56101/698
Decided by the Board May 9, 1942.
Readmission of legally admitted aliens — Section 13 (b), Immigration Act of 1924.
Readmission of a legally resident alien who has temporarily departed from the United States without an immigration visa is authorized under section 13 (b) of the Immigration Act of 1924 and may be directed in accordance with established administrative practice despite the repeal of regulations exempting such alien from the presentation of an immigration visa.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — Immigrant without immigration visa.
Executive Order 8766 — No passport.
Act of 1940 — No permit to enter.
STATEMENT OF THE CASE: The appellant applied for admission at Jackman, Me., March 7, 1942, seeking readmission to the United States. He was rejected by a board of special inquiry on the grounds above stated. From this action he appeals.
DISCUSSION: The appellant was born in Canada July 31, 1921. He was lawfully admitted to the United States for permanent residence upon presentation of an immigration visa on November 29, 1924. He has lived in the United States continuously since this admission. On the night of March 2, 1942, the respondent went to Canada for a pleasure trip. He is now seeking to resume his residence in the United States and rejoin his parents. It thus appears that this young man of 20 has permanently resided in this country since he was 3 years old, and that his short excursion to Canada by no possible means may be considered an interruption to his residence.
Although the board of special inquiry did not make reference to the acts upon which it based its excluding order, it appears that the respondent is inadmissible to the United States because not in possession of documents required by Executive Order 8766, promulgated under the authority of the Passport Act of May 22, 1918, as amended; section 30 of the Alien Registration Act of 1940; and section 13 of the Immigration Act of 1924. The respondent is in possession of neither an immigration visa, a reentry permit, a border-crossing identification card, nor a passport. He is inadmissible under the Executive order and the two acts mentioned.
In reference both to the Executive order and to section 30 of the Alien Registration Act of 1940, the Secretary of State has authority to waive documentary requirements in emergency cases. It appears from a letter attached to the record from the Secretary of State that the Immigration and Naturalization Service, after the alien's exclusion by the board of special inquiry and after the record was forwarded to the Central Office of the Service, asked the Secretary of State whether he would waived the documents required by Executive Order 8766 in behalf of this alien. On April 25, 1942, the Secretary of State waived the documents required by this order. Therefore, the alien's inadmissibility under the Executive order has now been cured.
The Secretary of State in replying to the communication from the Immigration and Naturalization Service did not grant a waiver in reference to section 30 of the Alien Registration Act of 1940. The alien's case falls within none of the waivers granted to certain classes of aliens by the Department of State and listed in Information Bulletin No. 5 of the Immigration and Naturalization Service. This Board, therefore, communicated with the Department of State and has been advised under date of May 7, 1942, that a further waiver of documents is granted in this case under the provisions of section 30 of the Alien Registration Act of 1940.
Thus the sole remaining ground of inadmissibility of the alien is section 13 (a) of the Immigration Act of 1924, which requires all immigrants to present immigration visas. Subdivision (b) of section 13 grants discretion to admit aliens without an immigration visa who have been legally admitted to the United States and who are returning from a temporary absence abroad. Under this provision of law, regulations were promulgated that exempted aliens from presenting visas or documents in lieu thereof who had been legally admitted to the United States and who visited in Canada and other nearby countries for a period not exceeding 6 months. This rule, however, was canceled by General Order C-35 of November 14, 1941. Notwithstanding this, in an individual case, and in accordance with a long administrative practice, and solely in regard to an alien's admissibility under the 1924 act, this Board may admit a returning resident under section 13 (b) who is not in possession of an immigration visa nor exempted from possessing a visa by general regulations. We conclude that the circumstances in this case require the admission of this alien under this provision of law. Thus documentary requirements under Executive Order 8766, section 30 of the Alien Registration Act of 1940, and section 13 of the Immigration Act of 1924 have been waived, and the alien becomes admissible to the United States.
FINDINGS OF FACT: Upon the basis of all the evidence adduced at the hearing, it is found:
(1) That the appellant is an alien, native and citizen of Canada;
(2) That the appellant was admitted to the United States for permanent residence on November 29, 1924;
(3) That the appellant departed from the United States for the purpose of visiting temporarily in Canada on March 2, 1942;
(4) That the appellant is now seeking to return to the United States for permanent residence;
(5) That the appellant is not in possession of documents of any character;
(6) That the Secretary of State has waived passport and visa requirements under Executive Order 8766;
(7) That the Secretary of State has waived documentary requirements under section 30 of the Alien Registration Act of 1940.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That the appellant is not inadmissible under Executive Order 8766;
(2) That the appellant is not inadmissible under section 30 of the Alien Registration Act of 1940;
(3) That the appellant qualifies for consideration and has been found entitled to admission under the provisions of section 13 (b) of the Immigration Act of 1924;
(4) That the appellant is not inadmissible under section 13 (a) of the Immigration Act of 1924.
ORDER: It is ordered that the alien be admitted for permanent residence.