before the Board and the respondent was heard in oral argument in his own behalf, the Service did not see fit to make representations to the Board although it has a representative with the Board for that purpose. Now, a motion is filed with the Board by the Service asking that the case be certified to the Attorney General for review of the Board's decision. As a reason for this action, the Service in its motion states:
The circumstances in this case clearly lack merit. To exercise discretion in favor of this deportable alien would be to reward him for his successive violations of the immigration laws and to impede the Service in discharging its enforcement responsibilities under these laws.
Let us look to the facts.
The respondent, now 26 years old, was born in Scotland. At the age of 14 he left home to earn his own living and became a seaman. This calling he followed until after his last arrival in the United States. As a seaman he made innumberable entries into this country. In 1949, while a seaman on the SS. America of the United States Lines, the respondent married an American girl. This marriage lasted only three months, when his wife deserted him for another man.
In December 1952, the respondent was deported from this country because he had entered in March of that year as a stowaway and without the required immigration documents. The circumstances surrounding the arrival in 1952 are not revealed in the present record.
Technically, the respondent last entered the United States as a stowaway in April 1953 on the SS. Queen Elizabeth. For a short while after the respondent's deportation, he stayed in Glasgow, Scotland. Then he went to Southampton, England, for the purpose of resuming his career as a merchant seaman. Upon arrival at Southampton he was told he was no longer a member of the seamen's pool, and therefore it was impossible for him to ship out. Being stranded, with no money and no work, he thought he would go to New York for a while to look up his wife and secure a divorce if possible. The respondent had previously worked as a fireman on the SS. Queen Elizabeth and, as a consequence, knew many members of the crew of that ship. He borrowed the pass of a seaman then employed on the SS. Queen Elizabeth, and with this he was able to board the vessel. He mingled with the firemen, slept in the firemen's quarters, ate in the firemen's mess, and upon arrival at New York borrowed the pass of another seaman, and with this pass he was able to leave the ship. He paid no money to any one in this connection.
After entering the United States, the respondent joined his mother in San Diego, California. The mother has been a lawful resident for over five years. He also has a married sister who is a lawful resident too. His father is dead and there are no close family ties in Scotland.
At the time of the deportation hearing on April 9, 1954, the respondent was going with a girl, C---- G----, whom he wished to marry but thought he could not because of his prior marriage. Later he discovered his first wife had divorced him on October 30, 1952. After securing evidence of this divorce and on May 15, 1954, the respondent married C----. She has been a lawful resident for the past five years.
In oral argument before the Board, it was explained that C---- had no relatives or family in New York City and no one to whom she could turn for help if her husband is deported. (A married sister in Miami with three small children has all she can do to take care of her own family.) The wife being about to give birth to a child, obviously, is in no position to support herself and the child about to be born.
The motion of the Service refers to the respondent's criminal record as a detrimental factor. The file before us does not contain records of convictions. All we know about the so-called criminal record comes from the mouth of the respondent. In 1950, in San Diego, the respondent was fined $10 for being drunk and disorderly. In 1952, being the only Scotchman in an otherwise English crew, he got into a foolish argument, and then a fist fight, over whether the present Queen of England is Elizabeth I or Elizabeth II of Scotland. When the ship touched at Trinidad he was prosecuted and sentenced to 40 days in jail. In connection with this episode, when appearing before the Board, the respondent had this to say:
I am not the least bit sorry for that. I will be quite honest with you Sir. I don't regret nothing there. I really mean it. I am not sorry for one day that I spent for those people, in jail. I am not a thief or bandit or something like that. I mean you can trace my record right back to school. I worked hard all my life. I have worked hard since I left school at 14. Any time I got a dollar I did an honest day's work for it. That is a fact.
The third conviction is referred to as breaking and entering. The respondent's description of events leading up to this conviction (for which he was placed on probation and not required to serve any time in jail), is as follows:
At that time I wasn't put in jail because it is the first time I had been in trouble. I had an excellent war record and never was involved in any kind of trouble. But this particular case on the night in question there were 3 of us, and we had a pound between us. So we didn't know whether to get a hotel room with the pound or to save it for something to eat. It was very, very hard to get a job then. So there was a lot of houses on the side street, which had been bombed during the war. They were deserted houses, roofs fallen in, and they were vacant houses. So we decided that we would sleep in one of the bombed houses and save the pound note. We went into one of them and were sound asleep when somebody saw us going in. As a matter of fact there was no roof on it.
The fire bombs had destroyed the buildings almost completely.
Someone called the police and they came and I was sound asleep. They asked us what we were doing. We told them we were seamen. They said why don't you go into the seamen's institution? A seamen's institution cost money and we didn't have it. So we had to go to jail, we went to jail; we went before the judge and he gave us probation because we had never been in any trouble of any kind and he knew there was no intent to commit a crime or a felony or anything like that. Because it wasn't as if we were burglars because there was nothing to steal, just a vacant house.
These convictions are not serious and clearly do not reflect against the respondent's moral character.
In his appearance before the Board, the respondent succinctly states his case in the following words:
I had been going to sea since I was 14. I never had a home life. Now that I have my own apartment in New York, a steady job, I am married and a baby coming, I want to settle down and become an honest, decent citizen. My boss is very fond of me. He said he knows about my trouble, I explained it to him, and he says that when I leave the United States, if I can come back my job is waiting for me.
We agree with the respondent that he should be given a chance to settle down and support his wife and child. We fail to see how being humane in this case will "impede the Service in discharging its enforcement responsibilities."
Order: It is ordered that the case be certified to the Attorney General for review of the Board's decision pursuant to the request of the Assistant Commissioner of Immigration and Naturalization and in accordance with Title 8, Code of Federal Regulations, section 6.1 (h) (1) (iii).
(October 18, 1955)
The decision and order of the Board of Immigration Appeals, dated August 19, 1955, are hereby affirmed.