A-4536853.
Decided by Board September 30, 1955.
Petty offense — Section 4 of Act of September 3, 1954 — Benefits thereunder must be granted to person who falls within its provisions.
(1) The benefits of section 4 of the Act of September 3, 1954 (P.L. 770, 83rd Cong., 2d sess.) automatically apply to individuals who come within its terms and the conferring of such benefits is not a matter of discretion.
(2) An individual convicted prior to entry of a misdemeanor classifiable as a petty offense within the meaning of section 4, ( supra), is not excludable under section 212 (a) (9) of the Immigration and Nationality Act nor deportable under section 241 (a) (1) of that act by reason of such conviction.
BEFORE THE BOARD
Discussion: On May 21, 1953, we ordered the respondent's deportation on three grounds: On a documentary ground; on the ground that he had been convicted of the crime of petit larceny prior to entry; and on the ground that he admitted the commission of that crime prior to his entry.
Counsel requests that proceedings be terminated. He contends that the criminal grounds of deportation cannot be sustained because of the provisions of section 4 of Public Law 770, 83rd Cong., 2d sess. ( 8 U.S.C.A. 1182 (a)) and he contends that a documentary waiver which applied to the respondent's entry eliminates the documentary charge. The first issue presented is whether the benefits of section 4 of Public Law 770 (hereafter referred to as "section 4") automatically apply to individuals who come within its terms or whether the conferring of benefits is a matter of discretion with the Attorney General. We decide that Congress intended that the benefits automatically apply to one who comes within the terms of the law.
Section 4 provides:
Any alien who is excludable because of the conviction of a misdemeanor classifiable as a petty offense under the provisions of section 1 (3) of title 18, United States Code, by reason of the punishment actually imposed, or who is excludable as one who admits the commission of such misdemeanor, may hereafter be granted a visa and admitted to the United States, if otherwise admissible: Provided, That the alien has committed only one such offense.
Section 4, therefore, authorizes the admission of a person convicted of or who admits the commission of, one petty offense and no other involving moral turpitude. Section 4 has been given retrospective as well as prospective application ( Matter of C----, E-092142, Int. Dec. No. 635).
The facts pertinent to consideration of the first issue follow. Respondent was originally admitted to the United States in 1906 and last entered the United States about 1933 after a temporary visit to Canada. In 1919, respondent was convicted of the crime of petit larceny in New York and was sentenced to 30 days in the workhouse. He was apparently sentenced under that portion of the Penal Code which makes petit larceny a misdemeanor punishable by imprisonment for a term of not more than one year or fine of $500 or both (New York Penal Law, sections 1298, 1299, 1937; People ex rel. Price v. Hayes, 136 N.Y.S. 854, 858). An alternative method of sentencing permits sentence to a correctional or reformatory institution for an indefinite term not to exceed three years where the prisoner is deemed a fit person for correction and reformation (New York State Correction Law, section 203, Laws 1939, Chap. 661, section 1, formerly Parole Commission, Laws 1950, Chap. 578; People ex rel. Welch v. Slattery, 38 N.Y.S. 2d 11).
Respondent's case appears covered by section 4. The crime for which he was convicted is classified as a petty offense under the provisions of 18 U.S.C. 1 (3) and there is no showing that he has been convicted of or that he admits the commission of more than one crime involving moral turpitude. We are now presented with the issue as to whether the benefits of section 4 may be withheld from respondent as a discretionary matter or whether he is automatically entitled to those benefits. There is no express indication from the language of section 4 itself as to whether the benefits described there are mandatory or discretionary in nature. Congressional debates on the subject do not expressly state either that award of the benefits is mandatory or that it is discretionary.
On August 24, 1954, Representative Francis E. Walter, who introduced the amendment which became section 4, wrote a letter to Senator Pat McCarran, to explain the purpose of the amendment. The letter in essence states that if an alien committed an offense not punishable by imprisonment for more than a year and was actually sentenced to punishment of not more than a certain stated maximum, "the offense would not result in mandatory exclusion * * *" (100 Cong. Rec. Part 12, p. 15388). If an implication must be drawn solely from the use of the expression "mandatory exclusion" it would be that while the offense did not necessarily require exclusion of the alien, it, in the discretion of the Government, could be the basis for exclusion. However, there is no other indication, express or otherwise, that this was the intent of Representative Walter and quite clearly the implication was not drawn by those who debated the bill (100 Cong. Rec. Part 12, pp. 15388, 15490-15492). In the House, Representative Walter made no comment stating that relief was discretionary in nature; and the tenor of the debates in both houses was that the amendment made the excluding provisions of section 212 (a) (9) inapplicable to the aliens therein described. This, for example, is shown by the remarks of Senator McCarran on August 20, 1954, after he had received the letter previously mentioned. The senator stated that "The purpose of the amendment is to exempt from certain exclusion clauses" an alien who meets the tests concerning the commission of petty offenses (100 Cong. Rec. Part. 12, p. 15388).
The use of the verb "may" in section 4 would appear to indicate that a permissive act only was intended, but reflection will show that use of the verb "shall" in place of "may" would not serve, for, so read, it would compel the issuance of a visa-a matter which is discretionary (section 221 (a) of the act).
Moreover, by comparing section 4 with an exception found in paragraph 9 of section 212 (a) of the act, which section 4 modifies (100 Cong. Rec. 15491), we find further support for the belief that discretionary action is not involved in section 4. The exception in section 212 (a) (9) of the act of which we speak, in words very similar to that found in section 4, provides that an alien who belonged to a class of certain youthful criminals "may be granted a visa and admitted." This exception was enacted after a Senate committee had recommended that the exclusionary provisions relating to criminals "be made inapplicable" to certain youthful criminals (Senate Report No. 1515, 81st Cong., 2d sess., p. 354). Another Senate report flatly states of the exception concerning youthful criminals "That the bill excepts [them] from the excludable class" (Senate Report No. 1137, 82d Cong., 2d sess., p. 9). This same report contains a thorough discussion of discretionary powers granted to the Attorney General by the act. Among the many discretionary powers discussed, there is no mention of the exception concerning the youthful criminal (Senate Report No. 1137, ( supra), pp. 11-13). The provisions in paragraph 9 of section 212 (a) of the act concerning youthful criminals and the congressional history of the act show that Congress desired that the excluding provisions of paragraph 9 should be "inapplicable" to a certain class of youthful criminals. In view of the fact that section 4 is in the nature of an amendment to paragraph 9 of section 212 (a) of the act and is couched in terms so similar to those of the exception in paragraph 9, and because the congressional debates on section 4 reveal that petty offense violators were to be exempt from the provisions of paragraph 9, we believe it proper to conclude that section 4, just as the exception found in paragraph 9 itself, is mandatory and not permissive.
On arriving at our conclusion we have found it not without significance that when Congress intended to grant latitude to administrative officials in admitting or excluding aliens, provision was made that action could be taken if certain matters were found established to the "satisfaction," or "in the opinion," of the officials; or that under certain conditions grounds of exclusion could be "waived"; and in other places, the act expressly states that certain powers were "in the discretion of" the officials. None of these expressions appears in section 4. We conclude that the provisions of paragraph 9, excluding criminals, are inapplicable to a "petty-offense alien" such as the respondent. The criminal charges will therefore be dismissed.
The documentary charge arises out of the fact that between 1932 and 1934, the respondent made numerous short trips to Canada. On one of the entries, prior to his last entry he willfully misrepresented himself to be a citizen of the United States in order to facilitate his entry into the country. During the time of these reentries, the regulations provided that no immigrant should be admitted without an immigration visa except that "aliens who have been previously lawfully admitted to the United States and who are returning from a temporary visit of not more than six months to Canada * * *; shall be permitted to enter the United States without an immigration visa" (subdivision (f), paragraph I, Immigration Laws and Rules of January 1, 1930, with amendments from January 1, 1930 to May 24, 1934 (emphasis added)).
Counsel argues that the existence of this waiver of documents applies to the respondent's entries from Canada and that the documentary charge is therefore not sustained. Assuming solely for the sake of argument that the waiver of documents applies to aliens who evaded inspection upon entry by claiming to be citizens of the United States, we do not believe the documentary charge must fall. This is because the respondent was not an alien "lawfully admitted" at the time of his last entry from Canada. He had prior to that entry gained admission to the United States by willfully misrepresenting himself to be a citizen of the United States. An entry made in such a manner is an illegal entry ( Matter of E----, E-080901, Int. Dec. No. 622; Matter of M----, E-118717, 5 IN Dec. 642). It follows that the alien had entered illegally prior to his last entry from Canada and was, therefore, not eligible for the waiver of documents. He was required to be in possession of a visa or reentry permit at the time of that last entry from Canada and did not have those documents. The documentary charge was properly sustained.
We will amend previous orders entered by this Board and the special inquiry officer by eliminating the criminal charges as grounds of deportation. Deportation will be ordered solely on the warrant charge. Order: It is ordered that previous orders be amended by showing the respondent to be deportable solely on the charge in the warrant of arrest.
Immigration Act of May 26, 1924-No immigration visa.
It is further ordered that to the extent the motion for reconsideration requests termination of proceedings it be and the same is hereby denied.