56107/694
Decided by the Board October 13, 1942.
Exclusion — Scope of review on appeal — Readmission of legally resident aliens — Section 13 (b), Immigration Act of 1924.
1. On appeal from an excluding decision of a board of special inquiry, all grounds of inadmissibility must be considered.
2. In individual cases and in accordance with long administrative practice and solely in regard to admissibility under the Immigration Act of 1924, a legally resident alien may be readmitted under section 13 (b) of the act, although not in possession of an immigration visa nor exempt from the visa requirement by general regulations.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Alien Registration Act of 1940 — No permit to enter.
Executive Order 8766 — No passport.
Mr. Edward J. Ward, Board attorney-examiner.
APPLICATION: Admission to resume residence.
STATEMENT OF THE CASE: The appellant appeared before a board of special inquiry at Laredo, Tex., on September 15, 1942, and was excluded on the above-stated grounds. He appeals.
DISCUSSION: The appellant is a native and citizen of Mexico, 70 years of age, widower, and a merchant. He has resided in the United States since 1913 and was lawfully admitted as an immigrant in 1929. He owns property in Laredo, Tex., valued at about $3,000.
On August 11, 1941, he was issued a resident alien's identification card valid until February 4, 1943. He crossed into Mexico on September 13, 1942. On his return 2 days later he stated that he had lost his border-crossing card in Nuevo Laredo the night before.
The board of special inquiry denied the appellant admission under section 30 of the Alien Registration Act of 1940 because not in possession of either an immigrant visa, a reentry permit, or a border-crossing identification card, and under Executive Order 8766, promulgated by the President under the authority of the Passport Act of May 22, 1918, as amended, because not in possession of a valid passport or an official document in lieu thereof. The appellant is in possession of none of these documents.
The Secretary of State is given power in emergency cases to waive the documents required by section 30 of the Alien Registration Act of 1940. Like authority in reference to Executive Order 8766 requirements is granted the Secretary of State under clause 5, part II, of this order. By virtue of these provisions, documents for immigrants have been waived in certain classes enumerated in clauses (a) through (h) of section 175.44, title 8, C.F.R. The case of appellant falls within none of these general exceptions. There is also authority in the Secretary of State to consider individual cases for waiver of documents (section 175.44 (i), title 8, C.F.R.). Acting under this authority, the Secretary of State has waived documentary requirements under section 30 of the Alien Registration Act and under Executive Order 8766 in regard to the appellant.
The appellant is also inadmissible under section 13 (a) of the Immigration Act of 1924, which requires all immigrants to present unexpired immigration visas. The board of special inquiry did not exclude him under this provision. We, however, should consider all grounds of inadmissibility irrespective of the action of the board of special inquiry ( United States ex rel. Jelic v. District Director of Immigration and Naturalization, 106 F. 2d 14). Subdivision (b) of section 13 confers 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. Regulations were promulgated under this clause that exempted aliens from presenting visas or documents in lieu thereof who had been legally admitted to the United States and who visited in Mexico and among other nearby countries for a period not exceeding 6 months. This rule was canceled by General Order G-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 exempt from possessing a visa by general regulations. We conclude that the circumstances in this case justify the admission of the appellant.
Through these several waivers, the alien becomes admissible to the United States without documents.
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 Mexico;
(2) That the appellant was admitted to the United States for permanent residence on August 20, 1929;
(3) That the appellant departed from the United States for the purpose of visiting temporarily in Mexico on September 13, 1942;
(4) That the appellant is seeking to return to the United States for permanent residence after an absence of 2 days in Mexico;
(5) That the appellant is not in possession of a passport, an immigration visa, a reentry permit, or a resident border-crossing card;
(6) That the Secretary of State has waived documentary requirements insofar as Executive Order 8766 and section 30 of the Alien Registration Act of 1940 are concerned.
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 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 to the United States for permanent residence and that the parole of the alien pending final disposition of this case be approved.