56019/808
Decided by the Board August 29, 1940. Approved by the Attorney General.
Seventh Proviso to Section 3, Immigration Act of 1917 — Admission nunc pro tunc in deportation proceeding — Exercise of discretion.
1. When an alien is deportable under section 19 of the Immigration Act of 1917 because of conviction of a crime involving moral turpitude prior to entry and a record exists of his last entry, discretion may be exercised to admit him nunc pro tunc under the seventh proviso to section 3 of the Immigration Act of 1917. Section 3 and section 19 of the act of 1917 must be read together.
2. When an alien has lived here for a long time, has been law abiding except for a conviction for larceny of a watch committed in 1924 while intoxicated, and bears a good reputation, discretion under the seventh proviso to section 3 of the Immigration Act of 1917 will be exercised.
CHARGE:
Warrant: Act of 1917 — Conviction of crime prior to entry — larceny.
Mr. Andrew J. Transue, of Flint, Mich., for the respondent.
BEFORE THE BOARD
STATEMENT OF THE CASE: Warrant of arrest on the charge above stated was issued December 11, 1939. It was served and a hearing accorded the respondent at Flint, Mich., on January 26, 1940. The presiding inspector found the charge in the warrant of arrest sustained, and the District Director at Detroit recommended deportation. The matter is now before this Board for review and decision.
DISCUSSION: The respondent testified that he was born April 28, 1885, and is therefore now 55 years of age, in what is now Yugoslavia and is a citizen of that country. He further testified that he first came to the United States in 1909. He was granted a certificate of registry under the provisions of the Act of March 2, 1929, legalizing his residence in the United States as of April 23, 1909.
Respondent admits that on May 13, 1924, in Flint, Mich., he was convicted of larceny from a building and placed on a year's probation. This testimony is corroborated by a certified copy of his plea and conviction. Notwithstanding this conviction, the alien was found to be a person of good moral character when certificate of registry was issued to him on May 10, 1939.
The respondent upon application made by him was issued a reentry permit in June 1939. He left this country on June 26th for the purpose of settling an estate in his native village in Yugoslavia and was readmitted on the basis of the permit at New York on August 28, 1939.
The present basis for deportation is the conviction for larceny in 1924, which occurred prior to the respondent's last entry into the United States. If the respondent had not departed from the country, this conviction would not have made him subject to deportation, first, because the crime was not committed within 5 years of the respondent's entry into the United States, and second, because the respondent was not sentenced to imprisonment for a term of 1 year or more. However, when he departed from the country and sought reentry he was an alien who had previously been convicted of a crime, to wit, larceny, which crime involves moral turpitude.
Prior to leaving Flint on his trip to Yugoslavia in 1939 the respondent at the suggestion of the acting inspector in charge at Flint obtained a copy of his conviction. He was advised by the Flint immigration office to present that record of conviction upon his return at New York so that he could then be excluded and the question of his readmissibility be considered by the Secretary of Labor under the provisions of the seventh proviso of section 3 of the act of 1917. The respondent says that he did not show this record of conviction to the inspector at New York because he never asked for it. The respondent was, therefore, admitted without the inspector being aware of his prior conviction.
The Immigration and Naturalization Service was transferred to the Department of Justice on June 22, 1940.
The circumstances concerning the conviction indicate that the offense was in no way aggravated. The respondent says that he was drinking and took a watch on a shelf in the place of his employment which belonged to a fellow worker. Mr. Alton Hurd, Deputy Collector, United States Internal Revenue, Jack Herrlich, a businessman of Flint, and John Gilbert, a restaurant operator of Flint, all appeared as witnesses testifying to the alien's good character, industry, and desirability as a resident of his community.
As the alien is subject to deportation under that part of section 19 of the Immigration Act of 1917 relating to those convicted of crime, he may not be permitted to depart voluntarily without the issuance of a warrant of deportation because of the provisions of title II of the Alien Registration Act of 1940. Relief in this case is possible only if the provisions of the seventh proviso of section 3 of the act of 1917 are applicable. This proviso grants to the Attorney General, in his discretion, the power to readmit aliens returning from a temporary absence to an unrelinquished United States domicile of 7 consecutive years. Section 3 of the 1917 act deals with aliens who are inadmissible to the United States. Literally the proviso relates to admitting aliens who are applicants for admission. The deportation sections of the 1917 act do not contain a similar provision. Has the Attorney General, nevertheless, the right to exercise the powers conferred on him by the seventh proviso of section 3 after an alien has reentered the United States if at the time of reentry the alien was qualified for consideration under this provision of law, and if reentry was not accomplished by fraud or misrepresentations? In the past the seventh proviso of section 3 has been applied only where an alien is an applicant for readmission. Under that view in the present case deportation would have to be ordered, and in any event the alien would have to be without the United States for a period of at least 1 year because of the terms of the Act of March 4, 1929, as amended, before permission to reapply could be granted and the alien placed in a position where he could appeal to the discretion of the Attorney General. This circumstance would have been avoided if the question of the alien's inadmissibility had been discovered when he returned from his visit in Yugoslavia in 1939.
It is concluded, therefore, that the disposition of this case involves a question of difficulty, to wit, whether the seventh proviso of section 3 of the act of 1917 may be applied at the present time. In accordance with Department of Justice Order No. 3888 the matter should be referred to the Attorney General.
The Board of Review certifies, in accordance with Order No. 3888, that a question of difficulty, as heretofore pointed out, is involved in the disposition of this case, and, therefore, refers the case, through the special assistant in charge, to the Attorney General for decision.
Became Board of Immigration Appeals August 30, 1940.
STATEMENT OF THE CASE: Warrant of arrest for the respondent was issued on December 11, 1939. The warrant was served and a hearing held at Flint, Mich., on January 26, 1940. The examining inspector found that the charge was supported by the evidence. The district director recommended deportation. The Board of Review, after hearing argument, certified that a question of difficulty was involved. Pursuant to Order No. 3888, dated July 1, 1940, the special assistant in charge referred the case to the Attorney General for decision. He recommended that the warrant of arrest be canceled and the proceedings dismissed.
Became Board of Immigration Appeals August 30, 1940.
The respondent has been paroled to his attorney.
The respondent testified that he is a native and citizen of Yugoslavia, 55 years of age, and single. He states that he first entered this country during 1909; and the record shows he was issued a certificate of registry on May 10, 1939, legalizing his entry at New York on April 23, 1909, on the S.S. Lusitania.
It is shown from the respondent's testimony that on May 13, 1924, he pleaded guilty to a charge of larceny from a building in Flint, Mich., and was placed on probation. At the time respondent was accorded registry this conviction was verified. This single conviction, though for a crime involving moral turpitude, did not render the respondent deportable. Nor was it a bar to respondent's registry. In explaining the circumstances surrounding the commission of the crime, the respondent stated that he took a watch that belonged to a fellow worker from a shelf in a restaurant where he was employed, and that he was intoxicated at the time. He states that this was his first and only arrest or conviction. Because of the circumstances of the crime and because his record and reputation were otherwise good, the respondent was found to be a person of "good moral character" within the meaning of the Registry Act of March 2, 1929, and registry was granted.
While the registry proceedings were pending, the respondent, desiring to visit a sister who was seriously ill in Yugoslavia, applied for a reentry permit. The District Director of the Detroit district stated on April 22, 1939, in transmitting this application, that respondent "does not desire to leave the United States unless he will be permitted to reenter the United States." In a letter from the Assistant to the Commissioner, dated May 22, 1939, however, respondent was advised that "no guarantee of readmission to the United States can be given." Respondent was granted a reentry permit, made his trip, and returned to the United States on August 28, 1939, as a passenger ex-S.S. Normandie. He was admitted by the boarding inspector. No question was asked of him, nor information given, as to his conviction in 1934. Three and one-half months later the present deportation proceedings were instituted.
DISCUSSION: Under the doctrine of United States ex rel. Volpe v. Smith, 289 U.S. 422, respondent is subject to deportation under section 19 of the Immigration Act of 1917 as an alien convicted of a crime involving moral turpitude prior to entry into the United States. The Volpe case holds that this provision of the statute is applicable even though the crime in question was committed in the United States and did not of itself constitute a ground of deportation, and even though the subsequent entry into the United States was a return from a temporary visit abroad to an unrelinquished domicile in this country. The Volpe doctrine manifestly makes foreign travel hazardous for certain classes of domiciled aliens. Not what the alien has done but the fact that he has taken a trip becomes the operative fact that renders him excludable or deportable.
With respect to exclusion cases, however, the Volpe doctrine must be considered in conjunction with the seventh proviso of section 3 of the act of 1917. That proviso authorizes the Attorney General in his discretion to admit otherwise inadmissible aliens "returning after a temporary absence to an unrelinquished United States domicile of 7 consecutive years." Thus, Congress has provided in certain cases for mitigation of hardships that otherwise would result from measuring afresh the admissibility of aliens on the occasion of each new entry. Had respondent been excluded by a board of special inquiry on his return in 1939 he would clearly have been entitled to urge on appeal to the Secretary of Labor a favorable exercise of discretionary power under the seventh proviso.
The precise question presented for decision is, therefore, whether respondent is in a worse position because he was admitted without challenge in 1939, so that his appeal to discretion must be presented in deportation rather than in exclusion proceedings. The seventh proviso, however, appears in section 3, the exclusionary section of the act of 1917. In terms, it applies only to exclusion cases. No corresponding proviso appears in section 19, the deportation section. If I were to hold that the time for an exercise of my discretion has therefore passed, respondent will be compelled to leave the country and thereafter to apply for admission in order to be able to present his appeal in a subsequent exclusion proceeding. Before the Act of June 28, 1940 (title II, section 20 (c)), respondent would have been permitted (if his case were deemed worthy) to depart voluntarily to any country of his choice and from thence to make immediate application for readmission. But under section 20 (d) it is doubtful whether respondent, being in strictness a member of one of the "criminal" classes enumerated in section 19 of the act of 1917, would be eligible for the privilege of voluntary departure. If this were true, respondent could apply for readmission only after a year's time had elapsed and then only with special permission from the Attorney General.
I cannot conclude that Congress intended the immigration laws to operate in so capricious and whimsical a fashion. Granted that respondent's departure in 1939 exposed him on return to the peril of a fresh judgment as to whether he should be permitted to reside in the United States, such judgment ought not to depend upon the technical form of the proceedings. No policy of Congress could possibly be served by such irrational result. Had respondent obtained his readmission in 1939 by deceptive concealment of his prior conviction, the case would have been different. But the record throws no doubt upon his good faith. This being so, he should be permitted to make the same appeal to discretion that he could have made if denied admission in 1939, or that he could make in some future application for admission if he now left the country. To require him to go to Canada and reenter will make him no better resident of this country. To require him to wait a year before reentry, while his resources are exhausted and his shoe-shining business in Flint is destroyed, will make him a worse one.
Section 3 and section 19 of the act of 1917 must be read together. Had respondent sought and received dispensation under the seventh proviso at the time of his readmission in 1939, he would still be deportable under the literal terms of section 19. Yet, of course, section 19 in such case would be read as qualified by section 3 and the action taken thereunder. It should be read similarly in the present situation. Nor need the seventh proviso in section 3 be construed as requiring action at the precise time of readmission. Advance exercise of authority under the seventh proviso is a long-established and useful practice in the Immigration and Naturalization Service. A later, corrective exercise of the authority is similarly proper.
Such action, nunc pro tunc, amounts to little more than a correction of a record of entry, which is a frequent and indispensable practice in many and varied situations. See Solicitor's Opinion (55598/496 D Amendment of Records of Entry). Likewise, aliens who have been deported and subsequently returned to the United States have been granted permission to reapply nunc pro tunc after arrival here. [ See case of] (D-56021/604 Board of Review). This permission was extended under section 7 of the Act of May 25, 1932, 8 U.S.C., section 181, which authorizes the Attorney General to grant the deported alien permission to reapply "prior to his reembarkation at a place outside the United States."
I am of the opinion, therefore, that respondent need not be deported. Respondent first became deportable at the time of his last entry, and the only ground for deportation is one that might have been removed by discretionary action at that time. In such circumstances, I am of opinion that the Attorney General may exercise a similar discretion in subsequent deportation proceedings.
FINDINGS OF FACT: Upon the basis of all the evidence produced at the hearing and upon the entire record of the case it is found:
(1) That the respondent is an alien, a native and citizen of Yugoslavia;
(2) That the respondent is recorded as having entered the United States for permanent residence at the port of New York on April 23, 1909, ex-S.S. Lusitania, and that the respondent has been domiciled in the United States continuously since that time;
(3) That the respondent last entered the United States at the port of New York on August 28, 1939, as a passenger ex-S.S. Normandie;
(4) That during 1924 the respondent was convicted in Michigan of larceny.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That, in the absence of discretionary action in his favor, the respondent is subject to deportation, under section 19 of the Immigration Act of February 5, 1917, on the ground that prior to his last entry he was convicted of a crime involving moral turpitude, to wit: larceny;
(2) That upon his last entry into the United States the respondent might have been admitted, in the discretion of the Secretary of Labor, as an alien returning after a temporary absence to an unrelinquished United States domicile of 7 consecutive years; that such action by the Secretary of Labor would have given the respondent legal status as a permanent resident of the United States not subject to deportation on account of the crime committed prior to entry; and that the power to admit the respondent and to give him such legal status may be exercised nunc pro tunc in the present proceedings;
(3) That under section 20 of the Immigration Act of February 5, 1917, the respondent, if ordered to be deported, is deportable at steamship expense.
OTHER FACTORS: It remains to be determined whether the discretion authorized by the seventh proviso of the act of 1917 should be exercised in the respondent's favor. As already stated, the respondent has no criminal record other than the arrest and conviction in 1924; and in connection with that crime there are mitigating circumstances. The respondent stated that he has always been self-supporting. He has no relatives in the United States, a brother and sister in his native country. Alton Hurd, Deputy Collector of Internal Revenue, testified that he had known the respondent for at least 15 years and the respondent bears a good reputation. Two other persons, businessmen, also testified persuasively in the respondent's behalf. In view of the fact that the respondent has lived here since 1909 and that he has been law abiding for years, I am of the opinion that he should be treated as readmitted under the seventh proviso of section 3 of the 1917 act so as to give him legal status as a permanent resident not subject to deportation by reason of the offense and conviction in 1924.
ORDER: That the warrant of arrest be canceled and the proceedings dismissed.