A-6603088.
Decided by Board December 1, 1954.
Savings clause — Preserves validity of charge lodged under 1917 act prior to December 24, 1952 — Suspension of deportation — Application filed under 1917 act is not a valid application under section 244 (a) of the Immigration and Nationality Act.
(1) A charge under the Immigration Act of 1917 of "admits crime involving moral turpitude prior to entry" lodged at a deportation hearing on March 27, 1952, is saved by the savings clause, section 405 (a) of the Immigration and Nationality Act, and where sustained renders the alien deportable under one of the provisions mentioned in section 19 (d) of the 1917 act.
(2) An application for suspension of deportation filed under section 19 (c) of the Immigration Act of 1917 cannot be adjudicated under section 244 (a) of the Immigration and Nationality Act. Relief under the latter act may be applied for only during a hearing in deportation proceedings under the 1952 act in accordance with regulations issued thereunder.
CHARGES:
Warrant: Act of 1924 — No immigration visa.
Lodged: Act of 1917 — Admits crime involving moral turpitude prior to entry: Perjury.
BEFORE THE BOARD
Discussion: Pursuant to certification under 8 C.F.R. 6.1 (c) this case is before us for review of an order entered by the special inquiry officer February 26, 1954, granting the respondent suspension of deportation under section 244 (a) (1) of the Immigration and Nationality Act of 1952. Notice of certification has been served upon counsel. He has waived oral argument before this Board and requests that the case be considered on the basis of his brief which he filed when the case was before the special inquiry officer.
The record relates to a native and citizen of Italy, male, married, 44 years of age, who was lawfully admitted for permanent residence at the port of New Orleans, Louisiana, on April 27, 1911, when one year of age. He has resided continuously in the United States since 1911 with the exception of a one-year absence (1943-1944) when he served overseas as a civilian employee of the Lockheed Corporation servicing United States Army bombers under army jurisdiction. He last entered the United States at the port of New York on March 2, 1944, and was admitted as a citizen upon the presentation of a United States passport. A warrant for his arrest charging violation of the Immigration Act of 1924 in that he last entered without an immigration visa was issued November 22, 1949. During the reopened hearing of March 27, 1952, the respondent was charged under the act of 1917 with admitting the commission of a crime involving moral turpitude prior to entry, to wit: Perjury. He perjured himself falsely claiming birth in the United States in connection with an application for a passport. He testified that arrangements for the passport were made by the Lockheed Corporation and he acquiesced in order that he could more effectively participate in the war effort.
The special inquiry officer in his opinion of February 26, 1954, concludes that respondent is eligible for suspension of deportation under section 244 (a) (1) of the Immigration and Nationality Act of 1952, inasmuch as he has found him not deportable under the 1917 act for the reason that this act was repealed by section 403 (a) (13) of the 1952 act and the new act does not contain a similar charge of deportation. The Assistant Commissioner, in his memorandum certifying the case to this Board, seeks a determination of the following issues: (1) the deportability of the respondent on the criminal charge lodged under section 19 of the 1917 act, (2) consideration of whether the application for suspension of deportation filed under the provisions of the act of 1917, as amended, is a valid application for relief under section 244 (a) (1) of the Immigration and Nationality Act of 1952, and (3) assuming that a valid application for relief under section 244 (a) (1), ( supra), is before us, has respondent established his eligibility for such relief in view of the criminal charge.
This Board does not agree with the conclusion reached by the special inquiry officer that respondent is not deportable on the criminal charge lodged during the hearing. This charge was lodged at the hearing of March 27, 1952, when the 1917 act was in full force and effect. While it is true that the 1952 act does not contain a similar charge and does repeal the 1917 act, nevertheless the savings clause of the 1952 act (section 405 (a)) provides, among other things, that nothing contained in the 1952 act "shall be construed to affect the validity of any * * * warrant of arrest * * * proceeding which shall be valid at the time this Act shall take effect; * * * but as to all such * * * proceedings * * * the statutes or parts of statutes repealed by this Act are, unless otherwise specifically provided therein, hereby continued in force and effect." Since the criminal charge here under consideration is saved by section 405 (a), ( supra), and is sustained by the evidence of record, we find respondent deportable under one of the provisions mentioned in section 19 (d) of the 1917 act. The fact that respondent is not deportable under the 1952 act forthe offense he has admitted subsequent to his last entry avails him nothing in this instance.
The respondent, at the hearing of April 6, 1950, filed formal application for suspension of deportation under section 19 (c) of the Immigration Act of 1917. The special inquiry officer finds that respondent is not now a member of a class of aliens whose deportation could not have been suspended by reason of section 19 (d) of the 1917 act and proceeds to adjudicate under section 244 (a) (1) of the 1952 act, an application for suspension of deportation filed under the 1917 act prior to its repeal.
The Service seeks a ruling on the question of whether an application filed under the 1917 act may be considered as a valid application under the 1952 act. The regulations dealing with applications for suspension of deportation under the 1952 act (8 C.F.R. 244.2) provides that they shall be submitted "in accordance with and subject to the provisions of 8 C.F.R. 242.54 (d)." Section 242.54 (d), ( supra), in turn provides for the submission of said application for relief "during the hearing" which, of course, means a hearing in deportation proceedings under the 1952 act. Under the circumstances, an application filed under section 19 (c) of the 1917 act cannot be carried over as a "valid application" under the 1952 act. Cf., Matter of M----, E-086054, 5 IN Dec. 472 (B.I.A., October 9, 1953). Furthermore, with regard to the third ruling requested by the Service and based upon the assumption that a valid application for relief under section 244 (a) (1), ( supra), is before us, the respondent could not establish eligibility thereunder because he is "a member of a class of aliens whose deportation could not have been suspended by reason of section 19 (d)" of the 1917 act.
The respondent seeks discretionary relief which would permit his continued residence in the United States. The respondent has resided in the United States for 43 years. He married a United States citizen in 1939 and is the father of two minor citizen children. He served honorably in the United States Marine Corps from October 1936 to October 1940. During World War II he was employed as an inspector of aircraft and in September 1943 was sent to Belfast, Ireland, by the Lockheed Corporation as a technical expert under the jurisdiction of the armed services. His deportability under the immigration laws is the end result of his desire to serve this country's war effort abroad.
The respondent owns and operates a food market valued at $10,000. His equity in this venture amounts to $3,800. His wife and children are dependent upon him for support. The respondent's good moral character is affirmatively established by the evidence of record. Investigation reveals no criminal record and there is no evidence that he has ever been a member of any subversive organization. The only offense committed by respondent is the one which renders him deportable on the lodged charge.
The respondent's application for relief under the 7th Proviso to section 3 of the Immigration Act of 1917 is preserved by section 405 (a) of the Immigration and Nationality Act of 1952, inasmuch as it was filed prior to the effective date of the 1952 act. Although respondent is a nonquota immigrant under section 101 (a) (27) of that act, the exercise of this proviso in advance in connection with voluntary departure would avail the respondent nothing because he would be subject to exclusion under section 212 (a) (19) of the 1952 act and we cannot waive a ground of inadmissibility which arises for the first time under the 1952 act with 7th proviso relief. Respondent, having lost his lawful residence by his unlawful entry in 1944, is not eligible for relief under section 212 (c) of the 1952 act which is the counterpart of the 7th Proviso to section 3 of the 1917 act.
The respondent, on the occasion of his last entry, however, could have been admitted lawfully as an alien under waivers then provided by law because there is a record of his lawful entry for permanent residence at the port of New Orleans, Louisiana, on April 27, 1911. We are here concerned solely with a documentary charge and a criminal charge. The criminal charge could have been waived under the provisions of the 7th proviso to section 3 of the Immigration Act of 1917, as amended. The requirement that respondent have an immigration visa at the time of his last entry on March 2, 1944, could have been waived, in the discretion of the Attorney General, under section 13 (b) of the Immigration Act of 1924. This discretion has been carried over into section 211 (b) of the Immigration and Nationality Act of 1952.
It has long been the administrative practice to exercise the discretion permitted by the foregoing provisions of law, nunc pro tunc, where complete justice to an alien dictates such extraordinary action. The record before us presents many sympathetic and mitigating factors. We agree with counsel that the offense which precipitated respondent's difficulty under the immigration laws, motivated as it was by respondent's zeal to serve in the defense of this country, is not such a heinous crime as to warrant respondent's banishment. Respondent's deportation would amount to just that unless we take the nunc pro tunc action referred to above. Under the circumstances, we will enter an appropriate order, nunc pro tunc, waiving the grounds of inadmissibility at the time of respondent's last entry on March 2, 1944, which now serve as the basis for the two charges upon which respondent has been found deportable. Such action will serve to terminate the proceedings before us.
Order: It is ordered that the alien's admission on March 2, 1944, at the port of New York, be and the same is hereby authorized, nunc pro tunc, as a returning resident under the provisions of section 211 (b) of the Immigration and Nationality Act of 1952.
It is further ordered that pursuant to the discretion contained in the 7th proviso to section 3 of the Immigration Act of 1917, as amended, the alien be considered as having been lawfully admitted to the United States for permanent residence at the port of New York on March 2, 1944, notwithstanding his inadmissibility at that time as one who admits the commission of the crime of perjury committed in the Southern District of California before Edmund L. Smith, Clerk, United States District Court, when he falsely executed an application for a United States citizen's passport, claiming to be a citizen of the United States, born therein; subject to revocation in the discretion of the Attorney General, after hearing, if the alien subsequently commits any offense.
It is further ordered that the proceedings under the warrant of arrest be and the same are hereby terminated.