E-118717
Decided by the Board January 26, 1954
Permission to return to unrelinquished domicile — Section 212 (c) of the Immigration and Nationality Act — Nunc pro tunc — In advance — Lawful unrelinquished domicile.
(1) The benefits of section 212 (c) of the Immigration and Nationality Act cannot be granted nunc pro tunc in the case of an alien who was lawfully admitted to the United States for permanent residence in 1902 but who last entered the United States in 1931 without inspection and was found deportable under section 241 (a) (2) of the act. Section 212 (c) does not contain authority to waive entry without inspection which is a ground of deportation.
(2) Such discretion cannot be exercised in advance to cover convictions of crimes involving moral turpitude committed prior to entry if, in the future, the respondent should be an applicant for admission since, in view of his entry without inspection in 1931, it can no longer be said that his status has not changed or that he would be returning to a lawful unrelinquished domicile.
CHARGES:
Warrant: Act of 1952 — Excludable at time of entry — Prior conviction of crime-section 241 (a) (1).
Act of 1952 — Entered without inspection — Sec. 241 (a) (2).
BEFORE THE BOARD
Discussion: This case is before us on appeal from a decision of a special inquiry officer on November 3, 1953, granting the respondent voluntary departure and directing that he be deported if he fails to depart voluntarily.
The respondent is a 63-year-old male, native of England and British subject, who was lawfully admitted for permanent residence on June 12, 1902. He last entered the United States on January 26, 1931, after an overnight absence in Cuba. The special inquiry officer found that at the time of the respondent's last entry, he claimed to be a citizen of the United States and that such entry was, therefore, an entry without inspection. The special inquiry officer also concluded that the respondent was deportable because of two convictions prior to his 1931 entry.
We have carefully considered counsels' contentions in their brief and at the oral argument. They contend that the crimes of which the respondent was convicted do not involve moral turpitude. On March 13, 1911, the respondent was indicted for burglary in the third degree, petit larceny and "receiving." In connection with this indictment, he pleaded guilty on March 28, 1911, to the crime of unlawfully entering a building. The record of this conviction has appended pertinent information concerning the indictment for burglary in the third degree which shows that the respondent was charged with breaking into and entering a railway car with the intention of stealing, taking and carrying away goods, chattels, and personal property from the railway car. On November 14, 1911, the respondent was indicted for burglary in the third degree and on November 21, 1911, he pleaded guilty to the crime of an attempt to commit the crime of burglary in the third degree. That record of conviction has appended information concerning the indictment which indicates that he was charged with breaking into and entering a building with the intention of stealing, taking and carrying away goods, chattels, and personal property from the said building.
Counsel contend that the crimes for which the respondent was convicted were different from the crimes stated in the indictments. We do not agree that the plea of guilty may be completely disassociated from the indictments in view of the discussion in our previous decision in Matter of W----, A-5636445, 4 IN Dec. 241, decided January 19, 1951. We there referred to the fact that a pleading or indictment is essential to the prosecution of a crime and to the acceptance of a plea under the law regulating criminal procedure in the State of New York (Code of Criminal Procedure, secs. 4, 222, 444 and 445). Sections 444 and 445 provide that upon an indictment for a crime consisting of different degrees, a defendant may be found not guilty of the degree charged in the indictment and guilty of any degree inferior thereto, or of an attempt to commit the crime, or he may be found guilty of any crime, the commission of which is necessarily included in that with which he is charged in the indictment. On the basis of the reasoning which was fully set forth in Matter of W---- ( supra), we conclude that the respondent's conviction for unlawfully entering a building must be considered the unlawful entering of a building with the intent to commit larceny, and that his conviction for an attempt to commit the crime of burglary in the third degree must be considered as an attempt to break and enter a building with the intent to commit the crime of larceny. We hold, therefore, that the two crimes of which the respondent was convicted involve moral turpitude. Since it is not disputed that the respondent reentered the United States from Cuba on January 26, 1931, it follows that the first charge stated in the warrant of arrest is sustained.
In connection with the second charge stated in the warrant of arrest, the respondent testified that he did not have an immigration visa, reentry permit or other document at the time of his 1931 entry. Under Executive Order 5426 of August 20, 1930, which was in effect from that date until June 30, 1932, it was specifically provided that aliens who had previously been admitted legally into the United States and who had departed for less than 6 months to certain places, including Cuba, were not required to present passports, visas or permits to reenter. However, in 1931, section 3 of the Immigration Act of 1917 required the respondent's exclusion because of his two prior convictions for crimes involving moral turpitude.
At the hearing, the respondent admitted that a verification of arrival related to his entry on January 26, 1931, and this was received in evidence without objection. We are not impressed with counsel's argument that there is an inconsistency between the statement on exhibit 3 reading "Certificate of Admission of Alien" and the fact that the form indicates that the M---- M---- referred to therein claimed that he was a citizen of the United States. It is not contended that the respondent was a citizen in 1931. Hence, exhibit 3 is actually and in fact a certificate concerning the admission of an alien (the respondent) even though he was admitted in 1931 as a United States citizen. Likewise, we are not impressed with the argument that the law, in existence at the time of the respondent's entry in 1931, required the manifest of arriving United States citizens to show only the sex, age, class of travel, and the foreign port of embarkation. There was nothing in the law which precluded the ascertainment of additional information from arriving United States citizens, and it was entirely logical to require at least the information as to whether United States citizenship was claimed and the manner in which such citizenship had been acquired.
Exhibit 3 is a verification of arrival furnished to the New York office of the Service on September 1, 1953, and sets forth information contained in the manifest of the SS. Iroquois which arrived at Miami on January 26, 1931. Since the respondent's former counsel did not question the sufficiency of exhibit 3, we consider that the respondent is estopped from now raising that question. If we accept the respondent's testimony that he does not remember being questioned by an immigration officer at the time of the 1931 entry or his specific denial that he was questioned by an immigration officer, there is in any event, no claim by him or other evidence that he was inspected as an alien at the time of his arrival on January 26, 1931. Section 16 of the Immigration Act of 1917 specifically required the examination, by immigrant inspectors, of all aliens arriving at ports of the United States. Based upon the presumption of official regularity in the performance of duties prescribed by law, we entertain no doubt that, when the respondent applied for admission to the United States at the port of Miami on January 26, 1931, he was questioned by an immigrant inspector to determine whether he was a citizen or an alien, and that the respondent at that time claimed United States citizenship. We further find, because of such claim of United States citizenship, that the respondent was not inspected as an alien as required by law.
Counsel cited Matter of K----, A-7030745, 3 IN Dec. 262 (decided by central office July 28, 1948) and Matter of B---- and P----, 56152/825, 56154/758, 2 IN Dec. 638, decided June 27, 1946 (approved by Atty. Gen. Dec. 10, 1947). We do not consider that these cases are particularly pertinent. In the first case, the subject was only a few months old at the time of entry and it was apparent that there could have been no fraud or misrepresentation on his part at the time he was erroneously recorded as a citizen. The statement quoted by counsel from the second decision, to the effect that the records of entry of many aliens contain assumed or incorrect names and other errors, refers primarily to cases in which arriving aliens had furnished incorrect information concerning their names or other facts.
It is true, as counsel assert, that the charge of entry without inspection was barred 3 years after the respondent's entry in 1931 and that after 1934 and prior to the effective date of the Immigration and Nationality Act, he would not have been deportable on that ground. However, counsel's contention that the respondent thus had a "status" or "condition" existing upon the effective date of the Immigration and Nationality Act which was preserved by the savings clause in section 405 (a) of that act does not appear to us to be sound in view of the opening phrase of that provision, namely, "Nothing contained in this act, unless otherwise specifically provided therein, * * *." In other words, the italicized language removes the respondent's case from the purview of section 405 (a) because it is specifically provided in section 241 (d) that, except as otherwise specifically provided in section 241, the provisions thereof shall be applicable to all aliens belonging to any of the classes enumerated in subsection (a), notwithstanding that the facts, by reason of which any such alien belongs to any of the classes enumerated, occurred prior to the date of enactment of the act. We have previously dismissed similar contentions in Matter of M----, A-2669541, Int. Dec. No. 442, decided June 1, 1953, and Matter of I----, E-25308, Int. Dec. No. 469, decided July 21, 1953.
Counsel's argument that the Immigration and Nationality Act would be unconstitutional if applied retroactively, must be dismissed on the authority of Mahler v. Eby, 264 U.S. 32 (1924), and Harisiades v. Shaughnessy, 342 U.S. 580 (1952), in which similar contentions were advanced concerning other immigration statutes. The retroactive effect of another provision of the Immigration and Nationality Act was specifically upheld in United States ex rel. Marcello v. Ahrens, 113 F. Supp. 22 (E.D. La., 1953). In view of the foregoing, we conclude that the respondent is deportable on the charge that he entered without inspection.
Counsel next argue that, if we find the respondent deportable, he should be granted discretionary relief. We find no reason to disagree with counsel's assertion that the respondent has been, for 20 years, and now is a person of good moral character; that his deportation would result in exceptional and extremely unusual hardship to him and to his wife, the latter being a native born citizen; and that she is completely dependent upon the respondent for support.
Counsel assert that suspension of deportation may be granted to the respondent under paragraphs (4) and (5) of section 244 (a) of the Immigration and Nationality Act, although they concede that he is technically not within the purview of paragraph (4) since his last entry occurred more than 2 years prior to June 27, 1952, the date of enactment of the Immigration and Nationality Act, and that he does not meet the requirements of paragraph (5) since he is not deportable under any of the paragraphs of section 241 (a) which are enumerated in section 244 (a) (5). They argue that, if the ruling of the special inquiry officer were followed, it would mean that no application for suspension of deportation could be entertained under these two paragraphs prior to June 27, 1960. While that statement appears to be correct insofar as it concerns paragraph (4), it is incorrect as to cases within the purview of the first part of paragraph (5) since a person who now has 10 years physical presence and good moral character and who otherwise meets the requirements of that part of paragraph (5) can apply for suspension of deportation at this time.
The principal argument of counsel, concerning the respondent's asserted eligibility for suspension of deportation, is that section 244 (a) (5) is applicable to persons deportable on criminal grounds under section 241 (a) (4), that is, aliens convicted of crimes after entry; that it was the intention of Congress that reformed criminals should be in a position to apply for suspension of deportation; and that we should interpret the statute in a manner which would permit the respondent to apply for suspension of deportation. There may be no logical reason why a reformed criminal should be able to apply for suspension of deportation under section 244 (a) (5) and not under section 244 (a) (4). However, Congress established five separate categories under section 244 (a) in paragraphs (1) to (5) inclusive and unless an alien can bring himself within one of these paragraphs, there is no statutory authority to grant suspension. In addition, the duty of interpreting a statute does not arise where the language is plain, and we consider that the specific terms of paragraphs (4) and (5) of section 244 (a), with the fact that the respondent has been found deportable because of conviction of a crime prior to entry, foreclose relief by way of suspension. Accordingly, we will direct that his application for suspension of deportation be denied.
Caminetti v. United States, 242 U.S. 470, 485 (1917).
With respect to the question of whether any other form of discretionary relief may be granted, the respondent is, of course, not eligible for relief under the 7th proviso to section 3 of the Immigration Act of 1917, since no application for that relief was made prior to December 24, 1952. Counsel does not contend that the authority contained in the 7th proviso may be exercised in the respondent's case, but asserts that the respondent should be granted relief under a somewhat similar provision contained in section 212 (c) of the Immigration and Nationality Act of 1952. They request that section 212 (c) be exercised nunc pro tunc to cure the respondent's reentry on January 26, 1931. That subsection provides that aliens who meet the requirements stated therein may be admitted, in the discretion of the Attorney General, without regard to the provisions of paragraph (1) through (25) and paragraphs (30) and (31) of section 212 (a). Hence, authority to waive a conviction of a crime prior to entry is contained in section 212 (c) since that ground of excludability appears in section 212 (a) (9). However, section 212 (c) does not contain authority to waive the respondent's entry without inspection, which is a ground of deportation under section 241 (a) (2) but not a ground of excludability.
While not specifically urged by counsel, we have also given consideration to the question of whether section 212 (c) could be exercised to waive the ground of inadmissibility relating to the respondent's convictions for crimes involving moral turpitude if he should in the future apply for admission to the United States. The prerequisite to the exercise of this authority is the opening clause which reads as follows: "Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of 7 consecutive years, * * *." The term "lawfully admitted for permanent residence" is defined in section 101 (a) (20) of the Immigration and Nationality Act as meaning the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed. While the respondent was accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws in 1902, we believe that in view of his entry without inspection in 1931, it can no longer be said that his status has not changed or that he would be returning to a lawful unrelinquished domicile if he should in the future be an applicant for admission to the United States.
We have carefully considered all of the evidence of record and counsel's representations that the respondent has been completely rehabilitated; that he was married to a native born citizen of the United States in 1934 and has lived continuously with her since that time in a quiet and respectable manner; that he is her sole support; that the respondent has resided in the United States for over 50 years and is now 63 years of age; and that he and his wife are in ill health. We have observed that the respondent's last conviction was in 1913 and that the only subsequent arrests were in 1916 and 1921 when he was discharged. We are inclined to agree with counsel that there are appealing circumstances in this case. Nevertheless, in view of the provisions of existing law, there is no discretionary relief which can be granted except voluntary departure. Since that relief has already been authorized by the special inquiry officer, we have no alternative but to dismiss the appeal.
Order: It is ordered that the application for suspension of deportation be denied.
It is further ordered that the appeal be and the same is hereby dismissed.