A-5806174
Decided by Central Office December 6, 1950 Decided by Board March 30, 1951
Reentry permit — Section 10 (f) of the Immigration Act of 1924 — Effect where alien not entitled to such document, inadvertently issued to him to visit abroad and return to continental United States.
A Filipino, who came to Hawaii in 1927 and resided there until 1946, when he became employed on army transports, who was never admitted to continental United States with an immigration visa, but had come to continental United States as an alien seaman and was admitted as such when he last arrived in continental United States in 1949, was issued inadvertently a reentry permit to visit abroad and return to the continental United States to which he was not entitled; the inadvertency in issuing a permit cannot give to the applicant a status denied him by law. (See 4 IN Dec. 143.)
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — No immigration visa.
Act of 1934 — Philippine resident of Hawaii not entitled to admission to the mainland, without presenting an immigration visa.
BEFORE THE CENTRAL OFFICE
(December 6, 1950)
Discussion: The subject of this record is a 44-year-old married male, a native and citizen of the Philippine Islands who arrived at the port of San Francisco, Calif., on November 2, 1950, as a passenger aboard the S.S. President Cleveland and applied for admission to the continental United States. He was excluded by a Board of Special Inquiry on the grounds set forth above and has appealed from such excluding decision.
The evidence of record establishes that the appellant was admitted to Hawaii in 1927; that he resided there until 1946 at which time he became employed as a seaman aboard United States army transports. The record further establishes that the appellant was admitted to the continental United States at the port of San Francisco, Calif., on August 18, 1949, pursuant to section 3 (5) of the Immigration Act of 1924 having arrived as a seaman aboard the U.S.A.T. Gen. Simon B. Buckner; and that he was discharged from that vessel August 24, 1949. The appellant testified that following his discharge he continued to reside in the United States until his departure in November 1949 for the purpose of visiting his sister in the Philippine Islands from which visit he now seeks to reenter the United States.
The appellant is in possession of a reentry permit issued to him by this Service on November 15, 1949, and which was valid to November 15, 1950. He was also in possession of a Philippine passport issued August 20, 1947, and valid until August 19, 1951, which bears a stamp notation "This passport is not valid for travel except in necessary countries in the pursuit of bearer's calling as a seaman."
Although the appellant was admitted to Hawaii in 1927 as a national of the United States, by reason of section 8 (a) (2) of the act of March 24, 1934, he was and still is precluded from entering continental United States as an immigrant without presenting an immigration visa. Accordingly, not having entered continental United States as an immigrant in possession of an immigration visa and not having previously entered Hawaii in possession of an immigration visa, he had no lawful residence in continental United States on which to predicate the lawful issuance of a reentry permit. Accordingly, the reentry permit dated November 15, 1949, was erroneously issued to him although such issuance was without fraud or misrepresentation on the part of the appellant.
The sole question to be determined at this time is the applicability to the instant case of the decision of the Board of Immigration Appeals in Matter of V----, A-6316992 (October 10, 1950, approved by the Attorney General October 25, 1950). In that case the Board of Immigration Appeals stated:
It is our conclusion, therefore, that as a matter of law a reentry permit secured without fraud or misrepresentation must be given the effect set forth in the statute (sec. 10 (f), Immigration Act of 1924), to wit: That the holder of the reentry permit is returning from a temporary visit abroad.
In the instant case the question at issue is not whether the appellant is returning from a temporary visit abroad but whether he had a lawful admission to the United States for permanent residence which is the prerequisite for the lawful issuance to him of a reentry permit. There is no question but that he had no such lawful admission. Even if we accept the Board's decision and conclude that "as a matter of law" his reentry permit secured without fraud or misrepresentation establishes that the appellant is returning from a temporary visit abroad, which is all that Matter of V---- demands, he is nevertheless inadmissible to the United States since he is not entitled to admission on the basis of the reentry permit which he presents and to which he is not lawfully entitled.
Upon consideration of the entire record, the findings of fact and conclusions of law stated by the board of special inquiry at the close of the hearing are hereby adopted. No exceptions have been submitted.
Order: It is ordered that the excluding decision of the board of special inquiry be affirmed, without prejudice to reapplication for admission within one year when in possession of the necessary documents.
Discussion: We agree with the conclusion reached by the Assistant Commissioner that the applicant is inadmissible to the United States even though in possession of a reentry permit which was not obtained through fraud or misrepresentation.
Briefly, the facts are that the applicant, a Filipino, came from the Philippine Islands to Hawaii in 1927. From about 1946 until 1949 the applicant apparently was employed on army transports. He last arrived at San Francisco on the U.S.A.T. Gen. Simon B. Buckner on August 18, 1949, and was admitted as an alien seaman. He applied for a reentry permit to visit in the Philippines, and gave as his last arrival in the United States his arrival at Honolulu, T.H., on November 17, 1927. Since this arrival was verified, the permit was issued.
Section 8 (a) (2) of the Philippine Independence Act, the act of March 24, 1934, provides in effect that a Filipino coming to continental United States from the Territory of Hawaii shall not be admitted as an immigrant unless in possession of an immigration visa. (To this there are exceptions not pertinent to this case.)
The applicant in this case was never admitted to continental United States with an immigration visa. Hence, he was not entitled to a reentry permit to visit abroad and return to continental United States, and, therefore, the reentry permit was inadvertently issued to him. The inadvertency in issuing a permit cannot give to the applicant a status denied him by law.
Our conclusion in this case is in no sense inharmonious with our decision of October 10, 1950, in the Matter of V----, A-6316992, approved by the Attorney General October 25, 1950. There we pointed out that section 10 (f) of the Immigration Act of 1924 provided that a reentry permit shall have no effect under the immigration laws, except to show that the alien to whom it is issued is returning from a temporary visit abroad, and held that upon the return of an alien to the United States with a reentry permit which had not been procured by fraud or misrepresentation nor extensions secured by the same means must be accepted as establishing that the alien to whom it was issued is returning from a temporary visit abroad. That issue is not involved in the case before us.
Order: It is ordered that the appeal from the decision of the Assistant Commissioner be dismissed.