E-086239
Decided by Board February 28, 1956
Suspension of deportation — Section 244 (a) (5), Immigration and Nationality Act — Final order of deportation — Conditional withdrawal thereof does not affect ineligibility for suspension of deportation.
(1) An alien who was served with a final order of deportation on April 26, 1954, under the Immigration and Nationality Act of 1952, at which time he was statutorily ineligible for suspension of deportation under section 244 (a) (5) of the act for lack of ten years' physical presence in the United States, is barred from thereafter qualifying for suspension of deportation.
(2) The purpose of the requirement in section 244 (a) (5) of the act that the alien "has not been served with a final order of deportation issued pursuant to this Act" is to preclude suspension of deportation when the alien was not eligible for such relief at the time of the final order.
(3) A conditional order by the special inquiry officer, in connection with the alien's motion to reopen, withdrawing the outstanding order and warrant of deportation but expressly reserving opinion as to whether the alien is able to qualify for suspension of deportation, does not alter the alien's ineligibility for such relief in the circumstances described above.
CHARGES:
Warrant: Act of 1952 — Seaman under 1924 act — Failed to comply.
Lodged: Act of 1952 — Section 241 (a) (11) — Convicted of violation of law governing taxing, manufacture, production, compounding, transportation, sale, exchange, dispensing, giving away, importation or exportation of narcotic drugs; or the possession of such drugs for such purpose; Act of February 9, 1909, as amended, felonious importation of opium.
BEFORE THE BOARD
Discussion: This case is before us on appeal from a decision entered by the special inquiry officer on October 14, 1955, denying suspension of deportation and ordering that the respondent be deported from the United States on the charge contained in the warrant of arrest and on the lodged charge. The appeal is directed to the denial of the application for suspension of deportation.
Respondent is a 61-year-old married male alien, a native and citizen of China. He last entered the United States at the port of New York on April 5, 1945, and was admitted as a seaman for a period not to exceed 29 days.
In a statement under oath to a Service officer on April 28, 1953, respondent stated that he first entered the United States in 1938 or 1939 and had never been under prior proceedings before the Service. On June 2, 1953, when respondent testified that he had never been arrested for or charged with the commission of crime anywhere in the world, the special inquiry officer entered an oral decision finding respondent deportable on the warrant charge and granting him the privilege of voluntary departure. Subsequently, the hearing was ordered reopened on motion of the special inquiry officer and at a reopened hearing held on April 12, 1954, it was established that respondent was convicted on February 15, 1922, in the United States District Court at Seattle, Washington, of violation of the Act of February 9, 1909, as amended, for having feloniously imported on January 2, 1922, twenty-eight tins of five taels each of smoking opium. He was thereupon sentenced to imprisonment for a period of 2 years. He was released from imprisonment on September 23, 1923, into the custody of the Immigration Service and was returned to China on September 26, 1923.
After the introduction into the record at the reopened hearing in April 1954 of the evidence of respondent's 1922 narcotic conviction, the second charge stated above was lodged against the respondent and by order dated April 14, 1954, the special inquiry officer directed that the respondent be deported on the charge contained in the warrant of arrest and on the lodged charge. This order was served on respondent's attorney by mail on April 26, 1954. No appeal was taken from such order within the required period of 10 days from receipt of notice and accordingly the order of the special inquiry officer dated April 14, 1954, became final. A warrant of deportation was thereupon issued on May 11, 1954.
On July 8, 1955, the respondent, through counsel, submitted a motion for a reopening of the proceedings to enable him to apply for suspension of deportation under the provisions of section 244 (a) (5) of the Immigration and Nationality Act. By order dated August 15, 1955, the special inquiry officer directed the withdrawal of the outstanding order and warrant of deportation and ordered that the proceedings be reopened for the purpose of giving respondent an opportunity to apply for such relief. The special inquiry officer stated, however, that in so reopening, an opinion as to whether the respondent is barred from suspension of deportation by the fact that the warrant of deportation has already been served against him was expressly reserved. Subsequently, at the reopened hearing on September 16, 1955, respondent submitted an application for suspension of deportation under section 244 (a) (5) of the Immigration and Nationality Act.
In the decision of the special inquiry officer which is now before us on appeal, the special inquiry officer finds that respondent is ineligible for suspension as respondent was served with a final order of deportation issued pursuant to the Immigration and Nationality Act on April 26, 1954.
Counsel contends that the warrant of deportation has been withdrawn and that respondent is therefore eligible for suspension of deportation. Section 244 (a) (5) contains a requirement that the alien "has not been served with a final order of deportation issued pursuant to this Act in deportation proceedings up to the time of applying to the Attorney General for suspension of deportation." As noted above, the order of deportation entered by the special inquiry officer on April 14, 1954, became final when no appeal was taken within the required period. Thus, respondent was in fact served with a final order of deportation under the Immigration and Nationality Act. Moreover, the order of the special inquiry officer dated August 15, 1955, wherein the order and warrant of deportation were withdrawn and the proceedings ordered reopened was a conditional order since the special inquiry officer expressly reserved an opinion as to whether the respondent is barred from suspension of deportation by the fact that a warrant of deportation has already been served against him.
We note that when the special inquiry officer entered the order of deportation on April 14, 1954, and at the time such order became final, respondent was statutorily ineligible for suspension of deportation under section 244 (a) (5) of the Immigration and Nationality Act since he did not have the 10 years' physical presence in the United States. We believe that the purpose of the requirement that the alien has not been served with a final order of deportation is to preclude suspension of deportation where the alien was not eligible for such relief at the time of the final order. It is concluded that the special inquiry officer is not in error in finding that respondent is not eligible for suspension of deportation. The appeal will be dismissed.
Order: It is ordered that the appeal be and the same is hereby dismissed.