E-078223
Decided by the Board December 29, 1953
Suspension of deportation — Section 244 (a) of the Immigration and Nationality Act — Exceptional and extremely unusual hardship.
The deportation of a 33-year-old native and citizen of the British Virgin Islands who last entered the United States in 1944 would result in "exceptional and extremely unusual hardship" to her, her legally resident husband, and her five United States citizen children within the meaning of section 244 (a) of the Immigration and Nationality Act in view of the husband's meager earnings, their lack of financial assets, the fact that her husband could not support his family in the British Virgin Islands because of employment conditions there, and the fact that her infant children would be without care if she were deported.
CHARGE:
Warrant: Immigration and Nationality Act — No immigration visa (1924 Act).
BEFORE THE BOARD
Discussion: The special inquiry officer entered an order on September 3, 1953, granting respondent suspension of deportation in accordance with the provisions of section 244 (a) (1) of the Immigration and Nationality Act. This case is before us now on certification of the Acting Assistant Commissioner for final decision pursuant to the authority contained in 8 C.F.R. 6.1 (c).
Discussion as to Deportability: The respondent, a 33-year-old married female, a native of the British Virgin Islands and a subject of Great Britain, last entered the United States at the port of Charlotte Amalie, St. Thomas, Virgin Islands of the United States, on June 8, 1944, and was admitted as a temporary visitor for a period of 29 days. That entry has been verified. At the time of entry she intended to reside permanently but was not in possession of an immigration visa. It is concluded from the evidence of record that she is subject to deportation on the charge contained in the warrant of arrest.
Discussion as to Eligibility for Suspension of Deportation:
Respondent's husband, to whom she was married on May 20, 1953, is a native of the British Virgin Islands and a subject of Great Britain and has been lawfully admitted for permanent residence to the Virgin Islands of the United States. Their five children are citizens of the United States through birth in the Virgin Islands of the United States. The youngest child was born in November 1952 and the oldest in January 1947. Respondent is not employed. Her husband works as a laborer on a housing project and earns approximately $24 a week. They have no assets. Respondent testified that her deportation would cause a hardship on her family since the members of the family would not have anyone to take care of them. She further testified that her husband would not accompany her to the British Virgin Islands as he could not support her and their children if he were in the British Virgin Islands because of the poor employment conditions there. The special inquiry officer comments that it is a known fact that the wages in the British Virgin Islands are much lower than the prevailing wages in the Virgin Islands of the United States and that employment opportunities are very poor in the British Virgin Islands. If the respondent is required to leave the Virgin Islands of the United States, serious hardship, both economic and mental, would be suffered by her, her legally resident alien husband, and their five citizen children. It is concluded from the evidence of record that respondent's deportation would result in exceptional and extremely unusual hardship to her, to her spouse, and their five citizen children.
The evidence of record establishes that respondent had been physically present in the United States continuously for 7 years and more prior to the date of the application for suspension of deportation. She is not a member of a class of aliens whose deportation could not have been suspended by reason of section 19 (d) of the Immigration Act of 1917, as amended.
The quota for the British Virgin Islands is not preempted. Respondent's family, however, has no funds and she would have to leave her infant children in the United States, probably without care, if she were required to leave the Virgin Islands of the United States to obtain an immigrant visa.
A check of appropriate local and Federal records has failed to reveal an arrest or criminal record. Inquiry has disclosed that respondent has no connection with subversive groups. The special inquiry officer states that although respondent lived with her husband some 8 or 9 years prior to their marriage, "the customs and mores in that locality are to be considered, thus not precluding a finding of good moral character." Neither respondent nor her husband was married before their marriage to each other. Respondent has submitted affidavits from two persons attesting to her good moral character. The independent character investigation is favorable with the exception that it notes that respondent lived with her husband out of wedlock before their marriage. It is concluded from the evidence of record that respondent has been a person of good moral character for the preceding 7 years and more. On the record, she has established eligibility for suspension of deportation.
Considering respondent's legally resident alien husband and their five infant United States citizen children and the factors relating to the exceptional and extremely unusual hardship to respondent and her family if she were deported, and in view of the affidavits regarding her good moral character and the fact that she has no criminal record, we believe that suspension of deportation is warranted.
Order: It is 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 the Congress takes no action adverse to the order granting suspension of deportation, the proceedings be cancelled, and the alien, if a quota immigrant at the time of entry not then charged to the appropriate quota, be so charged as provided by law.
It is further ordered that in the event Congress takes action adverse to the order granting suspension of deportation, the alien shall be granted the privilege of voluntary departure at her own expense in lieu of deportation, and if the alien, after notification, fails to depart when and as required, the privilege of voluntary departure be withdrawn without further notice or proceedings, and the alien shall be deported from the United States in the manner provided by law on the charge stated in the warrant of arrest.