A-4799866, (A-6771626), A-6846155
Decided by Central Office July 8, 1948
Crime involving moral turpitude — Intent to defraud the United States by improper use of United States passport — Violation of 18 U.S.C. 80 — Recommendation against "deportation" by convicting court — Effect thereof in "exclusion" proceedings, as distinguished from "expulsion" proceedings.
1. Intent (attempt) to defraud the United States by improper use of the United States passport showing him to be a citizen of the United States and to have been born at San Francisco, Calif., for the purpose of effecting entry into the United States, knowing full well that he was not born there and was not a citizen of the United States, in violation of 18 U.S.C. 80, is an offense involving moral turpitude.
2. In exclusion proceedings, the timely recommendation against "deportation" by the court (in the United States) convicting and sentencing the alien for the above offense, has the effect of "immunizing" him from exclusion on the basis of an admission of the commission or conviction of such offense.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
(As to both appellants) Act of 1924 — No immigration visas.
Executive Order 8766 — No passports.
(As to male appellant) Act of 1917 — Admits commission of crime involving moral turpitude prior to entry, to wit: Perjury.
BEFORE THE CENTRAL OFFICE
Discussion: The applicants arrived from China at San Francisco, Calif., on July 28, 1947, as passengers ex. S.S. Marine Adder. They want to reside here. They were held for a Board of Special Inquiry which conducted a hearing on January 26, 1948 and ordered them excluded on the above-stated grounds, respectively. They have appealed from this decision.
The appellants claim to be husband and wife. She testified they were married in China many years ago and were remarried in China in 1947. The martial relationship is not in dispute.
The appellants are aliens, natives, and citizens of China. Their alienage is not in issue. The record establishes that they have never been lawfully admitted to the United States for permanent residence. They seek to remain here and must be considered to be immigrants. They are not in possession of immigration visas, and they have not presented passports or other official travel documents in lieu thereof issued by the government of the country to which they owe allegiance showing their origin and identity. They are not exempt from these documentary requirements. It must be concluded that they are subject to exclusion on the above-stated documentary grounds.
She has never been in the United States before. He claims that he passed through the United States in transit in 1926 when he journeyed from China to Mexico; that he lived in Mexico from 1926 to 1933, when he had himself smuggled into the United States; that he lived here until February 14, 1947, when he departed for a visit to China.
His testimony shows that he was born in China about 50 years ago in Soo Hong Village, Toyshan District, Kwangtung Province, China; and that he never became a United States citizen. He admits he petitioned on April 25, 1944, in the Superior Court of the State of California at San Francisco, Calif., to establish a record of his birth to show that he was born at San Francisco, Calif., on January 15, 1906. He further admitted that he had given sworn testimony on his own behalf in such court proceeding, claiming birth at San Francisco, Calif. on January 15, 1906, although he knew then that this was a false assertion. The court granted his petition and he was thereby enabled to procure a delayed birth registration certificate.
The United States District Court for the Northern District of California, Southern Division, ruled on January 23, 1948, in the Matter of Lee Fong Fook, that a decree of a California State court setting forth a petitioner's birth place as being at San Francisco, Calif., could not be considered as an adjudication of his United States citizenship (habeas corpus proceedings No. 27790 — G). The foregoing is mentioned although it is apparent that no present claim is made that the male appellant is a United States citizen.
The male appellant stated that he used the foregoing delayed birth registration certificate when he applied for a United States passport in 1946; that he had falsely stated the facts as to his birth date and birth place in connection with such application for a United States passport; and that he had procured a United States passport (No. 123861) which he took with him when he went to China in 1947.
When he arrived in the United States on July 28, 1947, accompanied by his wife, he sought admission as a United States citizen and presented the United States passport above mentioned. A sworn statement was taken from him on August 13, 1947, which was introduced into the record as exhibit No. 1. On October 2, 1947, he admitted that he had made false statements under oath on August 13, 1947, in claiming birth in the United States.
His wife had sought admission into the United States as the spouse of a United States citizen who had been honorably discharged from the Armed Forces of the United States during World War II. On this basis, she claimed that she was eligible for admission into the United States under the provisions of the act of December 28, 1945, as amended. Since the evidence of record indisputably shows that her husband is an alien, it is of no avail to her that he actually served honorably in the Armed Forces of the United States during World War II. This is so because he never was a citizen of the United States and therefore she never was the wife of a United States citizen veteran of World War II.
As stated above, both of these aliens are immigrants and they are subject to exclusion on the above-stated documentary grounds. What must now be determined is whether he is also subject to exclusion on the criminal ground urged by the Board of Special Inquiry. On January 26, 1948, the Board of Special Inquiry found him subject to exclusion under the provisions of section 3 of the act of February 5, 1917, on the ground that he admitted the commission of a crime involving moral turpitude prior to his entry into the United States, to wit: Perjury.
The pertinent provisions of Section 3, supra, are as follows:
SECTION 3. That the following class of aliens shall be excluded from admission into the United States * * * persons who have been convicted of or admit having committed a felony or other crime or misdemeanor involving moral turpitude.
The possible commission of perjury on three occasions has been noted; the first, in 1944 before a State Court in California when he falsely asserted under oath that he was born in the United States; the second time, in connection with his application for a United States passport in 1946 when he falsely stated under oath that he was born in this country; and third and last time, on August 13, 1947, when he made a false statement under oath before an officer of this Service in connection with his application for entry into the United States, asserting that he was born here. The Board of Special Inquiry has concluded that he admitted the commission of perjury, presumably on these three occasions. The question now presented is whether the record establishes that there has been an actual "admission" as required by statute (see footnote 2). As interpreted by the court in Howes v. Tozer, 3 F. (2d) 849 (C.C.A. 1st. 1925) such admission must be unqualified and must include an admission of the legal conclusion of having committed the offense involved.
See 30 Op. Atty. Gen. 128 (1934); Op. Sol. Labor, September 5, 1929; United States ex rel. Rosen v. Williams, 200 F. 538 (C.C.A. 2d, 1912), cert. denied 232 U.S. 722; United States ex rel. Castro v. Williams, 203 F. 155 (D.C.N.Y., 1913); In re C---- C---- L----, Board of Immigration Appeals File 56111/370 (Oct. 12, 1942).
However, nowhere in the record do we find that a definition of the offense of perjury involved was actually given to the male appellant; nor does it appear that the essential elements of the pertinent offenses were revealed or explained to him. This is a fatal defect and, therefore, the evidence of record cannot be held to establish an admission of the commission of perjury on any of these three occasions. In view of this conclusion, it is unnecessary to examine the record as to the materiality of the misstatements made or as to whether he has actually admitted the essential elements of the offense involved on any or all of these three occasions. It would be of no avail even if the evidence showed these factors were present. The criminal ground of exclusion urged by the Board of Special Inquiry against the male appellant is not deemed to be sustained by the evidence of record.
As to the first occasion, an offense before a State court was involved and a definition of perjury under the State law of California would have been in order. As to the other two occasions, the definition of perjury as it appears in 18 U.S.C. 231, would have been in order, since federal offenses were involved.
However, the possibility that he may be subject to exclusion on another or other criminal grounds must be examined. The record establishes that the husband appellant was indicted on three counts in the United States District Court for the Northern District of California, Southern Division, and on January 8, 1948, was convicted, upon his plea of guilty on the first count only, the other two counts being dismissed. The first count charged him with violation of 18 U.S.C.A. 80, that is, intent to defraud the United States by improper use of the United States passport showing him to be a citizen of the United States and to have been born at San Francisco, Calif., for the purpose of effecting entry into the United States, knowing full well that he was not born in San Francisco, Calif., and was not a citizen of the United States.
If the evidence of record sustains a ground of exclusion not urged by the Board of Special Inquiry in the course of its hearing, it may nevertheless be lodged against the applicant in appeal proceedings before the Commissioner of this Service. See United States ex rel. Jelic v. District Director of Immigration and Naturalization, Ellis Island, New York Harbor, 106 F. (2d) 14 (C.C.A. 2d, 1939); Board of Immigration Appeals' decision in Matter of P---- G---- H----, A-6761654 (Feb. 2, 1948).
The other two counts were: (1) false claim to citizenship in violation of 8 U.S.C.A. 746 (a) (18) and, (2) false statements before immigration officials in violation of 8 U.S.C.A. 152.
As stated, he was convicted upon his plea of guilty on count one. His plea of guilty before the court is deemed to be tantamount to an admission of the commission of this offense. Blumen v. Haff, 78 F. (2d) 833 (C.C.A. 9th, 1935) cert. denied 296 U.S. 644.
If this offense of which the male appellant was convicted upon his plea of guilty, be considered one which involves moral turpitude, the question of his excludability on criminal grounds will have to be determined. These grounds relate to his conviction and his admission of the commission of an offense involving moral turpitude, as specified in section 3, supra (see footnote 2).
The record establishes that the offense of which he was convicted upon his plea of guilty, as stated above, involved an intent (attempt) to defraud the United States. Like the offense of perjury, it involves an intent to deceive or to defraud. The test in this country as to whether an offense involves moral turpitude is whether the act is accompanied by a vicious or corrupt mind, that is to say, an intent which is evil. Mylius v. Uhl, 203 F. 152, affirmed 210 F. 860. This criterion has been adopted by the courts: Mongiovi v. Karnuth, 3 F. (2d) 825; Meyer v. Day, 54 F. (2d) 336; Schladzien v. Warden, 45 F. (2d) 204.
Since this evil intent or mens rea is an essential element necessary to be proved in a conviction for the foregoing offense it may be concluded that the offense of which he was convicted on January 8, 1948, upon his plea of guilty was one which involves moral turpitude.
However, before it may be concluded that he is subject to exclusion on the foregoing criminal grounds; a further examination of the record is necessary. For, on February 2, 1948, the sentencing court involved in the above conviction made a recommendation against deportation on the basis of said conviction (A-6771626). This raises the question as to the legal effect of such court recommendation against deportation, in these exclusion proceedings, insofar as the above-mentioned criminal grounds of exclusion are concerned. Specifically, the issue of law now to be determined is whether the legal effect of such court recommendation is to bar his exclusion and deportation on the criminal grounds specified.
The recommendation against deportation of the male appellant in these exclusion proceedings was made as the result of a petition for such relief, under the provisions of section 19 (a) of the Immigration Act of February 5, 1917, as amended (8 U.S.C. 155 (a)). The pertinent proviso to section 19 (a) supra, containing the "recommendation clause" is quoted herewith:
* * * Provided further, That the provision of this section respecting the deportation of aliens convicted of a crime involving moral turpitude shall not apply to one who has been pardoned, nor shall such deportation be made or directed if the court, or judge thereof, sentencing such alien for such crime shall, at the time of imposing judgment or passing sentence or within 30 days thereafter, due notice having first been given to the representatives of the State, make a recommendation to the Attorney General that such alien shall not be deported in pursuance of this act; nor shall any alien convicted as aforesaid be deported until after the termination of his imprisonment: * * *
Were this alien to be expelled from the United States in expulsion proceedings and caused to be deported to a foreign country under warrant, the legal effect of such a recommendation against deportation by the sentencing court in the United States would be to "immunize" this alien against deportation for the offense involved.
The legal effect of such a recommendation is not altered because the alien is of one class of "deportables" rather than another. In the Rasmussen case (see footnote 7) it was specifically decided by the Circuit Court in the Third Circuit that the "recommendation clause" reaches the class of those deportable (expellable) because excludable at time of last entry. This view has been followed by the Board of Immigration Appeals in its most recent decision on this point ( Matter of S----, A-2535405, Apr. 28, 1948). Were the alien to leave the United States after such recommendation had been made by the sentencing court in the United States and were this alien then to effect reentry in one way or another, this "immunity" from expulsion (deportation) would continue and persist. It is obvious that such immunity does not depend on whether this alien remained in the United States after such recommendation was made.
The dicta in the case of United States ex rel. Santarelli v. Hughes ( 116 F. (2d) 613, 615), that a "prior to entry class of deportables" is excluded from the recommendation clause of section 19 (a), supra, was expressly overruled in the same court in the Rasmussen case, supra, 1947. The view taken in the Rasmussen case is contrary to that expressed by the Solicitor of the Department of Labor in the case of J---- V---- F---- (No. 4-3456, 55831/482, Sept. 18, 1933). The F----- case involved deportation proceedings under warrant, against an alien in the United States and the Solicitor has the same view as to the "prior to entry class of deportables" as was mentioned in the dicta in the Santarelli case above.
Section 19 (a), supra, refers to a class of deportables who were excludable at time of entry. It also refers to a class of deportables who admit the commission of or who were convicted of a serious crime committed prior to entry. The view of what was to be considered as an entry was finally clarified in 1933 in the case of Volpe v. Smith ( 289 U.S. 422). Thereafter situations arose similar to that considered in the Rasmussen case. In that case, the alien had effected "entry" (other than the first) into the United States, after which he was made the subject of expulsion proceedings, on the basis of a conviction, upon a plea of guilty, of an offense involving moral turpitude, committed before the last "entry". In the S---- case, supra, where the ground of deportation related to an admission of the commission of a serious offense prior to entry, the Board of Immigration Appeals held that the decision in the Rasmussen case was controlling.
The query then arises whether such an alien who did go out after such recommendation was made would be held excludable when he sought reentry, in exclusion proceedings, on criminal grounds arising in connection with the very offense for which he is granted immunity by the sentencing court in the United States insofar as expulsion proceedings were concerned. To hold this alien to be so excludable would in some measure be inconsistent with the court's recommendation, whose apparent objective was to permit him to stay here. We are not dealing with foreign pardons or favorable recommendations by sentencing courts in criminal proceedings abroad. It has been recognized that the important feature is that a United States court has recommended against deportation and it is a secondary matter as to the actual time the offense was committed, whether before or after an "entry", such as is contemplated under Volpe v. Smith, supra. The offense was committed in the United States and the recommendation to immunize the offending alien from being expelled from the United States was made by a court in the United States.
See Senate report No. 352, Calendar No. 320, 64th Cong., 1st sess. (p. 15). It was intended to permit a court in the United States sentencing an alien to recommend against his being expelled. This report indicates that Congress intended to incorporate to the fullest extent practicable all those classes of aliens deemed subject to deportation, after having entered the country. The Senate report noted that there were included new classes of "excludables" which were added to section 3 of that act (see p. 14 of this report). As stated by the court in the Rasmussen case, the provisions of section 19, supra, were intended to provide means for the deportation of aliens who had obtained entry despite the provisions of section 3 of that act. This is some indication that the legislative pattern was to make complementary to a considerable extent the exclusion and expulsion provisions and that the common objective was to have certain aliens kept "out" or removed "out" of the United States.
Thus, whether an alien be inside or outside the United States may determine the mechanics for the enforcement of the immigration laws so as to rid the United States of certain classes of aliens and to keep them out. The use of mechanics of enforcement incident to exclusion or expulsion depends merely on whether the alien is out of the United States or in the United States, at the time the immigration laws are to be applied and enforced. They are complementary technics. As stated above, both processes seek a common objective. The processes involved should not make a difference on the issue presented in this case inasmuch as we are not concerned with whether the offense was committed before "entry" or whether a conviction was had before "entry". Rather, the essential point must be discerned to be that the alien involved had committed the offense in the United States and a court in the United States had recommended against expelling him from the United States because of such offense. As a matter of fact, he is physically in the United States serving his sentence of 18 months.
In this case, the alien has been excluded and within the contemplation of the immigration law is still seeking admission into the United States. Kaplan v. Todd, 267 U.S. 228 (1925). Although section 18 calls for prompt enforcement in exclusion proceedings, the alien is not deemed to be admitted to the United States after inspection, but merely paroled while under exclusion proceedings in connection with his trial in the United States. ( Kaplan v. Todd, supra; United States ex rel. Pantano v. Corsi, 65 F. (2d) 322 (C.C.A. 2d, 1933).
The pattern established by Congress for the enforcement of immigration laws indicates that Congress intended that no alien be permitted to remain in the United States who was of a class expellable under the law. Indeed, when the excluding provisions of the immigration laws contained no express provision excluding an alien, nevertheless such alien was deemed excludable because he was expellable on his being admitted into the United States.
Certainly, no Congressional intent can be discerned that greater leniency was to be shown "expellable" persons than "excludable" persons, particularly where the same offense was involved and the sentencing court in the United States had made a recommendation against his expulsion by reason of such offense. It is not inconsistent with the legislative pattern for the enforcement of the immigration laws to hold, that the "relief" from expulsion granted under the recommendation clause should be extended to "immunize" the same alien for the same offense when he seeks to reenter the United States, where such alien committed his offense in the United States and it is a court in the United States which has made a recommendation against his deportation (expulsion). Essentially, it does not matter whether he is deported under exclusion proceedings or under warrant proceedings.
To conclude otherwise would result in several peculiar and anomalous situations which it would be absurd to believe were within the contemplation of Congress when the immigration laws involved were enacted. Thus, an alien after receiving the benefit of the recommendation clause might go abroad and reenter the United States without inspection, in one way or another or without revealing his criminal record. When found in the United States he would be immune from being expelled on the criminal grounds involved. The same alien, if made a subject of exclusion proceedings at the time he sought to reenter the United States, would be kept out of the United States although a court in the United States had made it possible for him to remain here. In such a situation a premium would be placed upon a fraudulent or surreptitious entry in circumvention of the immigration laws. In addition, the beneficiary of a favorable recommendation against expulsion by a United States court would have to remain in the United States while an alien, if he did not wish to be excluded when he sought readmission to the United States in a proper manner. It is, therefore, concluded that this alien is not excludable as one who admits the commission of or who was convicted of a crime involving moral turpitude prior to "entry," in view of the timely recommendation against deportation made by the sentencing court which convicted him of this offense.
Findings of Fact: Upon the basis of the evidence presented, it is found:
(1) That the husband and wife appellants are aliens, natives, and citizens of China, who have never been admitted into the United States for permanent residence heretofore;
(2) That the female appellant is not the wife of a United States citizen, but is the wife of an alien, who served honorably in the Armed Forces of the United States during World War II;
(3) That the appellants seek admission into the United States for permanent residence, after arrival from China on July 28, 1947, at San Francisco, Calif., as passengers ex S.S. Marine Adder.
(4) That the appellants are not in possession of immigration visas;
(5) That the appellants did not present passports or other official documents in the nature of passports issued by the government of the country to which they owe allegiance or other travel documents showing their origin and identity;
(6) That the husband appellant was convicted on January 8, 1948, upon his plea of guilty in the United States District Court for the Northern District of California, Southern Division, for violation of 18 U.S.C.A. 80, as follows: Intent to defraud the United States by the improper use of a United passport showing him to be a citizen of the United States and to have been born in San Francisco, Calif., for the purpose of effecting entry into the United States, knowing full well that he was not born at San Francisco, Calif., and was not a citizen of the United States; that he was sentenced to eighteen months' imprisonment and is now serving such sentence of imprisonment; that on February 2, 1948, the above sentencing court recommended against deportation, on the basis of such conviction;
(7) That the husband appellant has admitted that he knowingly made false statements under oath in regard to his being born at San Francisco, Calif., in 1906, when in truth and in fact he was born in China years before that date, but he has not admitted the commission of perjury, on the following occasions, to wit:
(a) Before the Superior Court of the State of California (San Francisco) in 1944 when he petitioned the Court to have a birth record created to show his birth at San Francisco, Calif., on January 15, 1906;
(b) In 1946 when he executed an application for a United States passport; and
(c) On August 13, 1947, when a sworn statement was taken from him by an officer of this Service in connection with his desire to enter the United States as a United States citizen;
(8) That the husband appellant was physically in the United States from 1933 until February 1947, when he departed to China.Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That the female appellant is not eligible for admission into the United States under the provisions of the act of December 28, 1945, as amended;
(2) That under section 13 (a) (1) of the Immigration Act of 1924, the appellants are subject to exclusion as immigrants, in that, at the time of entry, they were not in possession of valid immigration visas and not exempted from the presentation thereof by said act or regulations made thereunder;
(3) That under Executive Order No. 8766 the appellants are subject to exclusion, in that, they did not present unexpired passports or other official documents in the nature of passports issued by the government of the country to which they owe allegiance or other travel document showing their origin and identity, as required by said Executive order;
(4) That under section 3 of the act of February 5, 1917, the husband appellant is not subject to exclusion on the ground that he admits the commission of and was convicted of a felony or other crime or misdemeanor involving moral turpitude, to wit: intent to defraud the United States by improper use of a United States passport showing him to have been a citizen of the United States and born in San Francisco, Calif., for the purpose of effecting entry into the United States, knowing full well that he was not born at San Francisco, Calif., and was not a citizen of the United States, in violation of 18 U.S.C.A. 80;
(5) That under section 3 of the act of February 5, 1917, the husband appellant is not subject to exclusion on the ground that he admits the commission of a felony or other crime or misdemeanor involving moral turpitude, to wit: Perjury
(a) Before a California State court in 1944;
(b) In executing an application for a United States passport in 1946; and
(c) In a sworn statement before an officer of this Service on August 13, 1947, in connection with his application for entry into the United States as a United States citizen.Other Factors: The male appellant was given a preliminary examination by primary inspection upon arrival; then a sworn statement was taken from him on August 13, 1947. On October 2, 1947, he made full avowal and acknowledged that he had made misrepresentations as to his place of birth and his United States citizenship. This ended his preliminary examination. He was held for a hearing before a Board of Special Inquiry because it appeared from such primary inspection that there was doubt as to whether he was eligible for admission into the United States. Before the Board of Special Inquiry hearing was conducted, he was brought before the local United States Attorney's Office, indicted, and then convicted as stated above. His conviction occurred on January 8, 1948, and he was thereafter sentenced to 18 months' imprisonment. While he was detained at the San Francisco County jail, en route to McNeil Island Penitentiary, the hearing before the Board of Special Inquiry was conducted and concluded. This hearing took place on January 26, 1948. As a result, the Board of Special Inquiry ordered these aliens excluded as stated above. They appealed from this decision and while the appeal was pending, the sentencing court made its recommendation against deportation in the case of the male appellant. This recommendation was made on February 3, 1948. Though the male appellant was sentenced for a period of 18 months, it is not clear when he may be actually released. He is still in confinement at McNeil Island as a result of his conviction on January 8, 1948.
Since the husband appellant has been convicted and sentenced for misusing his United States passport with intent to defraud when he sought admission into the United States, it is not believed desirable to reopen proceedings merely to introduce further evidence regarding his possible admission of the commission of perjury on the separate occasions noted heretofore. Apparently, the Federal attorney's office was fully cognizant of all the factors in this case. Yet the husband appellant was not charged with a single perjury count. In fact, two counts of the indictment were dismissed as stated heretofore. It is to be noted that all of the misstatements were about his place of birth.
It has been held that an alien is not excludable on a ground of an independent admission of the commission of a crime if the criminal proceedings have been dismissed as a result of adjudication of the cause, as distinguished from dismissal on such purely technical grounds as the running of the statute of limitations or acquittal on the basis of testimony judicially found to have been perjured (Board of Immigration Appeals, 56120/790 (July 3, 1943); memorandum, chairman, Board of Immigration Appeals, Nov. 21, 1944, Attorney General, 56064/847 (Jan. 14, 1942)). Thus, when several indictments were returned against an alien who was prosecuted under only one of them and convicted, and the court, with full knowledge of the facts, then dismissed others on the ground that sufficient punishment had been endured, an admission by the alien could not be held against him.
This male appellant has lived here for about 14 years. For a year and 3 months he served honorably in the Armed Forces of the United States. He was honorably discharged on September 8, 1943. His misconduct appears to have been confined to misclaiming United States citizenship by birth here. He is paying the penalty for this misdeed now by enduring the punishment meted out to him. Still, the sentencing court recommended against his deportation. He has been found subject to exclusion on documentary grounds only.
Private bills looking to the appellants' relief were introduced on March 22, 1948, to permit them to remain here (H.R. 5944, S. 2345, 80th Cong., 2d Sess.). These bills were referred to the respective judiciary committees. No information has been received that adverse action was contemplated or taken by either of these committees before this Congress adjourned. Were this the situation in deportation proceedings, a stay of deportation until April 1949 would have been indicated.
Legislation was approved on June 1, 1948, which benefits alien veterans of World War II. This law would permit the male appellant, upon his release from imprisonment, to petition for naturalization under a brief and speedy procedure, because of his United States military service.
His deportation under the excluding order awaits his release from imprisonment. Her deportation under the excluding order should be deferred until his release from imprisonment, for the following reasons. Though never here before, she is his wife. He testified she was innocent of any misdeed on his part. She was held in detention awaiting the outcome in his case since July 28, 1947. Her parole was authorized (under $1,000 bond, pending further instructions) on June 21, 1948. This was done primarily because of her husband's honorable United States military service. Aside from a bill for private relief, her adjustment of her immigration status is bound up with the adjustment of his immigration status or citizenship status. Accordingly, it will be recommended that execution of the excluding order in both cases be deferred until he is released from imprisonment, her parole to be continued during such deferral period. In the event he is released from imprisonment prior to April 1949, it will be recommended that action be deferred until April 1949.
Recommendation: It is recommended that the excluding decision of the Board of Special Inquiry, as to both appellants, be affirmed solely upon the following grounds:
That under the Immigration Act of 1924, the appellants are immigrants not in possession of valid immigration visas and not exempted from the presentation thereof by said act or regulations made thereunder;
That under Executive Order 8766, the appellants did not present unexpired passports or official documents in the nature of passports issued by the government of the country to which they owe allegiance or other travel documents showing their origin and identity, as required by said Executive order.
It is further recommended that execution of the excluding order be deferred until the male appellant is released from imprisonment, or until April 1949, whichever occurs later. It is further recommended in the case of the female appellant that her parole be continued during the period for which execution of the excluding order is being deferred, under a delivery bond in the sum of $1,000.
So ordered.