A-4188325
Decided by Board April 4, 1957
Suspension of deportation — Section 244 (a) (5), Immigration and Nationality Act — Final order of deportation — Alien ineligible for suspension at time of final deportation order remains ineligible whether or not his application for suspension was filed prior to or subsequent to the deportation order.
(1) The purpose of the requirement in section 244 (a) (5) of the act that the alien "has not been served with a final order of deportation issued pursuant to this Act" is to preclude suspension of deportation where the alien was not eligible for such relief at the time of the final order. (Cf. Matter of C---- L----, E-086239, Int. Dec. No. 774.)
(2) Hence, an alien who was served with a final order of deportation under the Immigration and Nationality Act on November 19, 1954, at which time he was statutorily ineligible for suspension of deportation under section 244 (a) (5) of the act because 10 years had not elapsed between the time of the cessation of his membership in the Communist Party and the date of his application for suspension may not be granted such relief on a subsequent application, despite a showing that more than 10 years have now elapsed since he left the Communist Party.
CHARGES:
Warrant: Act of 1952 — Section 241 (a) ( 8 U.S.C. 1251) — After entry, member of the Communist Party of the United States.
Lodged: Act of 1952 — Section 241 (a) (6) ( 8 U.S.C. 1251) — After entry, member of the Communist Party of the United States.
BEFORE THE BOARD
Discussion: On July 1, 1954, the special inquiry officer denied the respondent's request for suspension of deportation on the ground of statutory ineligibility and directed deportation on the charge contained in the warrant of arrest. On November 19, 1954, this Board sustained the respondent's deportability on the lodged charge because it was more specific than the warrant charge, although the 2 charges were substantially the same, and dismissed the appeal from the special inquiry officer's order. A warrant of deportation followed on December 7, 1954. Thereafter, the case again came before us on a motion requesting withdrawal of the outstanding order and warrant of deportation and reopening of the proceedings to afford the respondent an opportunity to apply for and prosecute another application for suspension of deportation, on the ground that there was no longer a statutory bar to such relief. On February 6, 1957, we deferred action on the motion pending final determination of the respondent's petition claiming United States citizenship then before the United States District Court for the District of Columbia. That court, however, dismissed the cause of action with prejudice as to the citizenship issue, but without prejudice as to administrative determination by this Board on other issues. Accordingly, we will now consider the motion on its merits together with the Service's memorandum opposing it.
This record relates to a married male alien, approximately 35 years of age, a native and subject of Japan, who entered the United States at Honolulu, T.H., on June 19, 1922, and who has not departed from the Territory of Hawaii since that date. His deportability, which is not in issue here, is predicated on his membership in the Communist Party of the United States from approximately June to November or December of 1946. The respondent is married to a native-born citizen of the United States; there are 2 citizen children of the union, and the family assets amount to approximately $20,000.
When we dismissed respondent's appeal from the special inquiry officer's order denying his application for suspension of deportation we pointed out, as had the special inquiry officer before us, that the respondent was only eligible for such relief under section 244 (a) (5) of the Immigration and Nationality Act ( 8 U.S.C. 1254), which is still the case. We also pointed out that eligibilty for such an adjustment of status depended upon the respondent establishing that 10 years had elapsed between the time his membership in the Communist Party ceased and the date on which he submitted and executed his application for suspension of deportation. We further pointed out that the respondent could not make such a showing because, obviously, there was not a 10-year gap between November or December 1946 when the respondent's Communist Party membership ceased, and March 30, 1954, the date on which he submitted and executed his application for suspension of deportation. It was for these reasons that we held, as had the special inquiry officer, that the respondent was statutorily ineligible for suspension of deportation.
The motion presently under consideration sets forth that more than 10 years have now elapsed since the respondent left the Communist Party in November or December of 1946. The claim is that, therefore, he is now eligible for suspension of deportation under section 244 (a) (5) of the Immigration and Nationality Act ( 8 U.S.C. 1254). It is on this basis that we are requested to reopen the proceedings to permit the respondent to again apply for suspension of deportation.
The Service, on the other hand, contends that the respondent is still ineligible for the relief he seeks, under the statute. The Service points to that portion of section 244 (a) (5) of the Immigration and Nationality Act ( 8 U.S.C. 1254) which specifically states that an alien applicant for suspension of deportation thereunder is ineligible for such relief unless "he has not been served with a final order of deportation issued pursuant to this Act in deportation proceedings up to the time of applying to the Attorney General for suspension of deportation." The Service takes the position that our order of November 19, 1954 supra, is a final order within the purview of the foregoing provision of the statute and, therefore, the respondent, having been served with same, is still statutorily barred from the relief he seeks. The Service claim is that the respondent is precluded from tacking on any period of time subsequent to such an order and thereby establishing compliance with the 10-year requirement of the statute.
We agree with the position taken by the Service and conclude that this motion must be denied. Under the regulations, our order of November 19, 1954, was final. At that time the statute barred suspension of respondent's deportation. By that order the respondent, having been served with notice of same, was precluded from thereafter establishing eligibility for suspension of deportation. The reason is that the statute so provides.
Section 244 (a) (5) of the Immigration and Nationality Act ( 8 U.S.C. 1254) contains the requirement that the alien "has not been served with a final order of deportation issued pursuant to this Act in deportation proceedings up to the time of applying to the Attorney General for suspension of deportation." We believe that the purpose of this requirement is to preclude suspension of deportation where the alien was not eligible for such relief at the time of the final order. We so hold, as we have done previously ( Matter of C---- L----, E-086239, Int. Dec. No. 774, B.I.A., Feb. 28, 1956).
Order: It is ordered that the motion be and the same is hereby denied.