A-5556791.
Decided by Board September 1, 1955.
Recommendation against deportation — Creates immunization from consequences of conviction in deportation proceedings and exclusion proceedings — Preexamination.
The recommendation against deportation made in connection with the respondent's conviction of violation of narcotic law in 1947 created a status of nondeportability on grounds arising out of the narcotic violation which continued even after the Immigration and Nationality Act became effective. This immunization from the consequences of his conviction in deportation proceedings also applies to exclusion proceedings based on the same conviction. Therefore, the respondent is admissible to the United States and may be granted preexamination.
CHARGE:
Warrant: Act of 1924 — Remained longer — Visitor.
BEFORE THE BOARD
Discussion: This is an appeal from the order of a special inquiry officer finding respondent deportable on the ground stated above. The special inquiry officer granted voluntary departure but denied the grant of preexamination on the ground that the alien is inadmissible to the United States. Preexamination will be granted. The special inquiry officer based his findings of inadmissibility on section 212 (a) (23) of the Immigration and Nationality Act making inadmissible aliens convicted of violation of narcotic laws. This alien was convicted of a violation of a narcotic law on May 22, 1947. He received a suspended sentence and was placed on probation for a period of six months and the recommendation was made that he be not deported because of the said violation.
The recommendation against deportation created a status of nondeportability on grounds arising out of the narcotic violation which was continued even after the Immigration and Nationality Act of 1952 ( Matter of W---- M----, A-4988228, Int. Dec. No. 694; Matter of H----, A-4118292, Int. Dec. No. 600).
It is clear then that the alien is not deportable by reason of the narcotic conviction as long as he remains in the United States. We see no reason why the recommendation against deportation which immunized the alien from the consequences of his conviction in deportation proceedings should not serve likewise in exclusion proceedings based upon the same conviction. The situation is analogous to that of an alien who received a recommendation against deportation in a criminal case. The recommendation gave him immunity from deportation on the criminal ground and this immunity attached if he left the United States and sought to reenter although there was no express authorization for a recommendation against deportation in exclusion proceedings and although an alien was made inadmissible by reason of conviction of the same crime prior to entry ( Matter of H---- and Y----, A-4799866 and A-6846155, 3 IN Dec. 236; see Matter of H----, A-4118292, Int. Dec. No. 600). We, therefore, hold that the respondent is admissible to the United States although he has been convicted of a narcotic violation.
The special inquiry officer found that the case was one deserving of discretionary relief. After review we concur in this. The respondent has been notified that a visa will be issued to him if he appears in Canada and has an invitation from the consul to appear in Canada and apply for his visa. He is nonquota. It appears a visa can be readily issued. Preexamination will, therefore, be granted.
Since we find the alien eligible for preexamination, we need not discuss the effect of the Presidential pardon he secured in 1954 for the offense.
Order: It is ordered that the order of the special inquiry officer of April 5, 1955, be and the same is hereby amended by the addition of the following:
It is further ordered that preexamination be authorized conditioned upon a showing that the alien can obtain the prompt issuance of an immigrant visa.