A-3732346.
Decided by Board May 5, 1954. Approved by Attorney General July 28, 1954.
Advance permission to return to unrelinquished domicile — Section 212 (c) of Immigration and Nationality Act.
An alien who resided in the United States for 8 years following an entry in 1940 which was unlawful is not eligible for relief under section 212 (c) of the Immigration and Nationality Act since he does not have the unrelinquished lawful domicile of 7 consecutive years required by that section.
BEFORE THE BOARD
(May 5, 1954)
Discussion: The District Director at Boston, Mass., in a decision dated April 7, 1954, denied the alien's application for advance exercise of the discretion contained in section 212 (c) of the Immigration and Nationality Act. The case now comes before us on certification.
This record relates to a 61-year-old male alien, a native and citizen of Italy. He first entered the United States on August 29, 1913, at New York for permanent residence, remaining in this country until December of 1924 when he departed through the same port for Italy. He remained in Italy until his departure from that country immediately prior to his arrival in the United States at the port of New York on his second entry on July 13, 1925. At that time he was detained at Ellis Island and appeared before a board of special inquiry on the same day. He was thereupon excluded as one who admits the commission of a crime involving moral turpitude, namely: bigamy and adultery. He failed to appeal and was deported from the United States on July 18, 1925.
The subject again came to the United States, arriving at the port of New York on May 9, 1940. He then presented nonpreference quota immigration visa No. 3062 issued to him by the American Consul at Naples, Italy, on April 29, 1940, and he was admitted. On December 29, 1948, a warrant was issued for his arrest on the ground that he was in the United States in violation of the Immigration Act of May 26, 1924, in that he was, at time of entry, not entitled under said act to enter the United States for the reason that the immigration visa which he presented was not valid because procured by fraud or misrepresentation.
He was also charged with violation of the act of February 5, 1917, in that he admitted having committed a felony or other crime or misdemeanor involing moral turpitude prior to entry into the United States, to wit: bigamy. The subject departed from the United States without awaiting a determination of the legality of his residence in this country. Accordingly, a reentry permit for which he had applied was not issued to him.
The district director's decision is based on a finding that the subject alien does not have the lawful unrelinquished domicile in the United States of seven consecutive years required by the provisions of section 212 (c) of the Immigration and Nationality Act. If the district director is correct in this respect, then there is no basis upon which to predicate a grant of the relief requested. Accordingly, the issue presented by this case is readily apparent.
Determination of this case depends upon the question of whether the subject's 1940 entry was lawful. In this connection, consular immigration visa No. 3062, which is part of this record, was submitted by this alien at the time of the entry in question. Examination of that document reveals that the subject failed, in answer to question 24 thereon, to state that he had been previously deported. At page 5 in a statement made to an officer of the Immigration and Naturalization Service at Hartford, Conn., on December 8, 1947, the subject states that he did not furnish this information to the American consul because he knew that if he did the American consul would have refused him the immigration visa. He claimed that he did not inform the American consul of the pertinent facts in this regard because he was not asked specifically about them. He has further stated that his application for the immigration visa was filled out by one of the secretaries at the American consulate, that he was the director of a restaurant in Naples at which the American consul was patron and knew him, and that he did not wish the consul to know of his difficulties in the United States. However, the fact remains that he did conceal the information required to be given and did so because he knew that revelation of the pertinent facts would lead to the refusal of the visa by the American consul.
On the basis of the foregoing, it is clear that the subject alien's entry in 1940 was not a lawful one for permanent residence. This Board has consistently held that failure to disclose prior deportation amounts to fraud and misrepresentation in the procurement of the immigration visa and, accordingly, renders the entry gained thereby unlawful ( Matter of C----, A-4852428, 3 IN Dec. 662). Therefore, the district director correctly denied the subject's application for advance permission to enter the United States under section 212 (c) of the Immigration and Nationality Act, and his decision must be affirmed.
The alien has stated that he was married to T---- S---- in Scafati, Italy, on February 10, 1910, and that that marriage has never been terminated. A document contained in the visa shows that he was married to the woman claimed on March 14, 1911. He has further stated that in 1917 or 1918 he married one R---- H---- in Hartford, Conn., without securing a divorce from his first wife. The record contains a photostatic copy of marriage certificate of this alien and one R---- H---- obtained from the Department of Health, Hartford, Conn., which establishes the fact that he and R---- H---- were married in Hartford, Conn., on May 8, 1919. He has admitted, page 7 of the statement to immigration officer on December 8, 1947, that he knew he was committing the crime of bigamy when he married R---- H----. The alien has claimed that he was forced into the marriage with R---- H---- by police officials who found the two of them in bed together, but the fact remains that the police officers, according to his testimony, asked him if he was married at the time and he denied it. In addition, there is evidence in the record to indicate that he contracted a third marriage under an assumed name with a B---- S----, but the alien claimed that he did not marry that woman, merely taking out a marriage license.
The foregoing evidence substantiates the statement in the district director's decision that the alien appears to be inadmissible to the United States under the provisions of section 212 (a) (9) of the Immigration and Nationality Act as one who has admitted the commission of a crime involving moral turpitude, to wit: bigamy; and that he may be inadmissible to the United States under the provisions of section 212 (a) (19) of the same act as an alien who has procured a visa by fraud or willfully misrepresenting a material fact.
On the basis of the foregoing, we find that the decision of the district director must be affirmed and we will now so order.
Order: It is ordered that the decision of the District Director, Boston, Mass., dated April 7, 1954, denying the subject alien's application for advance permission to return to unrelinquished domicile in the United States, under section 212 (c) of the Immigration and Nationality Act be and the same is hereby affirmed.
(July 28, 1954)
There is no basis in the record for the exercise of discretion pursuant to section 212 (c) of the Immigration and Nationality Act of 1952.
The decision and order of the Board of Immigration Appeals dated May 5, 1954, are hereby approved.