A-3214826
Decided by the Board March 20, 1953
"Savings Clause"; section 405(a), Immigration and Nationality Act, applicability to unexpired reentry permit issued prior to act — Reentry permit; equivalence to immigration visa.
(1) For purposes of section 405(a) of the Immigration and Nationality Act, an unexpired reentry permit is the equivalent of a nonquota immigration visa, issued pursuant to section 4(b) of the Immigration Act of 1924.
(2) When an alien in possession of an unexpired reentry permit issued prior to December 24, 1952, the effective date of the Immigration and Nationality Act, makes application for admission to the United States after that date, his admissibility is determined under the provisions of law in effect on the date of issuance of the reentry permit.
(3) An alien in possession of an unexpired reentry permit issued March 28, 1952, seeking admission into the United States on February 11, 1953, is admissible as a returning resident, despite his ineligibility to citizenship arising from his claim for exemption from military service, since section 13(c)(1) of the Immigration Act of 1924 is controlling and not section 212(a)(22) of the Immigration and Nationality Act.
BEFORE THE BOARD
Discussion: The case comes forward upon an appeal filed by the district director in accordance with 8 C.F.R. 236.16 from the decision of the special inquiry officer admitting the applicant for permanent residence.
The record relates to a native and citizen of Sweden, 35 years old, male, who arrived at the port of New York ex SS. Gripsholm on February 11, 1953. He seeks admission for permanent residence, presenting a valid Swedish passport and a reentry permit which had been issued to him on March 28, 1952, and which is valid until March 28, 1953. The applicant had previously been lawfully admitted for permanent residence on August 27, 1937, and had previously made a trip to Sweden from which he returned on October 27, 1947, when he was admitted as a returning resident upon presentation of a reentry permit.
The applicant had executed DSS Form 301, Application for Alien Relief from Military Service, on May 26, 1942, and by reason of this claim of exemption from military service is regarded as an alien ineligible to citizenship. (Sec. 28(c) Immigration Act of 1924; sec. 101(a)(19) Immigration and Nationality Act.) However, under the Immigration Act of 1924 the bar to admissibility applicable to aliens ineligible to citizenship did not extend to those seeking admission as a returning resident under the nonquota immigrant provisions of subdivision (b) of section 4 of that act. The special inquiry officer has found that the possession of a reentry permit was equivalent to a nonquota visa under section 4(b) of the Immigration Act of 1924 and held that the law to be applied was the law in existence at the time of the issuance of the reentry permit, namely, the Immigration Act of 1924 as specifically provided by section 405(a) of the Immigration and Nationality Act.
The district director takes issue with this conclusion that the reentry permit is included within the savings clause and the issue is thus joined.
Under the provisions of the Immigration Act of 1924 and applicable regulations, a returning resident who had previously been lawfully admitted for permanent residence may be admitted upon presentation of a nonquota immigration visa issued under section 4(b) of the act of 1924 or a reentry permit. For the purposes of entry an unexpired reentry permit is the equivalent of the immigration visa. United States ex rel. Polymeris v. Trudell, 284 U.S. 279; Rederiaktiebolaget Nordstjernen v. United States, 61 F.(2d) 808 (C.C.A. 9, 1932); Zacharias v. McGrath, 105 F.Supp. 421 (D.C.D. of C., 1952). Section 405(a), which is the savings clause of the Immigration and Nationality Act, provides that when an immigrant in possession of an unexpired immigration visa issued prior to the effective date of the act makes application for admission, his admissibility shall be determined under the provisions of law in effect on the date of the issuance of such visa. In view of the judicial pronouncements that a reentry permit is the equivalent of an immigration visa as to a returning resident, it would indeed be an absurd conclusion to hold that a section 4(b) nonquota visa would be included in the savings clause while a reentry permit would not.
The reentry permit which the applicant presents was issued March 28, 1952, and the law to be applied is the Immigration Act of 1924. It is concluded that he falls within the provisions of section 13(c)(1) of that act and that as a returning resident alien he is not inadmissible as an alien ineligible to citizenship. Accordingly, we shall dismiss the appeal of the district director. In view of the disposition we have made of the case, we find it unnecessary to consider the possible exercise of the discretion contained in section 212(c) of the Immigration and Nationality Act, the provisions of which would be applicable in the event the alien were found to be inadmissible to the United States.
Order: It is ordered that the appeal of the district director be dismissed and that the action of the special inquiry officer admitting the applicant for permanent residence be approved.