56278/406
Decided by Board January 10, 1951
Seventh proviso relief — Advance exercise thereof — Section 3 of the Immigration Act of February 5, 1917 — Power to admit alien notwithstanding a conviction for an offense — Discretion — Need to determine whether offense involves moral turpitude.
In connection with an advance application for admission under the 7th proviso to section 3 of Immigration Act of February 5, 1917, the question of whether the offense to be waived involves moral turpitude (theft in Italy in 1907, in this case) is not passed upon; but such application is approached on the premise that the alien has been convicted of an offense involving moral turpitude. The issue to be resolved is whether there is power to grant the relief and if the alien can meet the requirements of this proviison, it is then a question of discretion as to whether admission ought to be authorized.
BEFORE THE BOARD
Discussion: This case is before us on an appeal from the action of the Assistant Commissioner denying an application for admission under the provisions of the 7th proviso of section 3 of the act of 1917.
The alien in question is 63 years of age, an Italian. He lived in this country from about 1913 or 1914, returned to Italy in 1924, and was in the United States again from 1925 until September 1927. He was sentenced in Italy for a period of three months and 10 days because of a theft committed in 1907. Advance application for the alien's admission under the 7th proviso of section 3 has been made by his son. This application was denied by the Assistant Commissioner because the evidence failed to show that the alien had retained domicile in the United States after his return to Italy in 1927.
In an application for advance exercise of the 7th proviso, we are not at liberty to go into the question of whether the offense to be waived by the 7th proviso is one which involves moral turpitude. That matter primarily is to be decided by the American consul before whom the alien may apply for an immigration visa. We must approach the present application on the premise that the alien has been convicted of an offense involving moral turpitude. Hence, we do not pass on the issue of whether the conviction in 1907 was for a crime involving moral turpitude. The issue then is whether there is power to admit the alien, notwithstanding such a conviction, under the 7th proviso of section 3 of the act of 1917, which provides:
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.
If the alien can meet the requirements of this provision, it is then a question of discretion as to whether admission ought to be authorized.
As we have said, the Assistant Commissioner denies relief on the ground that the alien is not technically eligible for consideration under the 7th proviso because he is not returning to a United States domicile. The Assistant Commissioner finds that the alien did have a domicile in the United States up until the time of his departure in 1927, but that domicile has not been retained by him. First, we start on the premise that there must be substantial evidence to establish that an absence of 23 years was a temporary visit abroad. We find it unnecessary to discuss in detail all the facts in this case, which have been quite adequately set forth by the Assistant Commissioner in his opinion. We would like only to point out that the alien is said to have gone to Italy for his health in 1927, and that he regained his health about 1929 or 1930. There is nothing in the way of tangible evidence presented indicating an effort on the part of the alien or his family for the alien's return to the United States until 1936, when a visa petition for him was filed by a daughter and was approved.
It is alleged that money was left by the alien when he left the United States, for his wife and family, who remained here, to purchase real estate. This is given as an indication of the intention of the alien to come back to this country. Of course, this is not at all conclusive on the issue, since if the family were to remain here the alien could well have felt an obligation to leave what money he could with them to aid them financially.
It must be remembered it is not what the family here intended as to the alien's return, but what he himself desired that is important insofar as his retention of domicile goes. On this point we have a report from the American consul general at Palermo dated August 18, 1949, which says that the alien stated at the consulate general that he does not remember whether it was his intention to return to the United States when he went to Italy in 1927, and that from 1927 to 1947 he had never attempted to return to the United States. This statement very effectively precludes a finding that the alien retained his domicile here during the many years he has been living in Italy.
Order: It is ordered that the appeal be dismissed.