Opinion · United States Board of Immigration Appeals

IN THE MATTER OF A----, 2 IN Dec. 459 (BIA 1947)

2 IN Dec. 459

Type
Opinion
Court
United States Board of Immigration Appeals
Jurisdiction
Federal
Date
1946-02-19
Topic
general

IN THE MATTER OF A----, 2 IN Dec. 459 (BIA 1947) IN THE MATTER OF A----. In DEPORTATION Proceedings. A-2264770.Board of Immigration AppealsExecutive Office for Immigration ReviewU.S. Department of Justice Decided by Board February 19, 1946.Ruling by Attorney General March 12, 1946.Recommendation by Central Office July 31, 1946.Decided by Board September 18, 1946.Ruling by Attorney General March 28, 1947. Seventh Proviso Relief — Section 3 of the Immigration Act of 1917 — Discretion.

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UpLaw has not yet analyzed IN THE MATTER OF A----, 2 IN Dec. 459 (BIA 1947). The absence of a flag is not a finding that it is good law.

IN THE MATTER OF A----,2 IN Dec. 459(BIA 1947)
IN THE MATTER OF A----. In DEPORTATION Proceedings.
A-2264770.
Board of Immigration Appeals
Executive Office for Immigration Review
U.S. Department of Justice
Decided by Board February 19, 1946.
Ruling by Attorney General March 12, 1946.
Recommendation by Central Office July 31, 1946.
Decided by Board September 18, 1946.
Ruling by Attorney General March 28, 1947.
Seventh Proviso Relief — Section 3 of the Immigration Act of1917 — Discretion.

An alien is not barred from the relief of voluntary departure, preexamination, and the advance exercise of discretionary power under the seventh proviso to section 3 of the Immigration Act of 1917, though deportable on a criminal ground bringing him within one of the classes specified in section 19 (d) of the Immigration Act of 1917, as amended, and such relief may be made available to him regardless whether deportable for a crime committed within 5 years after entry or deportable for a crime prior to entry.

CHARGE:

Warrant: Act of 1917 — Sentenced to imprisonment for 1 year or more for crime committed within 5 years after entry; extortion.
BEFORE THE BOARD

(February 19, 1946)
BEFORE THE BOARD

(February 19, 1946)
Discussion:Respondent is a native and citizen of Sweden, 42 years old. He last entered the United States at the port of New York in December 1919 as a member of the naval personnel of HMSFylgia,and deserted. On June 14, 1922, respondent was convicted in New York of extortion committed in March 1922, and sentenced to a term of 5 to 7 years in the State prison. Respondent is subject to deportation under section 19 of the Immigration Act of 1917 because he was sentenced to imprisonment for a term of 1 year or more for a crime involving moral turpitude committed within 5 years after entry.Findings of Fact:Upon the basis of all the evidence presented, it is found:
(1) That the respondent is an alien, native and citizen of Sweden;
(2) That respondent last entered the United States at the port of New York in December 1919;
Page 460
(3) That in June 1922 respondent was convicted in the State of New York of the crime of extortion committed March 22, 1922, and sentenced to the State prison for a term of 5 to 7 years.
Conclusions of Law:Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 19 of the Immigration Act of 1917 respondent is subject to deportation on the ground that after May 1, 1917, he has been sentenced to imprisonment for a term of 1 year or more because of conviction in this country of a crime involving moral turpitude committed within 5 years after entry, namely, extortion;
(2) That under section 20 of the Immigration Act of 1917, the respondent is deportable to Sweden at Government expense.
Discretionary Action:The respondent will be deported and barred from legal residence in the United States unless the discretion conferred by the seventh proviso to section 3 of the Immigration Act of 1917 can be exercised in his favor.

Respondent has a wife and two children who are United States citizens, and his family is dependent on him for their support. His police record consists only of the 1922 extortion conviction and a $25 fine for a minor offense in 1932. A neighborhood investigation and character affidavits show that he is a person of good repute. We do not think his 1922 offense so serious as to require that he now be separated from his American family, unless the law makes deportation mandatory.

The question is whether discretionary action is legally possible. The seventh proviso to section 3 of the Immigration Act of 1917 reads:
Provided further,That aliens returning after a temporary absence to an unrelinquished United States domicile of seven consecutive years may be admitted in the discretion of the Attorney General * * *


The seventh proviso normally operates to waive a ground for exclusion in the case of an alien applying for admission.1But this discretionary power is also used, both in preexamination and deportation proceedings, where the alien is in the United States. The alien is thus enabled to depart and, with the ground for exclusion removed in advance, to reenter legally. It is this form of relief which respondent must obtain in order to become a legal resident. The question is whether it is now legally possible to give respondent voluntary departure,Page 461in view of the Alien Registration Act of 1940, amending section 19 of the Immigration Act of 1917.

Section 19 (c) authorizes the Attorney General to permit a deportable alien who has proved good moral character for the preceding 5 years to depart in lieu of deportation. Section 19 (d) provides "the provisions of subsection (c) shall not be applicable in the case of any alien who is deportable under * * * any of the provisions of so much of subsection (a) of this section as relates to criminals. * * *" Respondent is deportable under a clause in section 19 (a) which "relates to criminals."

We think section 19 (d) does not bar voluntary departure in deportation proceedings where the case calls for the advance exercise of seventh proviso authority. Our ruling was similar inMatter of B----,V-292720, March 27, 1942, approved by the Attorney General August 5, 1942, and our reasoning in that case applies with equal force here.2We reasoned in the B---- case that Congress did not intend to end the well-established administrative practice of employing the seventh proviso in preexamination proceedings, and that a contrary view would result in consequences both capricious and absurd. As we pointed out, Congress was aware of this administrative practice when it enacted the Alien Registration Act of 1940.3We said: "Congress intended the seventh proviso to be used in the future as it had been in the past and * * * Congress still believed that aliens who had been domiciled in the United States for as much as 7 years were entitled to consideration over and above that accorded other aliens." Since the seventh proviso had been employed in deportation proceedings as well as in preexamination,4this conclusion is equally applicable here.

We pointed in the B---- case to certain absurdities which would result from a contrary decision. The same absurdities would appear here if we decided that deportation was mandatory. Moreover, an additional absurdity would result, for in view of the B---- ruling, availability of the seventh proviso would depend on whether the issue arose in preexaminaiton or deportation proceedings. Here again, as we remarked inMatter ofB----,"chance might be the factor determining substantive rights."Page 462

Indeed, inMatter of B----we considered the specific question here involved, and we said:
As we are primarily concerned with substantive rights and disabilities, not with form or procedure, we believe this reasoning equally applicable to cases of aliens who may first come before us as the result of the institution of deportation proceedings and but for section 19 (d) would be entitled to preexamination. Prior to the Alien Registration Act of 1940, the benefits of the seventh proviso were conferred in cases which had their origin in deportation proceedings as well as in those initiated by a request for preexamination. Basically, if in the latter cases approval may be given to voluntary departure notwithstanding deportability on a section 19 (d) ground, consonant action is permissible in the former.


The only remaining distinction between the instant case and the B---- situation is that B---- was deportable for a crime committed prior to entry while the respondent's crime occurred subsequent to entry. It may be urged that Congress intended to deal more harshly with an alien who committed a crime after his admission to this country, and therefore, that the seventh proviso should not be used to enable him to legalize his residence. We think this contention is unsound. By section 19 of the Immigration Act of 1917 an alien is deportable for a crime subsequent to entry only if (1) the crime was committed within 5 years after his entry, and (2) the alien was sentenced to imprisonment for at least 1 year. Crime prior to entry, however, is ground for deportation under the same section (1) irrespective of the duration of the imprisonment, (2) irrespective of the time period between the commission of the crime and the entry, and (3) irrespective of the duration of the alien's residence in the United States.5This hardly suggests that Congress considered an alien who committed a crime subsequent to entry as more culpable and less deserving of discretionary action than an alien who committed a crime prior to entry. And furthermore, since the last entry is controlling in deportation proceedings,6the contention suggested above would deny an advance exercise of seventh proviso power to an alien deportable for a crime subsequent to entry, but permit this discretionary action if an alien was fortunate enough to have made a brief visit abroad subsequent to his crime and had thus become deportable for a crime prior to entry.7Here too, "chance might be the factor determining substantive rights."8We conclude that advance exercise of seventh proviso power is available to an alien deportable for aPage 463crime committed within 5 years after entry as well as to one deportable for a crime prior to entry.9

Respondent has been a person of good moral character for the past 5 years and we believe that he is eligible for voluntary departure, and that preexamination should be authorized. We believe the question here presented is of such importance that our decision should be certified to the Attorney General for review.Order:It is directed that an order of deportation be not entered at this time but that the alien be required to depart from the United States, without expense to the Government, to any country of his choice, within 6 months after notification of decision, conditioned upon arrangements being made with the local immigration office for verification of departure.It is further ordered,That preexamination be authorized.It is further ordered,That if the alien applies for admission to the United States he be admitted under the seventh proviso to section 3 of the Immigration Act of 1917, solely with respect to the ground of exclusion arising from his conviction of the crime of extortion in New York on June 14, 1922, subject to revocation in the discretion of the Attorney General, after hearing, if the alien hereafter commits any crime.

As a question of difficulty is involved, pursuant to the provisions of section 90.12, title 8, Code of Federal Regulations, the Board refers its decision and order to the Attorney General for review.
BEFORE THE ATTORNEY GENERAL

(March 12, 1946)
The Attorney General has concluded that, although he has the power to readmit the alien by use of the seventh proviso, the facts of the case are such as to make it inappropriate for him to do so.Page 464
BEFORE THE CENTRAL OFFICE

(July 31, 1946)
Discussion:The respondent is a native and citizen of Sweden, 42 years old. He last entered the United States at the port of New York in December 1919 as a member of the naval personnel of HMSFylgia,and deserted. On June 14, 1922, the respondent was convicted in New York of extortion committed in March 1922, and sentenced to a term of 5 to 7 years in the State prison. Respondent is subject to deportation under section 19 of the Immigration Act of 1917 because he was sentenced to imprisonment for a term of 1 year or more for a crime involving moral turpitude committed within 5 years after entry.

On March 12, 1946, the Attorney General advised that he was not disposed to authorize the readmission of the alien under the seventh proviso to section 3 of the act of February 5, 1917, and on April 15, 1946, the Board of Immigration Appeals proposed an order that the alien be deported to Sweden at Government expense on the charge stated in the warrant of arrest. On May 8, 1946, the order proposed by the Board of Immigration Appeals was served by registered mail upon the alien's representative. He was granted an extension from May 14, 1946, to May 24, 1946, within which to file exceptions and on May 23, 1946, he stated that he had decided to present oral argument before the said Board.

In view of the facts set forth above, the deportation of the alien should be ordered.Recommendation:It is recommended that the alien be deported to Sweden at Government expense on the charge stated in the warrant of arrest.

In accordance with 8 C.F.R. 90.3, this case is referred to the Board of Immigration Appeals.
BEFORE THE BOARD

(September 18, 1946)
Discussion:Respondent is a native and citizen of Sweden, 42 years old. He has resided in the United States since December 1919. On February 19, 1946 we found him subject to deportation on the charge stated above. We proposed to give the alien voluntary departure, preexamination and the advance exercise of the seventh proviso to waive the ground of exclusion arising from his conviction in 1922. On March 12, 1946 we were informed that the Attorney General, although possessing the power to readmit the alien by use of the seventh proviso, declined to exercise that power in this case. Accordingly, on April 15, 1946 we issued a less favorable order, proposingPage 465that the alien be deported to Sweden. Counsel for the alien at the oral argument asks that the alien be given an opportunity to apply for a pardon. A pardon would remove the ground for deportation. In view of the alien's citizen wife and children, his long residence, and his good record since the extortion conviction, we shall grant counsel's request.Order:It is ordered that the alien be deported to Sweden at Government expense on the charge stated in the warrant of arrest.It is further ordered,That execution of the warrant of deportation be deferred for 30 days to permit the alien to apply for a pardon, and if an application for a pardon is made within this period, that execution of the warrant of deportation be deferred for 6 months in order to determine the outcome of the pardon application.
BEFORE THE ATTORNEY GENERAL

(March 28, 1947)
On further consideration, I am convinced that the decision and order of the Board of Immigration Appeals of February 19, 1946 represents the correct action in this case. Therefore, the order of September 18, 1946 is hereby set aside, and the order of the Board dated February 19, 1946 is approved and adopted.Page 466
  1. If respondent were now outside the United States, he would be inadmissible because of the 1922 conviction. But this ground for exclusion could be waived under the seventh proviso, for he would be returning to a domicile of more than 7 years, and the domicile need not originate in a legal entry (Matterof H----, 56038/883, Jan. 2, 1942, approved by Attorney General). ↩
  2. The only difference between the two cases is that B----'s arose in preexamination proceedings. But B---- was deportable under a clause in section 19 (a) which "relates to criminals." (See1 IN Dec. 204.) ↩
  3. We cited hearings before the Sub — Committee of the Committee on Appropriations, House of Representatives, 76th Cong., 3d sess., pt. 1, pp. 212-228. See also House Committee Hearings on Department of Labor Appropriation Bill for 1940, p. 170; File No. 55819/402, letters from Commissioner General Houghteling to Senator Reynolds, dated December 22, 1937, February 28, 1938, and April 20, 1938. ↩
  4. See note 3. ↩
  5. InUnited States ex rel. Volpev.Smith,289 U.S. 422(1933), the alien had resided in the United States for 19 years prior to his conviction. ↩
  6. Blumenv.Haff,78 F. (2d) 833,836(C.C.A. 9th, 1935), cert. den.296 U.S. 644(1935). ↩
  7. Cf.United States ex rel. Volpev.Smith, supra,note 5. ↩
  8. Matter of B----, supra. ↩
  9. Recently a subcommitee of the House Committee on Immigration and Naturalization has commented on the hardship imposed by section 19 (d) in denying relief to long-resident aliens. Interim Report, Select Committee to Investigate and Study Laws and Problems Relating to Postwar Immigration and Naturalization, H. Rept. No. 1312, 79th Cong., 1st sess., pp. 3, 4. The subcommittee recommended that section 19 (d) be amended to provide for suspension of deportation in cases of exceptional hardship. The seventh proviso and suspension of deportation are forms of relief which are not coextensive in scope. In all probability, if Congress amended section 19 (d) by a provision similar to that suggested by the subcommittee, cases would still arise where the alien was eligible for seventh proviso relief but not for suspension of deportation. And until Congress so amends the law, the seventh proviso is the only form of relief available to the alien in the instant case, and to occasional other highly deserving cases of a similar nature. ↩