A-4272545.
Decided by Board July 8, 1946. Approved by Attorney General July 15, 1946.
Suspension of deportation — Section 19 (c) (2) Immigration Act of 1917, as amended — Economic detriment — Test.
"Economic detriment," under section 19 (c) (2) of the act of February 5, 1917, as amended, must be measured on the assumption that the alien is to be deported and permanently separated from his family, and cannot be measured in relation to an alternative form of relief, such as voluntary departure and preexamination.
CHARGE:
Warrant: Act of 1924 — Immigrant without immigration visa.
BEFORE THE BOARD
Discussion: This record relates to a 36-year-old native and citizen of Italy who last entered the United States at the port of New York as a stowaway in June 1928. We first considered the case on April 29, 1941, and found the alien subject to deportation on the warrant charge. At that time an order was entered directing the alien's removal to Italy. On August 7, 1945, the outstanding order and warrant of deportation were withdrawn and the case was reopened to adduce additional evidence looking towards the entry of an order granting the alien remedial relief.
The record evidence now shows that respondent is married to an American citizen and has a minor citizen child. The alien owns and operates a mirror manufacturing business, employing about 12 or 13 people. As of the time of the hearing he derived a net annual income from this business, prior to taxes, of about $20,000. The assets of the business amount to about $25,000. In addition to his business assets, respondent has a personal bank account amounting to about $4,300, owns his own home valued at about $6,500, has war bonds whose maturity value is about $7,900 and also personal effects worth about $2,000. The entire family is supported on the alien's earnings.
Respondent personally supervises all the work in connection with his business. He does all the buying, selling, and managing. His is a one-man business which could not operate in his absence.
Despite these facts and contrary to the recommendation of the Presiding Inspector and the District Director, the Commissioner denied respondent's application for suspension of deportation. He recommended that the respondent be permitted to adjust his immigration status by way of voluntary departure and preexamination. In denying suspension of deportation the Commissioner said, "* * *, it is believed that the respondent could entrust his business to a subordinate for sufficient time to depart to a nearby country and secure a reentry permit. In view of the respondent's assets, no serious economic detriment would inure to his wife and child, so suspension of deportation should be denied." As we pointed out in Matter of W---- 7660867, (also being certified to the Attorney General this day), the Commissioner applied an incorrect test in determining the existence of a serious economic detriment. Economic detriment cannot, under section 19 (c) of the act of February 5, 1917, be measured in relation to an alternative form of relief such as voluntary departure and preexamination. It must be measured on the assumption that the alien is to be deported and permanently separated from his family. In connection with the assets theory suggested by the Commissioner also, see our decision in Matter of W----, supra.
If the alien in this case is deported to Italy, he would either have to sell or liquidate his business. Because it is a one-man business, it could not be operated in the alien's absence. The $20,000 annual income derived from the business would no longer be available for the support of the wife and child. While presumably some of the family assets would be retained by the wife, she could not hope to obtain sufficient income from these assets prudently invested, to enable her to support herself and her infant citizen child. That being the economic situation that would exist if the alien were to be deported, the Board feels obliged to conclude, as did the Presiding Inspector and the District Director, that the alien's deportation would result in a serious economic detriment to his American family. Since the alien is eligible for relief by way of suspension of deportation, the Board believes that the record justifies the granting of such relief.
Order: It is ordered that deportation of the alien be suspended under the provisions of section 19 (c) (2) of the Immigration Act of 1917, as amended.
It is further ordered, That if Congress takes no action adverse to the order granting suspension of deportation, and when the required fee is paid, proceedings be canceled.
As the case involves suspension of deportation of an alien pursuant to the provisions of section 19 (c) (2) of the Immigration Act of 1917, as amended, in accordance with the provisions of title 8, section 90.12, Code of Federal Regulations, the Board refers the case to the Attorney General for review of its decision.
The findings of fact, conclusions of law and order of the Board of Immigration Appeals suspending the deportation of the respondent under the provisions of section 19 (c) of the Immigration Act of 1917, as amended, are hereby approved and adopted.