A-3533233.(VP-399142)
Decided by Central Office, November 12, 1948 Decided by Board of Immigration Appeals, November 26, 1948 Decided by Attorney General, December 13, 1948
Status — Immigrant or nonimmigrant — Section 3, Immigration Act of 1924 — Evidence.
An alien who resided here from 1926 to 1940, then resided abroad; who made an application for a visa before coming here in 1948, and whose American citizen wife petitioned for an immigration visa on his behalf when his application for an immigration visa abroad was not granted; whose citizen wife and children returned to reside here in September 1946; and whose plans in regard to future residence are uncertain but who indicated he hopes to effect his admission here as an immigrant, may be concluded to have failed to establish that he is in fact a bona fide nonimmigrant in connection with his application for admission in 1948 under the status of a visitor, under the circumstances indicated in this case.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — No immigration visa.
BEFORE THE CENTRAL OFFICE
Discussion: Appellant, a 44-year-old married male, native and citizen of Germany, claims he desires to enter this country to make a survey as a representative of the German veneer industry and his own business for the purchase of timber products. He disclosed that he was admitted to the United States for permanent residence in November 1926, and shortly thereafter was appointed honorary German Consul, serving in that capacity until he last departed from the United States on October 30, 1940. In the meantime, he made business trips to Germany in 1927, 1929, 1930, 1934, 1936 with his family, and in 1938 and 1939 alone, each time traveling on German diplomatic visas as German Consul for the State of Alabama. When he last left this country, his American-born son accompanied him to Germany, and his United States citizen wife and two American-born daughters joined him later. His intentions with regard to his future residence were then indefinite. He stated that his business in this country had dwindled to almost nothing because of the war in Europe; that he had considerable financial assets in Germany with which to support his family; and that there was the possibility of the United States entering the war and his being interned in this country for 5 or 6 years.
Appellant testified that his wife and children returned to the United States on September 23, 1946, when they entered as United States citizens. After their return, appellant filed an application with the Consulate General in Hamburg, Germany, in September 1946, for a non-quota immigration visa as a husband of an American wife and the father of American children. He added that more than a year later the Consulate told him his wife should file papers in this country; that he so advised his wife, who did make such an application on his behalf. He further stated that at the time he last departed from Germany, he was aware that his wife had filed a petition for an immigration visa on his behalf. With regard to his present plans as to residence, he explained that while he is in this country temporarily exploring the possibilities of opening an import and export business for timber products in conjunction with his business in Germany, he is uncertain where he will live in the United States, perhaps in New Orleans, San Francisco, or New York.
Appellant's testimony discloses he was permanently residing in the United States from 1926 to 1940. He made application for an immigration visa abroad prior to his last entry, and after the American Consulate there declined to act on his application, his American citizen wife, who had returned to the United States in the meantime for permanent residence, filed a petition for the issuance of an immigration visa to him. Appellant stated that his plans with regard to his future residence are uncertain, but his testimony indicates he hopes to effect his admission as an immigrant. It is, therefore, concluded that he has failed to establish he is in fact a bona fide nonimmigrant at this time, and that he was properly excluded on the ground above designated.
Recommendation: It is recommended that the excluding decision of the Board of Special Inquiry be affirmed.
So ordered.
Discussion: This is an appeal from a decision of the Assistant Commissioner ordering appellant excluded from the United States. On October 31, 1948, appellant applied for admission at Mobile, Ala., as a temporary visitor (for business) for a period of 60 days. After a hearing before a Board of Special Inquiry on November 1, 1948, he was excluded on the ground that he had failed to establish that he is in fact a bona fide nonimmigrant at this time.
Appellant is a native and citizen of Germany, married to an American citizen with three American-born citizen children. He was legally admitted to the United States for permanent residence in 1926, married, resided, and conducted part of his business here. He served as honorary German Consul in Mobile during most of his period of residence there, an appointment without compensation. He made frequent business trips to Germany, traveling on German diplomatic visas. In October 1940, he returned to Germany, taking his son with him, and his wife and two daughters later joined him there.
Appellant's wife and children returned to the United States in September, 1946, entering as United States citizens. In 1946 appellant filed an application with the American Consulate General in Hamburg for a nonquota immigration visa as a husband of an American citizen. A year later the consulate informed him that such an application should be filed by the wife in this country. Appellant's wife did make such an application on appellant's behalf, at appellant's instruction and with his knowledge.
Appellant is now in possession of a visitor's visa issued by the American Consul in Hamburg. He testified that it was his desire to enter this country "as a representative of the German veneer industry to make a market survey for the purchase of American log and timber products, as well as for the sale of veneer and plywood manufactured in Germany." In addition to making this study he brought with him for sale in this country $1,600 worth of veneers belonging to himself, and is seeking sources of supply for his own business, having obtained a permit to import into Germany $90,000 worth of American timber and logs (of a total allotment of $530,000 for the third quarter of 1948). These shipments have already commenced. In oral argument before this Board, appellant described business interests in addition to the export and import of timber, activities having to do with the exportation to and sale of scrap metal and peat moss in this country. While these proceedings have been pending before this Board a number of telegrams have been received from individuals and corporations indicating that they are doing business with appellant or hope to do business with him, that they are desirous of completing negotiations with him before he is required to return to Germany. So much for appellant's activities in the United States at the present time.
There have been received by this Board other communications from individuals and from patriotic and civic organizations requesting that appellant be denied admission to the United States because of his affiliations with the Nazi Party and members of that party in Germany, because of utterances he is said to have made in this country and in Germany before and during the war, because he served in the German Army and because he furnished supplies in the course of his business. Counsel for an American Legion post in Mobile was heard in oral argument before this Board. It was his request as well as that of the post which he represented that appellant be denied admission, or in lieu of denial that the hearing be reopened in order that evidence as to these accusations may be included in the record.
During the hearing before the Board of Special Inquiry, appellant placed in evidence a certificate issued at Hamburg on August 26, 1948, by the Secretariat of the State Commissioner for Denazification and Categorizing, stating, among other things, that appellant had joined the NSDAP in 1936, that he was not to be tried for being a member of that party, and that no objections were to be made to his trip to America. He presented a temporary travel document issued on September 7, 1948, by the Regional Office, Entry and Exit Branch, valid until March 7, 1950, for travel to the United States and countries of transit. For 2 1/2 years appellant has worked as a supply agent for the British Civilian Control for Germany. He is said to have met their screening requirements for denazification, which requirements in 1945 and 1946 were severe. He has been granted this temporary visitor's visa by the American Consul in Hamburg. The Joint Export — Import Agency granted him $850 (of his own money) for traveling expenses for 1 month. He testified that the market study he is to make was recommended by the American Consulate General in Hamburg to the chief of the Import Section of the Joint Export — Import Agency in Frankfort and the Association of Veneer Manufactures.
Thus, a number of collateral issues have been raised in the two oral arguments before this Board, issues difficult of decision, issues the determination of which is not within our jurisdiction, and issues which are not properly before us at this time. The only question now before this Board is this: Is appellant seeking admission to the United States at the present time as a visitor for business (a nonimmigrant) or is he seeking admission for permanent residence (an immigrant)? If he has established a nonimmigrant status, we are required to direct his admission. It is not discretionary with us to admit or exclude. Matter collateral to the issue of appellant's status as a visitor may not be relied upon as a basis for exclusion. There is no question but that appellant hopes at some future time to be admitted to the United States for permanent residence. He has said so unequivocally many times in the course of these proceedings. He and his wife have both applied for the documents necessary to such an admission. There is, in the opinion of this Board, no question but that appellant intends to return to Germany at the expiration of the period for which he seeks admission. There is no evidence in the record before us to the contrary.
As indicated already herein, there has been some public interest in this proceeding on the part of persons and organizations interested in the admission or exclusion of appellant. It must be observed that most of the opposition to the granting of admission was based on the assumption that appellant was now entering the United States for permanent residence or would attempt to stay permanently and even that the matter of granting American citizenship is involved. With regard to the request of the American Legion's counsel that we reopen this hearing, none of the statements in these communications and none of the offers of evidence prove that appellant has the present intention to remain permanently. Whatever significance these statements may have as to the broader aspects of this case, they are not persuasive on the limited issue in the present proceeding. On the other hand, while the telegrams from the persons doing business with appellant do not prove that he has no intention to remain, they do indicate that he has legitimate business here. There is, therefore, no reason for ordering a reopening of the hearing.
We have already decided the basic premise underlying the differing viewpoints of these two groups when we concluded that appellant is an applicant for temporary admission. Appellant has not been found by the Board of Special Inquiry or the Assistant Commissioner to be excludable on any ground other than a failure to prove his status as a visitor.
If appellant remains in the United States longer than the time for which he was admitted he is deemed to have abandoned his status and he then becomes deportable.
As for the messages which have raised the issue of granting appellant citizenship, it is clearly a question not involved. As a nonimmigrant he is not eligible to proceed toward naturalization (8 U.S.C. 729); furthermore, whether or not an alien may be granted American citizenship is a matter for decision by the courts.
The decision we have reached is required by judicial precedent as well as by past decisions of the Board. Appellant has purchased return transportation. The court in United States v. Reimer, 10 F. Supp. 992 (S.D.N.Y., 1935) found that this is evidence tending to show a bona fide intention on the part of a visitor to leave when his period of temporary admission has expired.
The mere fact that he has a family in this country is not evidence that he should be denied admission as a visitor. In Matter of S---- 6205757 (Aug. 9, 1946) appellant was a 19-year-old female, half Mexican, half Japanese, married to an American citizen soldier stationed in North Carolina. She applied for admission to the United States as a temporary visitor for a period of 29 days. The Board of Special Inquiry excluded her but this Board decided that there was no indication in the record that she would fail to maintain the status of a visitor if admitted and ordered her admitted for not more than 29 days.
In United States v. Reimer, 10 F. Supp. 992 (S.D.N.Y. 1940), a 19-year-old boy sought to enter the United States from British West Indies as a visitor, intending to go to school and live with his mother who resided in New York. There was also a younger son still living in British West Indies and the mother said she was trying to get a permit to send for him. She frankly admitted that she hoped to be able to have her son remain here, but that if he could come only for a visit she would like to have him stay for a year. He was in possession of a return-trip passage. The Board of Special Inquiry held (a two to one decision) that he was not a bona fide visitor. The court found that the alien was actually here on a visit, that he "hoped to find out how he and his brother might both enter the country legally, and then return and fetch him here." The alien was permitted to enter the United States for 6 months under a bond of $500.
An important case on this subject is Chryssikos v. Commissioner of Immigration, 3 F. (2d) 372 (C.C.A. 2d, 1924). The alien was a woman who was married in Naples a month before her arrival at Ellis Island. Her husband was a legally admitted alien residing in the United States who went abroad specifically to marry her and bring her back with him for a "visit." The Board of Special Inquiry denied admission, finding that she was actually an immigrant. She testified before that Board that she would like to stay with her husband, but that she intended to return to Greece and then come back here again. The court said:
It is, of course, well established that if the Board had before it some evidence upon which it could base the decision it reached and its action has not been arbitrary and unfair, the courts cannot go into the merits and set the Board's action aside because in the court's opinion the Board misjudged the evidence. Lewis v. Frick. 233 U.S. 291, 300, 34 S. Ct. 488, 58 L. Ed. 967; Low Wah Suey v. Backus, 225 U.S. 460, 468, 32 S. Ct. 734, 56 L. Ed. 1165.
But the court went on to say:
We have carefully read the testimony given before the Board of Special Inquiry in order that we might be informed whether there was any evidence before the Board which justified the exclusion order. We have failed to find any such evidence.
Most important and often quoted, the court said, " But there is a great difference between wanting to stay and intending to stay. And proof of a desire to stay is not proof of an intent to stay." [Italics supplied.]
In U.S. ex rel. Rizzo v. Curran, 13 F. (2d) 233 (S.D.N.Y., 1925), the court held that there was no evidence to justify exclusion. The alien, a native and subject of Italy, had been admitted to a technical school in this country on condition that he showed himself able to carry the work in English. Because of this condition upon his acceptance, the American consul a Palermo refused him a student's visa, but granted him a temporary visitor's visa. The alien intended, and the consul understood that he intended, to improve his understanding of the English language after he got here, to be admitted unconditionally to the school and then to have his status adjusted to that of a student rather than a visitor. He testified that he would remain if the authorities would permit him to do so.
The Board of Special Inquiry found, and the Assistant Secretary of Labor affirmed the finding, that such an intent defeated his status as a temporary visitor. The court said his hope as to the future could not "take away his present status as a temporary visitor, if he honestly seeks admission on that ground." The court went on:
This is not a case in which honesty of purpose can be questioned. Not a single circumstance was disclosed which raises doubt or suspicion as to the good faith of the relator * * * (citing cases) * * * His exclusion was unjustified as a matter of law, because the statute gives him a present right to enter as a temporary visitor, and does not authorize the immigration authorities to exclude temporary visitors simply because they intend to learn our language and qualify themselves for admission to our colleges and universities. Whether this alien should be ultimately permitted to remain and pursue his studies in Stevens Institute is a question which does not arise at this time. It is sufficient that he is now entitled to enter as a temporary visitor. * * *
The court relied upon the Chryssikos case (cited and discussed above) and said, "Following the practice indicated in that decision the writ (of habeas corpus) will be sustained, and the relator discharged, on giving a bond of $500 * * *"
In United States v. Day, 35 F. (2d) 284 (C.C.A. 3d, 1929), the court again relied on the Chryssikos case and found that a Board of Special Inquiry was not justified by the evidence in holding an alien to be an immigrant rather than a temporary visitor. The alien was a native and citizen of Italy in possession of a nonimmigrant visa. The court said (1) that in reviewing the acts of immigration officials upon writs of habeas corpus courts are not to review the weight of evidence or resolve conflicting testimony, citing United States v. Tod (C.C.A. 2d) 296 F. 345, 347, and (2) that admittedly the burden of proof is upon the alien to establish proof that he is not subject to exclusion under any of the provisions of the immigration law, section 23 of the act of 1924 ( 43 Stat. 165, 8 U.S.C.A. 221) but that (3) the real question before the court was "whether or not there was any evidence before the Board to sustain its conclusions." The Court found:
The possession of a return ticket surely indicated an intention to return to Italy. If he had intended to remain here, he would not have purchased a return ticket, unless he had planned from the beginning a scheme to enter the country contrary to law, and there is no evidence of this. Such assumption rests upon mere suspicion and is not justified by the evidence.
* * * * * * *
An inference, based on a misstatement, that he did not intend to return to his native country in accordance with the terms of his nonquota immigration visa and his return ticket, is mere assumption and not evidence. The testimony that the alien intends to return stands uncontradicted and the contrary conclusion ignores the evidence and magnifies suspicion and inference and has no real evidence to support it.
These cases control our decision and clearly the law is all in appellant's favor on the issue involved in this particular proceeding. While we find appellant is admissible as a nonimmigrant visitor, we will exact the usual departure bond in the sum of $500 to insure his departure at the expiration of his allotted time.
Order: It is ordered that the appeal be sustained and that the alien be admitted as a nonimmigrant visitor for business for a period of 60 days from date of notification of this decision, conditioned upon the filing of a $500 departure bond.
In accordance with the provisions of title 8, Code of Federal Regulations, section 90.12, this case is certified to the Attorney General for review of the Board's decision.
It is ordered that the decision of the Board of Immigration Appeals of November 26, 1948, authorizing the admission of the alien for 60 days under a $500 departure bond be reversed, and the order of the Assistant Commissioner of November 12, 1948, be reinstated and affirmed.