A-1273152
Decided by Board October 20, 1949 Approved by Attorney General October 28, 1949
Seventh proviso relief — Section 3 of the act of 1917 — Discretion — Factors deemed material in criminal cases.
1. An alien may be granted discretionary relief under the seventh proviso to section 3 of the act of 1917 where criminal grounds are involved, if his reformation for the last 19 years is established; the criminal conduct measured by the sentences imposed could not have been very serious; he has a citizen wife whom he is supporting; he has resided continuously in the United States since he was a 2-year-old baby; and deportation in his case would be banishment in fact.
2. Whether discretionary relief under the seventh proviso to section 3 of the act of 1917 is to be granted depends upon the facts of each case, and the Attorney General's directive of March 18, 1946 (as a broad statement of policy as to such relief) leaves for determination in each instance whether the case is exceptionally meritorious.
3. In deciding in the past whether such relief should be granted in criminal cases, certain elements have been considered material in reaching a decision, such as ( a) whether there has been a genuine reformation; ( b) the family ties of the aliens in the United States; ( c) the seriousness of the crime or crimes to be waived under the seventh proviso; and ( d) the period of residence of the alien in the United States.
CHARGES:
Warrant: Act of 1917 — Convicted of crime prior to entry, to wit: Larceny from a store in the daytime.
Lodged: Act of 1917 — Convicted of crime prior to entry, to wit: Larceny by conversion, contributing to the delinquency of a minor, and larceny of property.
BEFORE THE BOARD
Discussion: This case is now before us on motion of the Commissioner asking that we reconsider our order of August 1, 1949, where we invoked the provisions of the seventh proviso and terminated proceedings, and instead, the motion asks, that we order the alien's deportation. If we do not agree, we are asked in the alternative to certify the case to the Attorney General for his review of our action.
The case is concerned with an Italian alien born January 8, 1903, who was brought to this country in 1905 as a child of 2 years and who has lived here continuously since then. His longest absence from the United States was for a matter of 3 days in Canada in 1923.
The present order of deportation is based on the following convictions:
On November 20, 1924, for the crime of larceny by conversion, the sum involved being $22 — Sentence was suspended.
On August 7, 1925, for the crime of contributing to the delinquency of a minor (sexual intercourse with a 17-year-old girl). For this offense, the alien was fined $50 and cost of $10, or sentenced to serve 30 days in jail.
On December 20, 1930, for the crime of larceny of property valued at $49, for which the alien was sentenced to 30 days in jail.
Originally this proceeding was also based on a conviction on November 7, 1927, for the crime of larceny from a store in the daytime. For this offense he was sentenced to imprisonment for a term of from 1 to 15 years. Clearly, of all the convictions, this was the most serious. On November 19, 1947, the 1927 conviction was vacated and set aside and a new trial granted. The prosecuting attorney moved dismissal of the action. The court thereupon dismissed the action. Hence, the 1927 conviction has been set aside and is no longer a basis for the present deportation proceeding.
Since sentences imposed on the three crimes enumerated above do not amount to 1 year or more, the respondent became subject to deportation only because subsequent to the convictions he departed from the United States for an afternoon picnic in Bob — Lo Island in Canada, reentering the United States the same afternoon, August 16, 1941. This made applicable to his case that part of the immigration statute which provides for the deportation of any alien who has been convicted of or admits having committed a felony or other crime or misdemeanor involving moral turpitude prior to entering the United States. The seventh proviso of section 3 of the Immigration Act of 1917 grants to the Attorney General authority to permit the alien to remain in the United States notwithstanding this ground of deportation. The seventh proviso reads as follows:
That aliens returning after a temporary absence to an unrelinquished United States domicile of seven consecutive years may be admitted in the discretion of the Attorney General, and under such conditions as he may prescribe.
The fact that this is a proceeding to deport the alien from the United States rather than an application on his part for admission to the United States, does not prevent the use of the seventh proviso ( In the Matter of L----, 1 IN Dec. 1, decided by the Attorney General August 20, 1940).
The issue is whether, as a matter of discretion, the seventh proviso should be invoked in light of the facts as they exist in this case. As we have pointed out, the alien has lived here since a child of 2. The only country he knows is the United States. Realistically speaking, he is no more an alien than any native-born citizen of the United States, and in fact probably knows far less about the Italy where he was born than many Americans who have been able to travel abroad. Clearly, he is a product of this country. Judging by the sentences imposed, the crimes were not regarded as too serious by the judges who imposed sentences. The prior decision of the Commissioner listed a Federal Bureau of Investigation report of the alien's criminal record. This included all arrests even though no conviction followed. It is, however, a fact that there have been no convictions since the one in 1930. The last two arrests were in 1937 and 1938 and those only for investigation which resulted in the alien's release.
At the recent hearing directed by this Board an independent character investigation was conducted. The Immigrant Inspector who made the report finds from talking with disinterested persons, that the alien has been a person of good moral character and is loyal to the United States. The alien has a good employment record, and since his release from jail has rehabilitated himself and is now a worthy member of his community. He is living with his wife, a native-born citizen, and supporting her. There are no children of the marriage.
The only reason given in the Commissioner's motion in opposition to our action in exercising the seventh proviso is the allegation that our order is contrary to a directive of the Attorney General dated March 18, 1946, which reads as follows:
The seventh proviso should be very sparingly exercised so as to include within its purview only exceptionally meritorious cases. Except in unusual circumstances this proviso shall be limited to cases where the evidence clearly establishes that the alien has had a long period of residence in this country, has close entirely dependent family ties here and an unblemished record for at least seven consecutive years.
Many cases were considered by former Attorney General Clark under his directive of March 18, 1946, and our action is clearly in accord with the spirit of his decisions. As an example of instances where he approved the action of this Board in exercising the seventh proviso in criminal cases, the following are cited:
Matter of P----, File 5327894. The alien involved was convicted of grand larceny in September 1918, and fined $25; highway robbery in 1920 and received a suspended sentence; assault with intent to commit rape in 1921 and sentenced to New Jersey Reformatory for an indeterminate term; assault and carnal abuse of a child under 16 years of age in 1923, and sentenced to imprisonment for 4 years. He had a citizen wife and two minor citizen children, and had lived in the United States from about 1904, or since he was an infant. His conduct since 1923 was good. On January 7, 1947 the Attorney General approved the exercise of the seventh proviso. This case very closely approximates the facts in the proceeding we are now considering.
Matter of R----, File 1093853. The alien was convicted of the crime of breaking and entering and theft in Germany in 1928. On October 29, 1946, the Attorney General approved the exercise of the seventh proviso. The alien had lived here only since 1931, or since he was about 27 years of age, as contrasted with the present case where the alien's entire conscious life has been spent in this country.
Matter of K----, File 4275678. The Attorney General on September 6, 1946, approved the action of this Board in using the seventh proviso in reference to a very serious offense. The alien there was convicted of the crime of breaking and entering in the nighttime, and was sentenced to imprisonment for a term of 2½ to 15 years in the Michigan Reformatory. He had a wife and three minor children in the United States and had lived here since 1913, or since he was 11 years of age.
Matter of C----, File 5046199. The Attorney General on July 5, 1946, approved the action of this Board in using the seventh proviso in regard to the following criminal record: Conviction on September 6, 1919, in Canada for the crime of breaking and entering and theft, for which the alien received a sentence of 3 months to 1 year in the reformatory; in 1929 for the crime of simple larceny, for which the alien was placed on probation for 6 months. This man had a citizen wife and one minor citizen son and one Canadian born son, and had Army service in the late war. He had lived here since 1924 or since he was 25 years of age.
It is clear from these decisions that our action is in accord with past precedent and we fail to understand why the Immigration and Naturalization Service feels we should reconsider our action. The Commissioner's motion merely cites the Attorney General's directive of March 18, 1946, and does not elaborate on its position.
We realize, of course, the difficulty, if not impossibility, of defining any standard in discretionary matters of this character which may be applied in a stereotyped manner. Even if it could be done, we feel very definitely it would be wrong so to do. Each case must be considered on its own facts. This is basic. The Attorney General's directive of March 18, 1946, was not more than a broad — and indeed a very broad — statement of policy. It left for determination in each instance whether the case was "exceptionally meritorious." In our past determinations, as appropriate elements in arriving at a decision on this matter, we have considered as material in criminal cases (1) whether there has been a genuine reformation; (2) the family ties of the alien in the United States; (3) the seriousness of the crime or crimes to be waived under the seventh proviso; and (4) the period of residence of the alien in the United States.
In the case now before us, reformation since 1930 is clearly established. The alien has a citizen wife whom he is supporting, and the criminal conduct measured by the sentences imposed could not have been very serious. The most appealing single factor in the case is the continuous residence of this alien in the United States since he was a 2-year-old baby. Deportation in his case is in fact banishment. We see no reason for changing our decision.
To the end that there may be no misunderstanding on the part of the Immigration and Naturalization Service, we will certify the matter to the Attorney General for review of our decision.
Order: It is ordered that the motion of the Commissioner be denied, and the action of this Board in canceling proceedings under the seventh proviso of section 3 be affirmed.
In accordance with the request of the Assistant Commissioner, the Board certifies its decision and order to the Attorney General for review pursuant to title 8, Code of Federal Regulations, section 90.12.
The decision and order of the Board of Immigration Appeals dated October 20, 1949, are hereby approved.