E-050442
Decided by the Board January 4, 1954
Permission to return to unrelinquished domicile — Section 212 (c) of the Immigration and Nationality Act — Nunc pro tunc waiver authorized in expulsion proceedings.
The discretion contained in section 212 (c) of the Immigration and Nationality Act may be exercised nunc pro tunc in an expulsion proceeding to waive a ground of inadmissibility under that act thereby removing the ground of deportation and making possible termination of the expulsion proceedings.
CHARGE:
Warrant: Immigration and Nationality Act — Conviction of crime prior to entry — Counterfeiting.
BEFORE THE BOARD
Discussion: This case comes before us on certification of the assistant commissioner for review of an order of the special inquiry officer granting the respondent suspension of deportation under section 244 (a) (5) of the Immigration and Nationality Act.
The respondent is a 68-year-old married male, a native and citizen of Japan, who last entered the United States at Honolulu, T.H. on October 10, 1934 as a passenger on the S.S. President Pierce at which time he was admitted as a returning resident alien. He was originally admitted to the United States at Honolulu on December 12, 1902. On September 11, 1923, he was convicted in the United States District Court for the Territory of Hawaii of counterfeiting United States notes in violation of section 148 of the Penal Code. On the same day he was sentenced to imprisonment for 10 years, but was released from confinement on April 28, 1927, at which time he was paroled until May 28, 1930, when his full term expired. Since counterfeiting is a crime involving moral turpitude, the respondent is deportable on the warrant charge.
The record indicates that the respondent has maintained his domicile in the Territory of Hawaii continuously since his entry in 1902 and that he has never been absent from that Territory except for the period from April 1933 to October 1934 during which time he visited his sick mother in Japan. He has been married for over 45 years to a legally resident alien spouse and has seven children all of whom are United States citizens. His wife, 66 years of age, is suffering from diabetes and is dependent upon him for support. Three of the children live with the respondent and his wife, and two of them are incapacitated due to mental or physical disabilities and are completely dependent upon the respondent and his wife for care and support. The respondent himself is in poor health but is employed as an advertising script writer, earning $300 a month and has personal assets valued at $1,000. He lives rent free in a home provided by his oldest son.
A check of the appropriate local and Federal records reveals no arrest or criminal record other than the 1923 conviction. Inquiry has disclosed that the alien has no connection with any subversive groups. Affidavits of six persons have been presented vouching for the respondent's good moral character. A character investigation report is favorable to him.
The special inquiry officer has found that the respondent's deportation would result in exceptional and extremely unusual hardship to himself, his wife, and two dependent daughters and has granted suspension of deportation under section 244 (a) (5) of the Immigration and Nationality Act. Though we agree that the case contains hardship features, we find no legal basis for granting suspension of deportation.
Section 244 (a) (5) of the Immigration and Nationality Act by its express terms applies to aliens who are deportable under certain specified paragraphs of section 241 (a) of the Immigration and Nationality Act for an act committed, or status acquired after entry. In the instant case the alien's crime was committed prior to his last entry and the ground of his deportability did not arise under any of the paragraphs enumerated in section 244 (a) (5) of the Immigration and Nationality Act. Hence, that section has no application to him. The only other portion of section 244 (a) which might possibly apply to him is section 244 (a) (1) of the Immigration and Nationality Act. However, he is ineligible under that section because he is a member of a class of aliens whose deportation could not have been suspended under section 19 (d) of the Immigration Act of 1917, as amended, by reason of his conviction of counterfeiting prior to entry. We therefore conclude that if any discretionary relief is to be given to the respondent it cannot take the form of suspension of deportation. However, we do find an appropriate form of relief in section 212 (c) of the Immigration and Nationality Act which permits us to waive a ground of inadmissibility in the case of an alien who was legally admitted to the United States for permanent residence and returns to an unrelinquished domicile of 7 years after a temporary absence abroad. We find that the respondent meets the requirements of that section and that by reason of his long residence in Hawaii, his dependent family ties, and his unblemished record since 1923, the case is sufficiently meritorious to grant relief thereunder. We will therefore invoke the discretionary authority contained in section 212 (c) to waive, nunc pro tunc, the respondent's inadmissibility by reason of his conviction of counterfeiting, and to consider him as having been lawfully admitted for permanent residence on the occasion of his last entry. The proceedings will therefore be terminated.
Order: It is ordered that the order of the special inquiry officer be and the same hereby is withdrawn.
It is further ordered that pursuant to the discretion contained in section 212 (c) of the Immigration and Nationality Act, the alien be considered as having been lawfully admitted to the United States for permanent residence at Honolulu, T.H., on October 10, 1934, notwithstanding his inadmissibility at that time as one who was convicted of a crime involving moral turpitude, to wit: Counterfeiting, subject to revocation in the discretion of the Attorney General, after hearing, if the alien subsequently commits any offense.
It is further ordered that the proceedings be terminated.