A-7450755
Decided by Board January 3, 1951
Suspension of deportation — Discretionary relief — Exercise of discretion in certain classes of cases.
An alien came here as a seaman in May 1948, intending to remain. The Central Office directed his deportation on July 27, 1950, which order was affirmed by the Board of Immigration Appeals on August 31, 1950. On August 5, 1950, he became engaged to, and on August 29, 1950, he married a United States citizen. As a recently arrived seaman who had married after institution of deportation proceedings, suspension of deportation was not deemed justified as a matter of policy and the maximum of discretionary relief indicated was voluntary departure without an order of deportation. (See 3 IN Dec. 490; also see 4 IN Dec. 64.)
CHARGE:
Warrant: Act of 1924 — No immigration visa.
BEFORE THE BOARD
Discussion: The case is now before the Board on a motion filed by the respondent through his attorney, asking that the case be reopened for further hearing so that the respondent may apply for suspension of deportation. The Immigration and Naturalization Service, through counsel, has appeared before the Board in opposition to this motion.
The respondent was born in Spain on March 11, 1922, and he is now a citizen of that country. He arrived at the port of Philadelphia, Pa., on May 4, 1948, on the S.S. Monte Moncayo and was admitted as a seaman for a period not to exceed 29 days. The respondent deserted this vessel at the port of New York May 15, 1948. According to the respondent's testimony, he came to this country to remain permanently and find employment. He had no immigration visa. The respondent found employment after his entry and has been working steadily. At the hearing, he was asked if he desired permission to leave the country voluntarily. He replied that he would like to leave voluntarily but had no funds with which to do so.
On these facts, the Assistant Commissioner by order of July 27, 1950, directed deportation. On appeal to this Board, the order of the Commissioner was affirmed August 31, 1950.
The present motion is based on the fact that the respondent was married August 29, 1950, to a young woman who was born in Puerto Rico on April 29, 1929. The motion papers, dated October 6, 1950, allege that for the past 3 weeks the wife has been unemployed. The motion papers further state that the respondent became engaged to marry his present wife on August 5, 1950.
It will be observed that the engagement as well as the marriage occurred after the order of the Assistant Commissioner directing deportation. In the Matter of M----, A-6429531, February 11, 1949; approved by the Attorney General June 21, 1949, 3 IN Dec. 490, the rule was laid down that in the case of recently arrived aliens who marry after the institution of deportation proceedings, suspension of deportation is not justified. Counsel argues that the ruling in the Matter of M----, which sets up a class of cases where discretionary relief will not be granted, is invalid because of the decision of the Circuit Court of Appeals for the Second Circuit in Mastrapasqua v. Shaughnessy, 180 F. (2d) 999. The Mastrapasqua case was concerned with the validity of a ruling of the Attorney General in the Matter of L----, A-5955999 (see Int. Dec. #225), to the effect that aliens whose presence in the United States is due solely to the war are not to be granted preexamination. The court held that there was no justification for this classification either in the record in the Mastrapasqua case or in the L---- case. The court observed:
There seems no more rationality in this classification than there would be in arbitrarily refusing to consider discretionary relief for all left-handed men or for all whose names begin with the first thirteen letters of the alphabet. Consequently, we conclude that the classification is capricious.
In considering the matter, the court stated that courts have no power to review administrative discretion when it is reasonably exercised, but in appropriate circumstances courts can compel correction of an abuse of discretion or can compel an official to exercise his discretion where he has obviously failed or refused to do so. The court added:
Such an obvious refusal occurs, we think, when an official sets up a class of cases as to which he refuses ever to exercise any discretion, one way or the other, if that class is not rationally differentiated from other cases, not within that class, where he uses his discretion case by case. [Emphasis supplied.]
We do not find that the court in the Mastrapasqua case was saying that standards as to the exercise of discretion may not be applied by administrative tribunals. Indeed, if there is to be impartial and fairness of treatment, to all, standards are requisite. What the court was saying was that administrative tribunals may not set up arbitrary standards. The court views the standards in the L---- case as arbitrary and capricious, and with no more foundation as the court said than to deny discretion to all left-handed men or to all whose names begin with the first thirteen letters of the alphabet.
The basis for the ruling in the Matter of M----, is not arbitrary and capricious, but on the contrary does have a definite and pertinent bearing on immigrant enforcement. The purpose of the ruling is to discourage aliens from entering the country illegally or remaining here in violation of law and who may hope that marriage to a United States citizen will result in legalizing residence. It is true because of other considerations, the rule is limited to aliens who are recent arrivals and marry after the institution of deportation proceedings, but as to this class the effect of the ruling is salutary in an effort to maintain fairness and impartiality in administration of the immigration laws.
The instant case is a good example of the necessity for the ruling. Here the alien entered the country in the guise of a seaman with the deliberate intention of remaining here permanently, in violation of the immigration laws. He would have remained here illegally if not apprehended by the Immigration Service. His engagement to his wife, as well as the marriage, was after the order of the Commissioner.
It is our conclusion that the ruling in the Matter of M---- is in no way disturbed by the holding of the Second Circuit in the Mastrapasqua case; and, hence, suspension of deportation is inappropriate. All new material facts have been set forth in the motion. The ruling in the Matter of M---- is broad in its scope and applies even if the marriage of the respondent to his present wife is based primarily on mutual love and affection. Reopening, therefore, under such circumstances would be productive of no matter of material value either to the respondent or to the Government, and hence application therefor will be denied.
At the hearing, counsel for the respondent said that the respondent would accept voluntary departure without a warrant if granted. If the respondent departs voluntarily without an outstanding order of deportation, he may secure a preference quota immigration visa after a petition has been filed by his wife and has been approved. Counsel for the Immigration and Naturalization Service saw no objection to a grant of voluntary departure without preexamination. We believe a fair disposition of the case, in accordance with the action taken in the Matter of M----, justifies giving the alien an opportunity to depart from the United States voluntarily without an order of deportation.
Order: It is ordered that the application for reopening of the proceeding so that the respondent may apply for suspension of deportation be denied.
It is further ordered that the outstanding order and warrant of deportation be withdrawn, and that the alien be permitted to depart voluntarily from the country, to any country of his choice, within 30 days of notification of decision, and upon consent of surety on the bond.