A-1605003
Decided by Central Office January 31, 1949 Decided by Board March 28, 1949
Seventh proviso relief — Section 3 of the Immigration Act of 1917 — Moral character — Discretion.
Where an alien was sentenced for several minor offenses since 1940, was married in Canada in order to circumvent the law of North Dakota where he resided, lived in a district considered "red light," and whose reputation was not good according to the county sheriff, he would not be granted discretionary relief under the provisions of section 3 of the Immigration Act of 1917 to waive a conviction for rape in 1918.
CHARGES:
Warrant: Act of 1917 — Admits crime prior to entry, to wit: Rape.
Lodged: Act of 1940 — No visa, reentry permit, or border crossing identification card.
Act of 1917 — Convicted of crime involving moral turpitude, to wit: Rape.
BEFORE THE CENTRAL OFFICE
Upon consideration of the entire record, the findings of fact and conclusions of law as to deportability, proposed by the Presiding Inspector and served on the alien's counsel on November 1, 1948, are hereby adopted.
Discussion: The respondent is a 54-year-old male, native and citizen of Norway, who last entered the United States on July 24, 1947, at Noonan, N. Dak. At the time of this entry he was not in possession of a valid visa, reentry permit, or border crossing identification card.
There was introduced into the record, certified copies of complaints, justices' return, States attorney affidavits, confession of guilt, criminal information and judgment in the case of the State of North Dakota v. Otto Danielson, showing that the person named was convicted on July 27, 1918, for the crime of rape and was sentenced to a term of 5 years in the State penitentiary. Respondent identified this record as relating to him and admitted the commission of the crime. There is no question that the crime involves moral turpitude.
Counsel for the respondent urges that because of the short duration of respondent's stay in Canada, his return should not constitute an entry. He cites many cases in support of this contention, but these cases are not in point or have been overruled by higher authority. The general proposition is that every return from a foreign country constitutes an entry ( U.S. ex rel. Claussen v. Day, 279 U.S. 398; U.S. ex rel. Stapf v. Corsi, 287 U.S. 129; U.S. ex rel. Volpe v. Smith, 289 U.S. 422). Recent exceptions to this rule are that the alien's "itinerary was forced upon him by wholly fortuitous circumstances" ( Delgadillo v. Carmichael, 332 U.S. 388 (1947)), or that the alien was wholly unaware of what was transpiring ( Di Pasquale v. Karnuth, 158 F. (2d) 868.). Since respondent's departure from the United States was a calculated and voluntary act, entirely within his control, his return must be considered an "entry" ( Matter of C----, A-4886489, C.O., Oct. 19, 1948; U.S. ex rel. Volpe v. Smith, supra). The charge in the warrant of arrest and the lodged charges are, therefore, sustained.
Consideration is now given to respondent's application for discretionary relief under the seventh proviso to section 3 of the act of February 5, 1917. The grant of relief under this provision is reserved to especially meritorious cases. Generally, the requirements are that the alien clearly establishes a long period of residence in this country, close, entirely dependent, family ties and an unblemished record for at least 7 years.
Undoubtedly respondent meets the first requirement since he has resided in the United States since April 9, 1911.
To meet the second requirement, respondent has testified that he and O---- V---- S----, a negress, were married on July 24, 1947, at Estevan, Saskatchewan, Canada, and that O---- V---- S---- was born in the United Staes. However, he has also testified that they traveled to Canada and were married there for the purpose of circumventing the laws of North Dakota, where both reside. Exhibit 7 is a letters from the State's attorney advising that under section 14-0308 of the North Dakota Code, such a marriage is void. Exhibit 8 contains excerpts from the North Dakota code, showing that cohabitation and marriages between negroes and white persons are prohibited and section 14-0304, also declares such marriages to be void. From the factors surrounding this marriage we must conclude that the marriage is void under the laws of North Dakota.
Counsel contends that the statutes of North Dakota pertaining to miscegenation are unconstitutional. In support of this contention he cites Perez v. Lippold, 198 Pac. 2d, 17; Oct. 1, 1948, wherein the California Supreme Court by divergent opinions held (at p. 29):
In summary, we hold that sections 60 and 69 are not only too vague and uncertain to be enforceable regulations of a fundamental right, but that they violate the equal protection of the laws clause of the United States Constitution by impairing the right of individuals to marry on the basis of race alone and by arbitrarily and unreasonably discriminating against certain racial groups.
With due deference to that court's opinion, we feel constrained to follow the rulings of the United States Supreme Court ( Pace v. Alabama, 106 U.S. 583), and the United States Circuit Court of Appeals ( Stevens v. United States, 146 F. (2d), 120, C.C.A. 2 (1944)). In the latter case the court stated:
The marriage ceremony between these persons took place in Kansas. But in respect of the acquisition of property in Oklahoma by descent and distribution, persons domiciled in that State, and subject to a valid inhibition against entering into a marriage contract there, cannot elude the law of the State by going into another State and being married there, and then immediately returning to Oklahoma to live and maintain the marriage assumed abroad. Eggers v. Olson, supra.
Section 12, supra, making unlawful marriages between persons of African descent and persons of other races or descents is challenged on the ground that it violates the fourteenth amendment. Marriage is a consentient covenant. It is a contract in the sense that it is entered into by agreement of the parties. But it is more than a civil contract between them, subject to their will and pleasure in respect of effects, continuance, or dissolution. It is an essential institution in every well-organized society. It affects in a vital manner public welfare, and its control and regulation is a matter of domestic concern within each State. A State has power to prescribe by law the age at which persons may enter into marriage, the procedure essential to constitute a valid marriage, the duties and obligations which it creates, and its effects upon the property rights of both parties. Maynard v. Hill, 125 U.S. 190, 8 S. Ct. 723, 31 L. Ed. 654. And within the range of permissible adoption of policies deemed to be promotive of the welfare of society as well as the individual members thereof, a State is empowered to forbid marriages between persons of African descent and persons of other races or descents. Such a statute does not contravene the fourteenth amendment. Ex parte Francois, 9 Fed. Cas. p. 699, No. 5047; In re Hobbs, 12 Fed. Cas. p. 262, No. 6550; Ex parte Kinny, 14 Fed. Cas. p. 602, No. 7825; State v. Tutty, 41 F. 753, 7 L.R.A. 50; State v. Gibson, 36 Ind. 389, 10 Am. Rep. 42; State v. Kennedy, 76 N.C. 251, 22 Am. Rep. 683; Green v. State, 58 Ala. 190, 29 Am. Rep. 739; Frasher v. State, 3 Tex. App. 263; 30 Am. Rep. 131; Dodson v. State, 61 Ark. 57, 31 S.W. 977; Kirby v. Kirby, 24 Ariz. 9, 206 P. 405; In re Shun T. Takahashi's Estate, 113 Mont. 490, 129 P. 2d 217.
Section 12, supra, is attacked on the further ground that it impinges upon section 1 of the Civil Rights Bill, R.S. section 1977, 8 U.S.C.A. section 41. The statute does not merely forbid a person of African descent to intermarry with a person of other race or descent. It equally forbids a person of other race or descent to intermarry with a person of African descent. And the succeeding section prescribes the same punishment for both offenders. There is no discrimination against the colored race, within the purview of the Civil Rights Bill. Pace v. State of Alabama, 106 U.S. 583, 1 S. Ct. 637, 27 L. Ed. 207.
In light of the long and uniform line of decisions (cited in the Stevens case, supra), we feel the weight of authority is opposed to the position of the California court. Counsel's exception in this regard is, therefore, disallowed.
Twenty-nine States other than California have similar laws pertaining to miscegenation and in 6 of these States it is subject matter of State Constitutions ( Perez v. Lippold, supra, at p. 38). See also 38 C.J., p. 1280, par. 28; 55 C.J.S., p. 828, par. 15, cf., Plessy v. Ferguson, 163 U.S. 537.
If under the laws of the State wherein respondent resides, his marriage is not valid, the grant of relief on the ground urged by counsel that deportation would be a hardship to his "wife," must be withheld. (See Matter of C---- R---- L----, V.P. 342647; C.O., Aug. 1, 1946, affirmed B.I.A., Aug. 6, 1946.)
On the question of character, counsel states that there is no showing of moral depravity and there is no finding involving moral turpitude. With the exception of the conviction of rape, this is true. But for the exercise of discretion under the seventh proviso, higher standards are required than those shown here, and this is particularly true where the ground sought to be waived is of a criminal nature and as serious as the crime of rape. In this regard, it is pointed out that the respondent does not have an unblemished record for the past 7 years.
Local criminal record of Minot, N. Dak., show respondent to have been convicted as follows:
Date Charge Sentence
July 23, 1940 .... Gambling ....................... 30 days and $10. Apr. 3, 1942 ..... Allowing minors in pool hall ... $5 or 5 days. Apr. 7, 1942 ..... ..... do ....................... Do.
And in addition on June 1, 1943, he was convicted in Chicago, Ill., on a charge of interstate transportation of lottery tickets for which he was sentenced to 1 hour in custody of the United States marshal. An independent character investigation discloses that the respondent resides in what is considered a "red light" district; that according to the sheriff of Ward County, N. Dak., his reputation is not good. In addition he is maintaining an "illicit" relationship by residing with a woman not his "lawful wife" since it appears that such relationship is in violation of section 12-2213 of the North Dakota code. Other than these matters, nothing adverse to respondent is disclosed.
While the offenses for which respondent was convicted are not of too serious a nature, their cumulative effect shows a disregard of law which is substantiated by respondent's testimony that he "married" in Canada to circumvent the law of North Dakota.
Under all of the circumstances herein, a favorable exercise of discretion is not indicated.
Recommendation: It is recommended that application for exercise of the seventh proviso be denied. It is further recommended, That the alien be deported to Norway at Government expense on the charge contained in the warrant of arrest and on the following additional charges:
The Immigration Act of May 26, 1924, in that, at the time of entry, he was an immigrant not in possession of a valid immigration visa and not exempted from the presentation thereof by said act or regulations made thereunder.
The act of February 5, 1917, in that, he has been convicted of a felony or other crime or misdemeanor involving moral turpitude prior to entry into the United States, to wit: Rape.So ordered.
Upon consideration of the entire record, it is ordered that the appeal from the decision of the Commissioner be and the same is hereby dismissed.