A-10840831
Decided by Board November 21, 1957
Suspension of deportation — Section 244 (a) (1) of Immigration and Nationality Act — Uniform application of standards in determining eligibility for discretionary relief — Voluntary revelation of unlawful immigration status.
(1) Standards have been adopted as a guide in administering the statutory provisions for discretionary relief to assure like treatment for persons in like circumstances (See Matter of S----, A-5388920, 5 IN Dec. 409). These standards are to be applied uniformly so as to express the intention of Congress that suspension of deportation is to be limited to those cases in which deportation would be unconscionable.
(2) Denial of suspension of deportation by the special inquiry officer was not arbitrary in the case of a 39-year-old alien who last entered the United States as a stowaway in January 1949 and who has no close family ties in this country, notwithstanding his voluntary disclosure of his unlawful immigration status in response to published statements attributable to Service officials.
CHARGE:
Order: Act of 1952 — Section 241 (a) (1) ( 8 U.S.C. 1251 (a) (1)) — Excludable at time of entry; immigrant, no visa.
BEFORE THE BOARD
Discussion: The respondent appeals from an order entered by the special inquiry officer on July 29, 1957, granting him voluntary departure in lieu of deportation on the above-stated charge. Deportability is conceded. Exceptions have been taken to the denial of suspension of deportation under section 244 (a) (1) of the Immigration and Nationality Act ( 8 U.S.C. 1254 (a) (1)).
The respondent, a native and citizen of China, male, married, 39 years of age, last entered the United States at the port of San Francisco, California, on January 1, 1949, as a stowaway. He has never been lawfully admitted to the United States for permanent residence and did not possess an immigration visa at the time of his last entry. The charge stated in the order to show cause is sustained by the evidence of record.
The respondent has applied for suspension of deportation under the provisions of section 244 (a) (1) of the Immigration and Nationality Act, supra. The respondent, at the time he applied for suspension of deportation, had resided in the United States for approximately 8 years and 6 months. He has no close relatives in this country and his wife and their 2 children reside in Hong Kong. The respondent has been self-supporting since he last entered the United States and has cash assets amounting to $1,000 and an outstanding loan receivable amounting to $6,000. The special inquiry officer finds that the respondent satisfies the good moral character requirement of the statute and that he could not readily obtain an immigrant visa if he were required to leave the United States. The special inquiry officer assumes, without deciding, that the respondent is statutorily eligible for suspension of deportation. He denies respondent's application as a matter of administrative discretion.
The respondent testified that in response to public statements and publicity releases of the Immigration Service, emphasizing certain benefits available to Chinese aliens under the Immigration and Nationality Act, he voluntarily came forward to disclose the manner of his entry and his unlawful immigration status. Counsel relates that he advised respondent to voluntarily reveal his unlawful status, relying on published statements attributed to officials of the Immigration Service to the effect that such aliens would be given every possible consideration under the discretionary provisions of the Immigration and Nationality Act if found eligible for adjustment of status.
One of the reasons which prompted the Immigration Service to appeal to aliens unlawfully in the United States to adjust their immigration status is the fact that section 244 (a) (1) of the Immigration and Nationality Act will no longer be available after December 23, 1957. The appeal, however, must be comprehended in light of the precedent decisions which have interpreted this provision of the Immigration and Nationality Act. Conceivably there are many aliens unlawfully in the United States who are unknown to the Immigration Service and who would qualify for suspension of deportation under the standards which we have applied. It was to this class of aliens that the appeal by officers of the Immigration Service was primarily directed.
Matter of S----, A-5388920, 5 IN Dec. 409 (B.I.A., Aug. 13, 1953); Matter of U----, A-6330926, 5 IN Dec. 413 (B.I.A., Aug. 13, 1953); Matter of P----, 5 IN Dec. 421 (B.I.A., Aug. 13, 1953); Matter of W---- Y---- L----, E-13097, 5 IN Dec. 637 (B.I.A., Jan. 22, 1954); Matter of S----, E-12287-8-9, 5 IN Dec. 695 (B.I.A., Mar. 3, 1954); Matter of V----, A-7934061, Int. Dec. No. 828 (B.I.A., Nov. 15, 1956); Matter of Z----, A-2074510, 5 IN Dec. 419 (B.I.A., Aug. 13, 1953); and Matter of W----, E-078223, 5 IN Dec. 586 (B.I.A., Dec. 29, 1953).
Counsel maintains that the special inquiry officer has acted arbitrarily in denying respondent's application for suspension of deportation as a matter of administrative discretion. He argues that the rule is well established that statutory provisions for discretionary relief should be administered in a manner providing like treatment for those in like circumstances. He cites in support of his argument the case of Matter of J---- F---- C----, A-10838411 (unreported), which was approved for suspension of deportation by the Acting Regional Commissioner for the Southwest Region on June 19, 1957, and forwarded to the Congress on or about July 5, 1957.
We agree with counsel that statutory provisions for discretionary relief should be administered in a manner providing like treatment for those in like circumstances. As a basis for uniform application of the discretion provided by section 244 of the Immigration and Nationality Act, we are guided by certain fundamental factors in reaching a determination of whether an alien's deportation would result in "exceptional and extremely unusual hardship." We have said that it is not necessary that all factors be existent in every case, but at least several factors should be present ( Matter of S----, A-5388920, 5 IN Dec. 409, 410 (B.I.A., Aug. 13, 1953)).
The factors set forth in Matter of S----, supra, are as follows: (1) length of residence in the United States (including consideration of the manner of entry and the fact that respondent entered the United States prior to the enactment of a suspension statute), (2) family ties, (3) possibility of obtaining a visa abroad, (4) financial burden on the alien of having to go abroad to obtain a visa, and (5) the health and age of the alien.
Section 244 (a) (1) of the Immigration and Nationality Act requires, inter alia, a finding that the alien's deportation would result in "exceptional and extremely unsual hardship" to the alien or to his citizen or lawfully resident alien dependents. It has been held that the term "exceptional and extremely unusual hardship" applies to those cases of a limited category in which deportation of the alien "would be unconscionable."
Cf., Senate Report No. 1137, 82d Congress, 2d Session (1952); Asikes v. Brownell, 230 F. (2d) 34 (C.A.D.C., 1956); Vichos v. Brownell, 230 F. (2d) 45 (C.A.D.C., 1956).
We concede that the respondent's case presents factors similar to those considered in unreported Matter of J---- F---- C----, supra. Both aliens entered as stowaways and barely meet the residential requirement of the statute. Both aliens applied for suspension of deportation after voluntarily revealing their illegal immigration status. They have in common no close relatives residing in the United States as their families reside in Hong Kong. They are similarly situated financially and both aliens failed to submit address report cards. However, we are not bound by the conclusion reached in Matter of J---- F---- C----, supra. We believe that an orderly administration of section 244 (a), supra, wherein aliens in similar circumstances receive like treatment, requires us to adhere to the standards we have applied in the past to the many cases which have come before us. It has always been our policy to apply these standards uniformly in such a manner as to express the intention of Congress that suspension of deportation is limited to those cases in which deportation would be unconscionable.
We agree with the special inquiry officer that the respondent's voluntary revelation of his unlawful immigration status is commendable. It is, however, insufficient to justify a grant of suspension of deportation when the record as a whole is considered in the light of standards applied in the past. The appeal will be dismissed.
Order: It is directed that the appeal be and the same is hereby dismissed.