A-5388920
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) In determining whether or not the deportation of an alien would result in "exceptional and extremely unusual hardship" within the meaning of section 244 (a) of the Immigration and Nationality Act, some of the factors to be considered are: (1) Length of residence in the United States (including consideration of manner of entry and fact that respondent entered the United States prior to the enactment of a suspension statute), (2) family ties, (3) possibility of obtaining a visa abroad, (4) financial burden on the alien of having to go abroad to obtain a visa, and (5) the health and age of the alien.
(2) It is not necessary that all of the aforementioned factors be present in every case in order to find the necessary degree of hardship, but at least several factors should be present.
CHARGE:
Warrant: Act of 1924 — Remained longer — Transit.
BEFORE THE BOARD
Discussion as to Deportability: Respondent is 48 years old, single, female, a native and citizen of the British West Indies, who last entered the United States at the port of Buffalo, N.Y., by train from Canada on September 13, 1925. That entry has been verified. Respondent was admitted in transit to the British West Indies. At the time of her entry in 1925 it was her intention to proceed to the British West Indies after visiting relatives in this country. She has stated that after she had been here a little while her mother in the British West Indies died. Having some relatives here and no remaining close relatives in her native country, she decided to remain permanently in the United States. She is deportable on the charge stated in the warrant of arrest.
Discussion as to Eligibility for Suspension of Deportation:
Respondent has applied for the privilege of suspension of deportation under section 244 (a) (1) of the Immigration and Nationality Act of 1952. The special inquiry officer held that she is not eligible for suspension of deportation under that section of the statute, and granted her voluntary departure.
In order to qualify for suspension of deportation under section 244 (a) (1) of the 1952 act it is necessary that the alien comply with certain requirements set forth in that statute. Those requirements and the manner in which respondent has complied with them are as follows:
(1) The alien must have applied to the Attorney General for suspension of deportation within 5 years after the effective date of the act which is December 24, 1952. The hearing was reopened in order that this alien could apply under the present law, which she did on March 24, 1953.
(2) She must have entered the United States more than 2 years prior to the passage of this act. Respondent last entered the United States in 1925, and has lived in the United States continuously for almost 28 years.
(3) She must be deportable under any law of the United States, but must not have been a member of any class whose deportation could not have been suspended by reason of section 19 (d) of the Immigration Act of 1917, as amended. Respondent is not now and never has been a member of or associated with any of the organizations proscribed by that section of the 1917 act, nor has she ever been found to have been a criminal, prostitute, or mentally or physically defective at time of entry, or a member of any of the other classes described in section 19 (d) as persons to whom suspension of deportation may not be granted.
(4) The alien must have been physically present in the United States for 7 years before her application for suspension of deportation. As stated above, respondent has been in the United States continuously for almost 28 years.
(5) The alien must be a person of good moral character. The special inquiry officer found, and the record sustains his finding, that respondent has been a person of good moral character for the 7 years immediately preceding the date of her application for suspension of deportation.
(6) It must be found that deportation of the alien would result in "exceptional and extremely unusual hardship" to the alien or to his citizen or legally resident alien spouse, parent or child. In determining whether or not the deportation of the alien would result in "exceptional and extremely unusual hardship" we consider, among others, the presence of certain basic factors. It is not necessary that all factors be existent in every case in order to find the necessary degree of hardship, but at least several factors should be present:
( a) Length of residence in the United States. As we have stated, this alien has been present in the United States almost 28 years. Respondent has stated that, once having been admitted to the United States from Canada, she did not realize that it was illegal for her to remain permanently. Hers was not a surreptitious entry. It is important also that since there was no suspension statute in existence until 1940, respondent clearly was not an alien who entered the United States with the preconceived intention of avoiding immigration restrictions and apprehension until it became possible to take advantage of the suspension provisions.
( b) Family ties. Respondent is single, and her closest relatives in the United States are two aunts. Therefore she does not present the factor of close relatives or dependents.
( c) The possibility of obtaining a visa abroad. The respondent comes from the British West Indies, St. Kitts, which is in the Leeward Islands. Under the Immigration and Nationality Act of 1952 the annual quota for this group is 100, within the quota for Great Britain and Northern Ireland. This quota is presently overscribed. It would probably be necessary for respondent to wait a considerable time before she would be able to secure a quota immigration visa.
( d) The financial burden on the alien of having to go abroad to obtain a visa. Respondent has always worked since she has been in the United States, and has never received public assistance. However, she has spent considerable money helping her relatives in the British West Indies, and is a person with very limited assets, apparently possessing approximately $1,400. For the past 6 years she has been employed at a children's day nursery, where she is considered a valuable employee, and earns $48 a week. Respondent never worked in the British West Indies, and believes that it would be difficult for her to secure employment in that country.
( e) The health and age of this alien are not such that it would be difficult for her to undertake the journey to her native country.
It is our opinion that deportation of this alien would constitute exceptional and extremely unusual hardship to her, because of the length of time she has lived in the United States, because of the length of time it would take her to obtain a visa in her native country, and because of her limited assets. It is our opinion that for these reasons, and because respondent meets the other requirements of the statute, as set forth above, she is a person who is entitled to suspension of deportation.
Order: It is ordered that the order of the special inquiry officer of March 24, 1953 be withdrawn.
It is further ordered that the deportation of the alien be suspended under the provisions of section 244 (a) (1) of the Immigration and Nationality Act.
It is further ordered that if during the session of the Congress at which this case is reported, or prior to the close of the session of the Congress next following the session at which this case is reported, the Congress passes a concurrent resolution stating in substance that it favors the suspension of such deportation, the proceedings be canceled upon the payment of the required fee and that the alien if a quota immigrant at the time of entry and not then charged to the appropriate quota, be so charged as provided by law.
Before the Board February 17, 1954
By order dated August 13, 1953, we granted the respondent suspension of deportation in accordance with the provisions of section 244 (a) (1) of the Immigration and Nationality Act.
It has been called to our attention that through inadvertence the final paragraph of our order was improperly phrased. Consequently, we will direct that our order of August 13, 1953, be amended by substituting a corrected final paragraph.
Order: It is ordered that our order of August 13, 1953, be amended by withdrawing the final paragraph and substituting the following:
It is further ordered that if the Congress takes no action adverse to the order granting suspension of deportation, the proceedings be canceled, and the alien, if a quota immigrant at the time of entry and not then charged to the appropriate quota, be so charged as provided by law.