A-6330926
Decided by the Board August 13, 1953
Suspension of deportation — Section 244 (a) of the Immigration and Nationality Act — Exceptional and extremely unusual hardship.
The deportation of a native and citizen of the Philippines, who last entered the United States as a visitor in 1945, but who has been in the United States for 16 of the past 23 years, would result in "exceptional and extremely unusual hardship" to him and to the four United States citizens dependent upon him for support due to their hazardous financial situation, the length of the trip he would be required to make in order to obtain a visa, and the fact that the respondent has spent nearly half his life in the United States.
CHARGE:
Warrant: Act of 1924 — No immigration visa.
BEFORE THE BOARD
Discussion as to Deportability: Respondent is 41 years old, married, male, a native and citizen of the Philippine Islands, who last arrived in the United States at San Francisco, Calif., on May 15, 1945. His record shows that at that time he was admitted as a visitor for a period of 1 year, although he states he was not aware that such was the case, and believed that he was being admitted for permanent residence and to resume his domicile with his wife. His entry has been verified, and the record shows that he was denied an extension by the Immigration and Naturalization Service on August 13, 1945. He 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) of the Immigration and Nationality Act of 1952.
The law requires that the alien fulfill certain requirements before he becomes eligible for suspension of deportation under that section. The six requirements of section 244 (a) (1) and the manner in which respondent has met those requirements are set forth 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. Respondent applied for suspension under this provision of the act.
(2) The alien must have last entered the United States more than 2 years prior to the passage of the act. Respondent in this case last entered the United States on May 15, 1945.
(3) The respondent is deportable under any law of the United States but must not be a member of a class whose deportation could not have been suspended by reason of section 19 (d) of the Immigration Act of 1917, as amended. The respondent in the present case is not now and never has been a person whose suspension was forbidden under that act as a member of or associated with a proscribed organization, or as a criminal, prostitute, procurer or other immoral person, or mentally or physically deficient at time of entry, or any of the other classes of persons described in that section.
(4) The alien must have been physically present in the United States for 7 years before his application for suspension of deportation is made. This respondent complies with this provision of the law.
(5) The alien must demonstrate that he has been a person of good moral character during the 7 years immediately preceding the date of the filing of his application. Respondent's good moral character has been conceded. He has had no arrests or criminal record, except minor traffic violations in connection with his operating a taxicab. The record shows that during the Japanese occupation of the Philippines respondent and his wife did all they could to assist the American forces in that area. There is evidence that they suffered considerable hardship during that period.
(6) The alien must demonstrate that his deportation would result in "exceptional and extremely unusual hardship" either to himself, or to a spouse, parent or child who is a citizen or a lawfully resident alien. In considering what is "exceptional and extremely unusual hardship" we will consider, among others, the existence of the following elements:
( a) Length of residence in the United States. Altogether respondent has lived 16 of the past 23 years in the United States. He first entered the United States on December 14, 1929, at a time when he was destined to attend Notre Dame University, South Bend, Ind. He stated at his hearing that he believed he was admitted at that time as a student, but exhibit 4 of the record indicates that he was admitted at that time for permanent residence. He attended the University of Notre Dame for about a year. He remained in the United States until 1935, during which time he married, and his eldest child was born. He returned to the Philippine Islands in 1935 for the purpose of visiting his parents and remained there until 1937. Exhibit 5 shows that he was readmitted to the United States on November 17, 1937, as a temporary visitor under section 3 (2) of the Immigration Act of 1924 for 6 months. He remained in the United States on this trip until December 1940, when he took his wife and children and went to the Philippine Islands again for the purpose of visiting his parents. They were unable to return to the United States because of the war, and they remained abroad until their entry on May 15, 1945.
( b) Family ties. Respondent's wife is a native-born citizen of the United States. They have three children, the eldest and youngest of which were born in the United States, and the second was born at Manila, the Philippine Islands. The eldest child is employed, but lives at home. His wife's mother also lives with them and is dependent upon him.
( c) Possibility of obtaining visa abroad. Respondent is a nonquota immigrant under the Immigration and Nationality Act and should be able to adjust his immigration status if granted the privilege of voluntary departure.
( d) The financial burden on the alien of having to go abroad would be substantial. He owns his own taxicab and has a small amount of money in other assets. He testified that he earns about $3,500 a year. In the past 8 years he has worked as a clerk at the Philippine Embassy for $2,400 a year and as a clerk in the United States Marine Corps (civilian employee) for $3,500 a year. His father's extensive properties in the Philippine Islands were destroyed or lost to the family during the past war. He testifies that his wife's mother is also dependent upon him. The family is self-sustaining at this time, but if deported or required to go abroad to obtain a visa respondent's assets would be seriously depleted. There would be no one else to support his family in his absence.
( e) Neither the age nor the health of this alien would prevent him from going abroad to obtain a visa.
It is our opinion that deportation of this alien would result in "exceptional and extremely unusual hardship" to him and also to the four United States citizens dependent upon him for their support, due to their hazardous financial situation, the length of the trip he would be required to make in order to obtain a visa and due to the fact that respondent has spent nearly half his life in the United States. It is our opinion that respondent is a person who should be granted suspension of deportation under section 244 (a) (1) of the Immigration and Nationality Act of 1952.
Order: It is ordered that the order entered by the special inquiry officer on April 21, 1953, granting respondent suspension of deportation be and it hereby is affirmed.