56038/883
Decided by the Board September 24, 1941. Approved by the Attorney General January 2, 1942.
Seventh Proviso to section 3, Immigration Act of 1917 — Prior legal entry.
To qualify an alien for admission under the seventh proviso to section 3 of the Immigration Act of 1917, his 7-years' domicile in the United States need not have had its inception in a legal entry.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917 — Likely to become a public charge. Person of constitutional psychopathic inferiority.
APPLICATION: Admission to resume residence.
National Catholic Welfare Conference, Washington, D.C., for the appellant.
BEFORE THE BOARD
STATEMENT OF THE CASE: On June 5, 1940, the appellant applied at Laredo, Tex., for admission as an immigrant under section 4 (c) of the 1924 act. The board of special inquiry found him inadmissible under section 3 of the 1917 act on the grounds above stated. The record was forwarded on appeal pursuant to rule 13, subdivision A of the Immigration Rules and Regulations, as amended.
On July 3, 1940, the case was ordered reopened for the introduction of proof of United States domicile and other matters, and after the introduction of such evidence, the board of special inquiry reaffirmed its excluding decision. On September 30, 1940, it was ordered that the excluding decision be affirmed and that admission under the seventh proviso be denied. However, on the presentation of new material evidence, the case was again reopened on October 11, 1940, and it was ordered that the alien be examined by a medical board. There has been introduced the report of the medical board and the new evidence gathered by the National Catholic Welfare Conference, and the case is now before this Board for further consideration.
DISCUSSION: Reference is had to the rescinded order of September 30, 1940, for a detailed statement of the facts of this case as developed to that date. Summarized, this case is that of a 40-year-old married native and citizen of Mexico, who has resided and been employed in the United States since an illegal entry in 1923. In August 1939 he suffered an attack of what was probably amnesia and found himself in Mexico.
He is in possession of a section 4 (c) immigration visa, and he is applying for admission to resume his residence with his wife and eight children, seven of whom are native-born citizens.
The medical board convened to review his certification as a person of constitutional psychopathic inferiority has affirmed the original certification and again certified him as afflicted with constitutional psychopathic inferiority. However, the report accompanying this recertification shows that appellant is not now physically, mentally, or neurologically ill, and that his certification is based on his and other testimony as to his past mental upset. This is not mentioned as detracting from the weight to be given the medical board's certification, but rather for its relevance to the consideration of this case under the seventh proviso.
There has also been introduced a letter from the National Catholic Welfare Conference, Bureau of Immigration, transmitting certain evidence in support of the application for favorable consideration of this case under the seventh proviso. The evidence consists of statements of appellant's employer and other persons and organizations. Appellant's employer states that appellant has been employed since 1927; that he has performed satisfactory work and is a loyal and capable worker; and that he will be reemployed on his return to his home. The Employees Welfare Organization at his place of employment states that appellant has been favorably known to that organization for 15 years and that "He has been a quiet, self-respecting man, a good husband and a kind father, and has never shirked in his responsibility as the head of his family."
There is also in the record the affidavit of a friend of the appellant who petitions for appellant's admission. The affiant has been employed for the past 15 years at a salary of $30 a week and has savings of $100. He promises to assist appellant in every possible way and further promises that appellant will not become a public charge. The National Catholic Welfare Conference writes that it will be difficult to arrange for the posting of a bond in behalf of appellant.
Appellant is not ill at the present time, and there is nothing in the report of the medical board to indicate that his "psychotic episode" will recur. The report seems to be in the nature of an opinion on appeal, holding that there had been sufficient evidence before the examining surgeon to justify appellant's certification as a person of constitutional psychopathic inferiority. In view of appellant's present state of health and the assurance that he will be reemployed, there appears no valid reason why it cannot be expected that if he is admitted he will return to his family and continue to support them as he has in the past. The case therefore appears to be one for the favorable exercise of the discretion vested in the Attorney General under the seventh proviso to section 3 of the 1917 act.
It has been suggested, however, that there is a question whether the discretion granted by the seventh proviso may lawfully be exercised on behalf of an alien whose domicile in the United States had its origin in an illegal entry. As will be detailed below, all indicia show an intent on the part of Congress that it might be so exercised in hardship cases; so to exercise it has been the substantially uniform administrative practice from 1917 to date; and that practice has recently been given at least tacit approval by the Attorney General.
The case is, nevertheless, certified to the Attorney General under section 90.12, title 8, Code of Federal Regulations.
The problem presents two principal aspects: First, the intent of Congress as shown by the statute itself, construed in connection with all other relevant provisions to make a consistent whole; and, second, the effect of administrative and other rulings on the point.
As to the first aspect: There seems to be no doubt that Congress granted the discretion in the seventh proviso for the purpose of alleviating hardship. Statements to this effect may be found in Senate Report 352 (64th Cong., 1st sess., p. 6) and in Senate Report 355 (63d Cong., 2d sess., p. 6). As an original proposition, it would seem difficult, if not impossible, to sustain the view that an alien who has resided in the United States for 7 years, but whose entry was illegal, must, ipso facto, be incapable of suffering hardship. It is equally difficult to suppose that he must suffer hardship that is smaller or different in kind from that undergone by an alien who entered legally but whose residence subsequent to entry presents no distinguishing factors.
It is conceivable, however, that Congress did not intend to alleviate hardship actually suffered by illegal entrants. And that possibility merits separate attention.
As a preliminary matter of interest on this point, it may be noted that the section displaced by the one here under discussion was much more restrictive, authorizing the exercise of discretion on behalf only of aliens who had taken out first papers (S. Repts. 352 and 355 supra). Moreover, the explanation given in the Senate reports affords no basis for the notion that, in thus expanding the scope of the proviso, Congress intended to stop at benefitting legal residents. Reference is there made to the clause as a
"Humane" provision "to permit the readmission to the United States (under proper safeguards) of aliens who have lived here a long time and whose exclusion after a temporary absence would result in peculiar or unusual hardship" (S. Rept. 352 supra).
Clearly, the words "who have lived here a long time" suggest that the concern of Congress was with physical presence and its effect upon the alien's affairs. Thus is afforded some basis for an inference that no distinction predicated upon legal entry was intended.
In addition to this inference, moreover, there exists in the statute strong internal evidence supporting the same conclusion. Of primary significance is comparison of the seventh proviso as finally adopted with the wording of the first proviso of the same section. The first proviso sets forth, among other things, that:
* * * all aliens who have been lawfully admitted to the United States and who have resided therein continuously for 5 years and who return to the United States within 6 months from the date of their departure therefrom * * * [are exempt from exclusion for illiteracy under the section].
Congress in this proviso expressly made legal residence a prerequisite to relief, whereas in the seventh proviso the word "domicile" stands unqualified by any reference to legality.
This is convincing evidence that in selecting the latter wording Congress was aware of the extent to which its provisions were broadened by the change noted above. The familiar constructional doctrine relating to a statute that in one place employs an explicit term of art and in another omits it, applies with added force where, as here, the variant provisions appear in the same section of the same act and relate to closely similar topics. By a parity of reasoning, it is significant that the tax imposed by section 2 of the same act is waived on behalf of "aliens who have been lawfully admitted to the United States and who later shall go in transit from one part of the United States to another through foreign contiguous territory." This section again demonstrates that when Congress intended to confer benefits solely upon legal entrants it utilized apt phraseology in restricting its bounty. More remote indications of the same proposition may be found in the limitation by Congress of benefits conferred by sections 4 (b) and 13 (b) of the Immigration Act of 1924 ( 43 Stat. 153), to those aliens who have been legally admitted.
In support of the contention that the suggested distinction was intended, moreover, is the fact that in all the situations noted as arising under the 1917 act, in which benefits were restricted to aliens who had entered legally, the benefits were automatically conferred once the condition of legal entrance (and such additional conditions as were imposed) had been met. In the seventh proviso, however, the benefit was withheld subject to the exercise of discretion by an administrative officer. This would indicate that the latter provision was meant to apply to cases in which there would be problems relating to admission aside from those created by the prerequisite of a former domicile. Thus it seems clear that Congress intended the Secretary of Labor to exercise discretion not with respect only to the existence of hardship, but with respect also to other factors such, perhaps, as the nature of the alien's entry and other indicia of his character and propensities. ( See memorandum by the Service attorney in the case of M---- K---- (56069/889) [ see page 79, this volume].)
Insofar, then, as the intent of Congress is shown by indicia aside from administrative and other rulings on the point, the foregoing analysis justifies the conclusion that the discretion conferred by the seventh proviso was intended to extend to aliens who had entered the country illegally. The purpose of the proviso, its legislative history, the language in which it is couched, and its construction in relation to other provisions of the same and other related acts to make a consistent whole — all require the same result.
The administrative rules and decisions over an extended period are no less conclusive. Rule 13A, Immigration Rules, governs admission under the seventh proviso. Since at least 1919 this rule and its predecessors have stood without reference to legality of entry, despite numerous amendments and re-editions. See rule 16, Rules of May 1, 1917 (3d edition, March 1919). Within 2½ months after the date on which the act in question became effective, a former Solicitor of the Department of Labor rendered an opinion in the case of K---- Y---- (4/205) concluding that the alien could be admitted under the seventh proviso notwithstanding the fact that his residence in the country had originated in a surreptitious entry which violated the existing immigration laws. That ruling appears to have been followed with substantial, if not complete, uniformity by the administrative bodies exercising delegated powers of review during the period of more than 24 years following its rendition. And a recent ruling in accord by this Board ( M---- K----, supra) has been approved by the Attorney General.
There follows a random sampling of cases in which the proviso has been exercised on behalf of aliens whose original entry was illegal.
(1) S---- D---- (55632/163): Entered on passport fraudulently obtained by presenting birth certificate. Seventh proviso exercised January 15, 1935.
(2) P---- L---- (55856/723): Entered on a passport to which not entitled. Seventh proviso exercised September 24, 1935.
(3) O---- S---- J---- (55869/927): Entered as a deserter. Seventh proviso exercised October 29, 1935.
(4) T---- E---- C---- (55787/200): Entered with fraudulently obtained visa. Seventh proviso exercised July 17, 1936.
(5) L---- C---- (55656/797): Residence originated in overstaying of temporary admission. Seventh proviso exercised December 10, 1936.
(6) W---- K---- (55862/728): Entered with forged visa. Seventh proviso exercised November 1, 1937.
(7) Z---- S---- (55868/414): Entered with forged visa. Seventh proviso exercised July 15, 1937.
(8) W---- P---- (55796/547): Entered on a passport to which not entitled. Seventh proviso exercised January 24, 1938.
(9) J---- H---- (55970/806): Entered without visa. Seventh proviso exercised March 16, 1939.
(10) J---- K---- (55856/313): Entered on fraudulently obtained visa. Seventh proviso exercised September 5, 1939.
(11) L---- R---- (55867/228): Entered on fraudulently obtained passport. Seventh proviso exercised November 1, 1939.
(12) C---- H---- (55943/439): Entered without visa or inspection. Seventh proviso exercised March 30, 1940.
(13) J---- R---- (56071/174) [ see page 118, this volume]: Entered with fraudulently obtained Cuban birth certificate. Seventh proviso exercised June 13, 1941.
It should be emphasized that the thirteen cases cited are not intended to comprise an exhaustive compilation. It is not thought that they comprise even a fair sampling, either as to subject matter or date of decision. They do represent, however, some index to the practice consistently followed in administrative determinations for nearly a quarter of a century.
Even more significant is the case of M---- K---- (56069/889). That file involves a situation in which this Board, on April 18, 1941, exercised the seventh proviso on behalf of an alien who had entered as a stowaway. A memorandum attached to that file and opposing the disposition there made states, in its final paragraph:
Furthermore, this does not appear to be a case which calls for the favorable exercise of the discretionary authority contained in the seventh proviso, in view of the unlawful entry of the alien * * *.
Thus it is clear that the point of illegal entry was explicitly brought to the attention of this Board and, later, of the Attorney General. The case was certified to the Attorney General on April 28, 1941. And the decision and order of this Board were approved.
This long history of consistent administrative action should be accorded great weight ( Costanzo v. Tillinghast, 287 U.S. 341) and should not be disturbed where it is not clearly unlawful ( Lucas v. American Code Co., 280 U.S. 445). Moreover, subsequent to the adoption of this administrative position, the 1917 act has been amended a number of times without alteration of this clause (the last being the Act of June 28, 1940). This failure to act adversely to a long-standing practice gives rise to an inference that Congress has approved it. Helvering v. Winmill, 305 U.S. 79; Costanzo v. Tillinghast ( supra) semble. That inference is ordinarily based, of course, upon the assumption that Congress was aware of the practice. In this case, however, there is no need to rely upon such an assumption, since the practice was in fact subjected to the critical scrutiny of Congress in the hearings on the 1941 appropriation bill, February 10, 1940 (hearings before the Subcommittee of the Committee on Appropriations, House of Representatives, 76th Cong., 3d sess., Pt. I, p. 212-228). At that time a complete analysis of cases in which the seventh proviso had been exercised during the year 1939-40 was submitted in response to inquiries as to the character of benefit being bestowed by its use. Accordingly, the inference of congressional approval is incomparably stronger than in the ordinary cases in which it is indulged. It may, indeed, be taken as practically conclusive when it is recalled that some of the amendments made to the act since that time have dealt with matters closely related to the very subject under discussion at the hearings. In such circumstances the silence of Congress can properly be taken only as explicit approval.
In view of these overwhelmingly strong indicia pointing to the conclusion that the seventh proviso may legally be exercised in the accustomed manner, further discussion and, indeed, much of that already entered into, might seem a work of the sheerest supererogation. There are, however, three judicial utterances from lower courts that have been thought to indicate an opposite result.
Gabriel v. Johnson, 29 F. 2d 347 (C.C.A. 1, 1928); Hurst v. Nagle, 30 F. 2d 346 (C.C.A. 9, 1929); S---- H---- (55991/972, unreported decision by Judge Bondy of the U.S.D.C., S.D.N.Y., Nov. 21, 1938). Cf. United States ex rel. Halepis v. Reimer, U.S.D.C., S.D.N.Y., July 20, 1938 (also unreported).
It suffices to say of these dicta that none of them was necessary to any issue properly before the court that propounded it. In none of them did the court undertake any examination of the purpose, legislative history or statutory setting of the seventh proviso. And each was made without reference to the long-standing administrative practice or to other relevant aids to construction.
Gabriel v. Johnson, 29 F. 2d 347, supra, involved a situation where the Board of Review had excluded an alien and refused to exercise the seventh proviso on the ground that he had not proved 7 years' residence prior to his departure and attempted reentry. Alien's counsel had conceded that proving lawful entry was a prerequisite to the success of his appeal from dismissal of a writ of habeas corpus. Thus the Board's decision raised no question as to the requirement of lawful entry; and, even if it had, counsel's admission waived it.
Hurst v. Nagle, 30 F. 2d 346, supra, makes the broad statement: "No domicile in the United States can be established by an alien whose entry was unlawful." This is said with direct reference only to the construction of 8 U.S.C. No. 204 (b), a section that refers in terms to immigrants "previously lawfully admitted."
S---- T---- (55991/972) involved a case in which, as the court points out, the seventh proviso was plainly inapplicable on the ground that the alien lacked the required documents for entry under any circumstances.
It should be noted that, in all of these cases, the alien was urging the court to take jurisdiction to find that the Secretary of Labor should have exercised the discretion in the seventh proviso. Such jurisdiction plainly does not exist. And any statement by the court made on the assumption that it does is therefore obiter.
It therefore seems apparent that, despite the obligation to accord great weight to judicial construction of statutes governing the action of this Board and of the Attorney General, no such observations as were made in the cases cited can with propriety be permitted to restrict the scope of an important discretion granted the Attorney General, especially in the face of abundant and convincing evidence that Congress had a contrary intention.
FINDINGS OF FACT: Upon the basis of all the evidence adduced at the hearing, it is found:
(1) That the appellant is an alien, a native and citizen of Mexico;
(2) That the appellant resided in the United States continuously from 1923 to October 1939 when he departed to Mexico;
(3) That the appellant is applying for admission to resume his permanent residence;
(4) That appellant has been certified to be a person of constitutional psychopathic inferiority;
(5) That appellant is likely to become a public charge.
CONCLUSION OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
That under section 3 of the Immigration Act of 1917, the appellant is inadmissible to the United States for the reasons:
(a) That he is likely to become a public charge;
(b) That he is a person of constitutional psychopathic inferiority.
ORDER: It is ordered that the appellant be admitted to resume his permanent residence under the authority contained in the seventh proviso to section 3 of the Immigration Act of 1917.
The foregoing decision and order of the Board were certified to and approved by the Attorney General.