Opinion · United States Board of Immigration Appeals

IN THE MATTER OF S----, 2 IN Dec. 12 (BIA 1944)

IN THE MATTER OF S----. In DEPORTATION Proceedings., 2 I. & N. Dec. 12 (Board of Immigration AppealsExecutive Office for Immigration ReviewU.S. Department of Justice 1944)

Type: Opinion
Court: United States Board of Immigration Appeals
Jurisdiction: Federal
Date: 1944-01-19
Topic: general

IN THE MATTER OF S----, 2 IN Dec. 12 (BIA 1944) IN THE MATTER OF S----. In DEPORTATION Proceedings. 56168/11Board of Immigration AppealsExecutive Office for Immigration ReviewU.S. Department of Justice Decided by Board January 19, 1944. Nonimmigrant status under Immigration Act of 1924 — Inadmissibility of alien under act of February 5, 1917 — Effect on nonimmigrant status — Visitor — Seaman. An alien, who was actually a nonimmigrant visitor under section 3 (2) of the Immigration Act of 1924, was not excludable as an immigrant without a visa when entering the United States, even if inadmissible then under the act of February 5, 1917.

Citator

UpLaw has not yet analyzed IN THE MATTER OF S----, 2 IN Dec. 12 (BIA 1944). The absence of a flag is not a finding that it is good law.

IN THE MATTER OF S----,2 IN Dec. 12(BIA 1944)

IN THE MATTER OF S----. In DEPORTATION Proceedings.

56168/11

Board of Immigration Appeals

Executive Office for Immigration Review

U.S. Department of Justice

Decided by Board January 19, 1944.

Nonimmigrant status under Immigration Act of 1924 —Inadmissibility of alien under act of February 5, 1917 — Effecton nonimmigrant status — Visitor — Seaman.

An alien, who was actually a nonimmigrant visitor under section 3 (2) of the Immigration Act of 1924, was not excludable as an immigrant without a visa when entering the United States, even if inadmissible then under the act of February 5, 1917. The above principle does not apply to alien seaman (who appears to satisfy the requirements as to nonimmigrant status under the above act of 1924), because of the express provisions of section 1 (c) of the act of March 4, 1929, as amended.

CHARGES:

Warrant: Act of 1924 — Remained longer than permitted; visitor;

Act of 1917 — Admits commission of crime prior to entry, to wit: Uttering worthless checks.

Lodged: Act of 1917 — Admits commission of crime prior to entry, to wit: Obtaining money under false pretenses.

BEFORE THE BOARD

Discussion:After a hearing, the Presiding Inspector found the respondent deportable on the first charge contained in the warrant of arrest and on the charge lodged during the hearing. He recommended her deportation to Canada, in which recommendation the Central Office of the Immigration and Naturalization Service concurs.

The respondent is a 23-year-old native and citizen of Canada, who last entered the United States at Buffalo, N.Y., on June 25, 1943, and was then admitted as a member of the Canadian Women's Army Corps for a temporary period of 48 hours. No immigration documents of any kind were presented by the respondent, nor were they required under the blanket waiver granted by the Department of State, having apparently established her identity to the satisfaction of the examining immigrant inspector and having been in possession of the necessary military pass. (SeeInformationBulletin No. 40of June 3, 1942.) The respondent had every intention, at the time of her admission, of returning to Canada at the expiration of the 48-hour period. She came to Springfield, Mass., to see a friend, who was in the United States Army, stationed in the vicinity of that city. Because shePage 13missed her train, and was afraid to return, she decided, after spending 2 days in this country, to remain here.

Before the respondent came to the United States on her last visit, she issued in Canada about four or five checks which were drawn on a Canadian bank in which she at one time had an account. She admits that she cashed these checks when she knew that she had no funds to cover them. Her voluntary admission of the commission of the crime of obtaining money under false pretenses in violation of section 405 of the Canadian Criminal Code then followed. Section 405 of said Code, in its pertinent portion, provides:

Every one is guilty of an indictable offense and liable to three years' imprisonment who, with intent to defraud, by any false pretence, either directly or through the medium of any contract obtained by such false pretence, obtains anything capable of being stolen, or procures anything capable of being stolen to be delivered to any other person than himself.

* * * * * * *

3. In any prosecution under this section, if it be shown that any thing capable of being stolen was obtained by the accused by means of a cheque which, when presented for payment within a reasonable time, was dishonoured on the ground that there were no funds or not sufficient funds on deposit in the bank to the credit of the accused, it shall be presumed that such thing was obtained with fraudulent intent by a false pretence, unless it be established to the satisfaction of the Court that when the accused issued such cheque he had reasonable grounds for believing that it would be honoured if presented for payment within a reasonable time after it was issued.

This crime clearly involves moral turpitude and the respondent is deportable because of her admission of the commission thereof prior to entry. She did not admit the commission of the crime of uttering worthless checks and the warrant charge based on this alleged admission will not be sustained.

Because of the respondent's deportability on a ground in existence at the time of entry, the question arises as to whether she was then an immigrant or a nonimmigrant. If the facts developed at the deportation hearing had been known at the time of her entry, she would, of course, not have been entitled to admission, either as an immigrant or a nonimmigrant, though the discretion contained in the ninth proviso of section 3 of the act of February 5, 1917, could have been exercised to authorize her admission for a temporary period. Her inadmissibility, however, would have been based not on the Immigration Act of 1924 but on the act of February 5, 1917. These two acts are coexisting laws and the 1924 act was meant to be in addition to and not in substitution for the other immigration laws (sec. 25 of the Immigration Act of 1924). An alien to be entitled to admission must satisfy the requirements of both of these acts as well as the other immigration laws. If admissible under one act, but not under another, he must still bePage 14excluded. The fact that he is inadmissible under the act of February 5, 1917, however, does not in and of itself mean that he thereby becomes excludable under the Immigration Act of 1924 as an immigrant if he is not in possession of an immigration visa. An alien's admissibility or deportability under the latter act is to be determined by the requirements of that act and that act alone.

Section 3 of the Immigration Act of 1924 defines an immigrant as "any alien departing from any place outside the United States destined to the United States, except" certain enumerated classes, one of which is "an alien visiting the United States temporarily as a tourist or temporarily for business or pleasure." The record is clear that this respondent was entering the United States only temporarily as a visitor for pleasure and she was so admitted. She was factually and legally a nonimmigrant visitor under section 3 (2) of the Immigration Act of 1924. She would not have been inadmissible as an immigrant not in possession of an immigration visa even had she admitted the commission of a crime involving moral turpitude prior to her application for admission. She would only have been found excludable under the act of February 5, 1917. Her status at the time of entry was clearly that of a nonimmigrant and the warrant charge based on that status must be sustained.

The deportability, under the Immigration Act of 1924, of an alien seaman, who has been admitted under sections 3 (5) and 15 of said act for a temporary period solely in pursuit of his calling, requires further comment in those cases where the seaman has been previously arrested and deported from the United States.

Under section 1 (a) of the act of March 4, 1929, as amended, aliens previously arrested and deported are excludable unless after the expiration of 1 year they obtain permission from the proper authorities to reapply for admission. An alien seaman within this inadmissible class, who satisfied the nonimmigrant requirements of section 3 (5) of the Immigration Act of 1924 and gained admission by withholding the information regarding his prior deportation, might appear, upon an application of the foregoing principles, to have had a nonimmigrant status at the time of entry and would, therefore, appear not to be deportable under a no visa charge. This, however, is not true in the case of a seaman, and is due to section 1 (c) of the act of March 4, 1929, as amended. This section reads:

An alien subject to exclusion from admission to the United States under this section, who is employed upon a vessel arriving in the United States shall not be entitled to any of the landing privileges allowed by law to seamen.

The landing privileges allowed by law to seamen are those contained in sections 3 (5) and 15 of the Immigration Act of 1924 and the regulations made thereunder. Section 1 (c) of the 1929 act, as amended,Page 15thus, in effect, says that alien seamen, notwithstanding that they may appear to satisfy the requirements of section 3 (5) of the 1924 act, are not entitled to admission under section 15 of said act if they fall within the excluding terms of section 1 of the 1929 act, as amended. Not being admissible under that provision of the Immigration Act of 1924, which deals with nonimmigrants, it would appear to follow that their admissibility under the 1924 act would depend upon their presenting immigration visas. Alien seamen of this class are, therefore, always considered to have the status of immigrants at the time of entry and if they did not present immigration visas at that time, they became subject to deportation on the appropriate visa charge.Findings of Fact:Upon the basis of all the evidence presented, it is found:

(1) That the respondent is an alien, a native and citizen of Canada;

(2) That the respondent last entered the United States at Buffalo, New York, on June 25, 1943, and was then admitted as a visitor for pleasure for a period of 48 hours;

(3) That the respondent then intended to return to Canada at the expiration of the 48-hour-period;

(4) That the respondent has remained in the United States for more than 48 hours;

(5) That the respondent admits the commission of the crime of obtaining money under false pretenses in violation of Section 405 of the Canadian Criminal Code prior to her last entry;

(6) That the respondent does not admit the commission of the crime of uttering worthless checks prior to her last entry.

Conclusions of Law:Upon the basis of the foregoing findings of fact, it is concluded:

(1) That under sections 14 and 15 of the Immigration Act of 1924 the respondent is subject to deportation on the ground that after admission as a visitor she has remained in the United States for a longer time than permitted under said act or regulations made thereunder;

(2) That under section 19 of the act of February 5, 1917, the respondent is subject to deportation on the ground that she admits having committed a felony or other crime or misdemeanor involving moral turpitude, prior to entry into the United States, to wit: Obtaining money under false pretenses in violation of section 405 of the Canadian Criminal Code;

(3) That under section 19 of the act of February 5, 1917, the respondent is not subject to deportation on the ground that she admits having committed a felony or other crime or misdemeanor involving moral turpitude, prior to entry into the United States, to wit: Uttering worthless checks;

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(4) That under section 20 of the act of February 5, 1917, the respondent is deportable to Canada at Government expense.

Other Factors:The respondent was married in June 1938, but separated from her husband 8 months thereafter. She was legally admitted to the United States in December 1941, but resided here only for 3 or 4 months when she returned to Canada. Since her return to Canada she has entered this country for visits on several occasions. While in Springfield, Mass., during her last visit, she issued a worthless check. She has never been arrested for any of these illegal acts.Order:It is ordered that the alien be deported to Canada at Government expense, on the following charges:

That she is in the United States in violation of the Immigration Act of 1924 in that after admission as a visitor she has remained here for a longer time than permitted under said act or regulations made thereunder.

That she is in the United States in violation of the act of February 5, 1917, in that she admits having committed a felony or other crime or misdemeanor involving moral turpitude prior to entry into the United States, to wit: Obtaining money under false pretenses in violation of section 405 of the Canadian Criminal Code.

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