Decided by Board January 25, 1945. Approved by Attorney General May 26, 1945.
Racial eligibility to citizenship — Afghan — Revised Statutes 2169 — Admissibility under sections 13 (c) and 28 (c) of the Immigration Act of 1924 — Eligibility for suspension of deportation — Section 19 (c) of the act of February 5, 1917, as amended.
An Afghan is a "white person" within the meaning of section 2169 of the Revised Statutes of the United States and was not inadmissible to the United States at the time of his last entry in 1926, nor is he ineligible for suspension of deportation, as one racially ineligible to citizenship.
Warrant: Act of 1924 — Immigrant without an immigration visa.
Lodged: Act of 1924 — Ineligible to citizenship.
BEFORE THE BOARD
Discussion: After a hearing, the Presiding Inspector found the respondent deportable on the warrant and lodged charges and recommended his deportation. The Central Office of the Immigration and Naturalization Service recommends that he be permitted to depart voluntarily at his own expense.
The respondent is a 43-year-old native and citizen of Afghanistan, of the Afghan race, who last entered the United States at Portland, Oreg., on June 11, 1926, as a deserting seaman. He then intended to reside permanently in this country and was not in possession of an immigration visa. He is clearly subject to deportation on the charge contained in the warrant of arrest.
The alien is married to a native-born American citizen and is the father of three native-born minor children, all of whom are dependent upon him for support. He has never been in trouble with the police authorities of this or any other country, and has always conducted himself as a law-abiding person. Whether he is to be permitted under existing law to adjust his immigration status and to remain in this country with his American family depends upon the validity of the charge lodged during the hearing. If it is sustained and the respondent is found to be racially ineligible to naturalization, he will be unable to take advantage of the existing provisions for discretionary relief either by way of suspension of deportation under section 19 (c) (2) of the act of February 5, 1917, as amended, or by way of voluntary departure and pre-examination under section 19 (c) (1) of said act and part 142, title 8, Code of Federal Regulations. He must, in that event, either depart voluntarily at his own expense or be deported with no right, under the present law, to return for permanent residence and to rejoin his family.
Section 13 (c) of the Immigration Act of 1924, under which the respondent's deportation is sought, provides, insofar as here pertinent, that "no alien ineligible to citizenship shall be admitted to the United States." The term "ineligible to citizenship" is defined in the relevant portion of section 28 (c) of the Immigration Act of 1924 as "an individual who is debarred from becoming a citizen of the United States under section 2169 of the Revised Statutes." This section reads:
While this section was not expressly repealed by the Nationality Act of 1940, it has been supplemented and modified by section 303 of said act, as amended, which reads in part: "The right to become a naturalized citizen under the provisions of this act shall extend only to white persons, persons of African nativity or descent, descendants of races indigenous to the Western Hemisphere * * *."
The provisions of this title [Naturalization] shall apply to aliens being free white persons, and to aliens of African nativity and to persons of African descent.
The word "free" was originally used by Congress in 1790 ( 1 Stat. 103) because of the then existing practice of slavery and in recognition of the fact that some white persons were slaves. Today, however, the term has no practical significance and is to be disregarded ( Ozawa vs. United States, 260 U.S. 178 (1922)).
The issue before us is whether an Afghan is a "white person" within the meaning of section 2169 of the Revised Statutes. The Supreme Court has on two occasions considered the meaning of this term, the first time in connection with a person of the Japanese race ( Ozawa vs. United States, 260 U.S. 178 (1922), and the other occasion in a case involving a Hindu ( United States vs. Thind, 261 U.S. 206 (1923)). The principles enounced in those cases must, insofar as applicable, be employed by us in determining the issue presented here. In the Ozawa case the Court rejected the test of the individual's skin color and held that the words imported a racial test and "were meant to indicate only a person of what is popularly known as the Caucasian race." Since Japanese were clearly not of that race, the alien involved was held not to be a white person. The Court in its opinion was careful to point out that this test did not necessarily dispose of borderline cases, saying that those cases should be determined by what is called "the gradual processes of judicial inclusion and exclusion."
The Thind case involved a high-caste Hindu who from the ethnological and scientific point of view was admittedly of the Caucasian race. The statutory words, "white persons," however, were found to be "words of common speech, to be interpreted in accordance with the understanding of the common man, synonymous with the word `Caucasian' only as that word is popularly understood." In finding that a Hindu was not a Caucasian as so understood, the Court was apparently influenced by the fact that in its opinion Hindus could not merge into the mass of our population and lose their physical group characteristics so as to render them indistinguishable from the various groups of persons in this country commonly recognized as white.
In the course of its opinion in the Thind case, the Court hinted at the possibility that no Asiatics were eligible to citizenship, but again concluded, as it did in the Ozawa case, that the answer to that question would best be left to the consideration of particular cases as they might from time to time arise. One of these cases arose in Wadia vs. United States ( 101 F. (2d) 7 (C.C.A. 2d, 1939)), where Judge A.N. Hand, in holding, upon the authority of the Thind case, that a Parsee, a member of a race which had migrated from Persia and had lived in India for 1,200 years, was not a "white person" said the following with respect to the eligibility of Asiatics for naturalization:
Accordingly, it is not altogether safe to generalize, yet it may fairly be said that members of races inhabiting Europe or living along the shores of the Mediterranean are ordinarily to be classed as white persons in construing the naturalization laws. The same thing may be true of some Asiatics whose long contiguity to European nations and assimilation with their culture has caused them to be thought as of the same general characteristics. [Italics supplied.]
Thus, to us it is clear that there are some Asiatics who are to be deemed racially eligible for naturalization.
Cf. In re Shaikhaly (Nat. Case No. 119332 (S.D. Cal. C.D., Dec. 20, 1944)), where the Court, in finding an Arabian eligible for naturalization, cast some doubt on the authoritativenes of the Thind case in view of the action of Congress in removing the racial barriers with respect to the eligibility of Chinese to naturalization.
Turning now to the immediate issue before us, we find no reported judicial decision with respect to the racial eligibility of Afghans for naturalization except for In re Feroz Din (27 F. (2d) 568 (N.D. Cal., 1928)). In that case it was held that such a person was racially ineligible for naturalization. The opinion was very brief and it is quoted in its entirety:
Other unreported cases to the same effect are listed in Hackworth, Digest of International Law, vol. III, pp. 44, 45.
This applicant for citizenship is a typical Afghan and a native of Afghanistan. He is readily distinguishable from "white" persons of this country, and approximates to Hindus. The conclusion is that he is not a white person, nor of African nativity or descent, to whom naturalization in general is limited by section 359, title 8, U.S.C. (8 U.S.C.A. 359).
Accordingly his petition is denied. This action is required by the principle of United States v. Thind ( 261 U.S. 204, 43 S. Ct. 338, 67 L. Ed. 616), and much of the comment in that case is applicable to this. What ethnologists, anthropologists, and other so-called scientists may speculate and conjecture in respect to races and origins may interest the curious and convince the credulous, but is of no moment in arriving at the intent of Congress in the statute aforesaid.
We believe, however, that the principles of the Thind case do not require such action and, on the contrary, under those principles an Afghan is racially eligible to citizenship. The Feroz Din decision, in our judgment, should not be deemed controlling.
From an ethnological and scientific point of view, Afghans are unanimously considered to be of the Caucasian race and white persons. Whether they are such within the understanding of common man is a more difficult question. According to the alien registration figures, there are less than 200 Afghans now living in the United States. Because, relatively speaking, there are only a handful in this country, there is no defined popular or common understanding of the racial characteristics of an Afghan. Therefore, to apply the test laid down in the Thind case, we must of necessity resort to those who have studied and written about Afghans in order to obtain such information from them as will enable us to ascertain whether the ordinary unscientific man would consider an Afghan to be a white person.
See Races of Europe, C.S. Coon (1939); The Peoples of Asia, L.H.D. Buxton (1925); Races of Europe, W.Z. Ripley (1889); The Races of Man, A.C. Haddon (1925); Dictionary of Races or Peoples, 61st Cong. 3d sess., S. Doc. No. 602, vol. 9.
Afghanistan is located on the continent of Asia. It is bounded on the west by Iran (Persia), on the north by the Union of Soviet Socialist Republics, and on the south and east by British India. The origin of the inhabitants of this country is veiled in antiquity. The Afghans themselves claim they are of Jewish origin and this claim has some authoriative support. Most authorities, however, believe that this claim is an afterthought which is based upon the occasional appearance among them of some with Jewish traits. While Afghans, in common with all groups of peoples, do not constitute a pure race, some Afghans having some Mongoloid and Indian strains, modern anthropologists place them in the Mediterranean racial zone which stretches from Spain across the Strait of Gibraltar to Morocco and thence eastward as far as India. This zone apparently does not include India. They are considered a European race and so-called Nordics, Armenoids and Alpines, all European types, are representative of the people living in Afghanistan. It is significant to note that the authorities always group the Afghans with the Iranians (Persians). Their characteristics are so alike that it has been said, "The Afghans * * * are in most respects as similar to the Persians as they are to each other." The official language of the Afghans is Persian, an Aryan language of Nordic origin.
Coon, op. cit., pp. 401-418; Buxton, op. cit., p. 110; Ripley, op. cit.
Buxton, op. cit., p. 110; Ripley, op. cit., p. 450; The New International Encyclopedia, op. cit., p. 202.
Coon, op. cit., p. 418; Buxton, op. cit., p. 85; Ripley, op. cit., p. 443.
Coon, op. cit., p. 419.
Encyclopedia Brittanica, op. cit., p. 286.
Encyclopedia Americana, op. cit., p. 208; Coon, op. cit., p. 416.
Coon, op. cit., p. 416.
Physically, Afghans have been described in the following language:
As a race the Afghans are exceedingly attractive to the Western traveler. They are handsome and athletic. They have fair complexions with aquiline features and flowing beards. The women are exceedingly fair and handsome, and more intellectual than the average woman of the East. [Italics supplied.]
Another authority has said:
Afghans have fine figures, aquiline profiles and fair complexions. [Italics supplied.]
Yet another authority has written:
The Afghans * * *, like the Persians, are usually brunette, and at the same time show a persistent minority of blondism, which in this case reflects a Nordic admixture * * *. They possess, in common with the Arabian Mediterranean group, a sharpness and definition in features which stands in contrast to the coarser lineage of the average Mesopotamian countenance.
The foregoing constitutes the results of the scientist's research. From his point of view an Afghan is obviously a white person. The question is whether the ordinary unscientific man would come to the same conclusion. It is our conviction that he would. Physically, we believe that in the eyes of the common man an Afghan looks like a white person. Further, his historical origins lie in the continent of Europe. He is not associated with those races in Asia, like the Japanese, the Chinese and the Indian, which have been found not to be white. Because of his appearance, we feel that he would be readily assimilable into the American population.
Moreover, all the evidence establishes that an Afghan is the exact prototype of the Persian. Persians, it is significant to note, have always been held administratively to be eligible for naturalization. While there are no definitive judicial decisions with respect to the racial eligibility of Persians to naturalization, the Second Circuit Court of Appeals in Wadia v. United States, supra, implied that they were. If the Persians are deemed to be "white persons" within the scope of section 2169 of the Revised Statutes, there is no valid reason why their prototype should not be similarly considered. Closely related races, such as the Armenian and the Arabian, have been found to be "white persons."
For Armenians, see United States v. Cartozian ( 6 Fed. (2d) 919, (D. Ore. 1925)); In re Halladjian (174 Fed. 834 (D. Mass. 1909)); for Arabians, see In re Shaikhaly, supra; Matter of S----, 56071/165 (Oct. 18, 1941); contra In re Hassan ( 48 F. Supp. 843 (D. Mich. 1942)).
It is for those reasons that we find the respondent not of a race ineligible for naturalization. Accordingly, the lodged charge cannot be sustained.
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the respondent is an alien, a native and citizen of Afghanistan;
(2) That the respondent last entered the United States at Portland, Ore., on June 11, 1926;
(3) That the respondent then intended to reside permanently in the United States;
(4) That the respondent was not then in possession of an immigration visa;
(5) That the respondent is of the Afghan race.
Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under sections 13 and 14 of the Immigration Act of 1924, the respondent is subject to deportation, in that, at the time of entry, he was not in possession of an unexpired immigration visa;
(2) That under section 13 and 14 of the Immigration Act of 1924, the respondent is not subject to deportation on the ground that he is an alien ineligible to citizenship and is not exempted from paragraph (c), section 13 thereof;
(3) That under section 20 of the Immigration Act of 1917, as amended, the respondent is deportable to Afghanistan at Government expense.Suspension of Deportation — Factors: The alien has formally applied for suspension of deportation under section 19 (c) (2) of the Immigration Act of 1917, as amended.
The alien was married on August 3, 1929, to a native-born American citizen and they are the parents of three native-born American citizen children. He is employed as a boiler operator by a steel company and earns $1.15 per hour. At the time of the hearing, he owned 18 $25 war bonds, had $300 worth of furniture, and an automobile valued at $200. Since his family is entirely dependent upon him for support it is concluded that his deportation would result in serious economic detriment to his citizen wife and citizen minor children.
The Federal Bureau of Investigation has no criminal record of the alien. An independent character investigation conducted by the Immigration and Naturalization Service satisfactorily establishes that the alien has been a person of good moral character for the past five years. This is further supported by sworn statements of persons well acquainted with the alien.
The alien is a person of the white race and is not ineligible to naturalization in the United States, nor is the alien subject to deportation under any provision of law mentioned in section 19 (d) of the Immigration Act of 1917, as amended.
Suspension of Deportation — Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the alien is a person of the white race and is eligible for naturalization in the United States;
(2) That the alien has been of good moral character for the preceding 5 years;
(3) That deportation of the alien would result in serious economic detriment to his citizen wife and citizen minor children;
(4) That after full inquiry, no facts have been developed which would indicate that the alien is deportable under any of the provisions of law specified in section 19 (d) of the Immigration Act of 1917, as amended.Suspension of Deportation — Conclusion of Law: Upon the basis of the foregoing findings of fact, it is concluded:
That the alien is eligible for suspension of deportation under the provisions of section 19 (c) (2) of the Immigration Act of 1917, as amended.
Order: It is ordered that deportation of the alien be suspended under the provisions of section 19 (c) (2) of the Immigration Act of 1917, as amended.
As the case involves suspension of deportation of an alien pursuant to the provisions of section 19 (c) (2) of the Immigration Act of 1917, as amended, and as a question of difficulty is involved, in accordance with the provisions of title 8, section 90.12, Code of Federal Regulations, the Board refers the case to the Attorney General for review of its decision.
The decision and order of the Board of Immigration Appeals are hereby approved.