A-2225243
Decided by Board March 11, 1949
Suspension of deportation — Section 19 (c) (2) of the Immigration Act of 1917, as amended — Enemy alien objector to United States military service — Former member of Fascist Party in Italy — "Loyalty" to United States — Discretion.
An Italian, who came here in 1940 to serve as a waiter at the Italian Pavilion, New York World's Fair, who couldn't return to Italy after that country entered World War II because of Britain's control of the sea, who registered under the Selective Training and Service Act of 1940, who was classified 1-A by his draft board in January 1944, called for induction in February 1944, who was sentenced in June 1944, for failure to report but whose conviction was set aside in March 1945 after he was imprisoned from June 1944 to March 1945, whose right to claim exemption from such service as an enemy alien was not recognized by the convicting court in the first instance, who was an inactive member of the Fascist Party in Italy from 1925 to 1940 when he came here, belonged to no organizations advocating the principles of Fascism while here, who was willing to serve this country only when his immigration status was legalized, who was never interned here as one dangerous to our internal security, would not be denied suspension of deportation because of doubt as to loyalty to the United States since all the circumstances being considered, disloyalty to the United States was not found indicated.
CHARGE:
Warrant: Act of 1924 — Remained longer — visitor for business.
BEFORE THE BOARD
This record is before us on appeal from an order entered by the Assistant Commissioner October 1, 1948, denying the respondent's application for suspension of deportation and, in the alternative, for voluntary departure and preexamination and ordering his deportation to Italy, at Government expense, on the charge stated above.
Discussion as to Deportability: The respondent, a native and citizen of Italy, male, 36 years of age, was admitted at the port of New York on May 9, 1940, for a temporary period to expire 30 days after the termination of his employment at the New York World's Fair. He has remained in this country longer than 30 days following the termination of his employment at the New York World's Fair and is subject to deportation under the Immigration Act of 1924. Discussion as to Eligibility for Suspension of Deportation: The respondent married a citizen of the United States on January 25, 1947. He has submitted evidence of his marriage in New York and the birth of his wife in the United States. The record indicates that the respondent's marriage was not consummated until March of 1948, because his wife feared that public announcement would be too great a shock to her aged and ailing mother. Affidavits executed by the respondent and his wife and submitted by counsel on appeal relate that public announcement of their marriage was made at a social gathering of the family on March 7, 1948, and that they have resided together since that time.
The respondent is employed as a captain of waiters at the Cafe Louis XIV, 15 West Forty-ninth Street, New York City, and averages $53 a week. His assets consist of $900 in cash, a $500 U.S. Treasury Bond, and a one-half interest in resort property located at Sag Harbor, N.Y. and valued at $4,000. His wife is unemployed and wholly dependent upon him for support.
The respondent originally entered the United States to serve as a waiter at the Italian Pavilion, New York World's Fair. When Italy entered the late war June 10, 1940, the Italian Pavilion closed and it was impossible for the respondent to return to his native country in accordance with the terms of his admission, due to Britain's control of the sea. He registered under the Selective Training and Service Act on October 16, 1940. Although an alien enemy, he was classified 1-A by his draft board on January 12, 1944.
The respondent was called for induction during February of 1944. He failed to report and on June 23, 1944, was sentenced to 2½ years' imprisonment for violation of the Selective Training and Service Act. He was imprisoned from June 20, 1944, until March 8, 1945, when his conviction was set aside by an order of court vacating the judgment. It is not clear from the record why the court in the first instance did not recognize the respondent's right to claim exemption as an alien enemy under the Selective Training and Service Act.
The respondent testified that he was a member of the Fascist Party in Italy from 1925 until he embarked for the United States; that he never held any public office as a party member; that his membership in the party only meant that he was in favor of the then Government of Italy, as he felt that "the Government was all right for the people" and that since coming to the United States he has belonged to no organization advocating the principles of Fascism. The respondent also testified that during the period the United States was at war with Italy and since he fully expected to return to his native land, he was only interested in the "freedom" of his country; that during this period he "favored Italy" and that he would be willing to serve this country "only when (his) position (immigration status) is legalized."
The Commissioner denied the respondent's application for discretionary relief primarily because of doubt as to his loyalty to the United States. The respondent has never been the subject of alien enemy proceedings. His call for induction appears to have been in error. On the other hand, the record before us indicates that the respondent's refusal to serve in the Armed Forces was consistent with his status as an alien enemy. The Attorney General has held that all the circumstances surrounding an enemy alien's objection to military service must be considered, and if these circumstances actually indicate disloyalty to the United States; suspension of deportation should be denied ( Matter of C----, 2146468, A.G. Oct. 1947). In the instant case there is no indication of disloyalty on the part of the respondent. He was never interned as one dangerous to our internal security.
The respondent seeks to remain in this country to support his native-born citizen wife. He exhibited a good-conduct certificate from the police department of the city of New York and affidavits of two witnesses as evidence of his good moral character during the statutory period. He has resided in the United States for more than 7 years. He is not deportable under any of the provisions of law specified in section 19 (d) of the Immigration Act of 1917, as amended. We are of the opinion that the record merits the exercise of discretion in order that his native-born citizen wife may continue to enjoy the support and comfort of her husband.
Suspension of Deportation — Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the alien is not ineligible to naturalization in the United States;
(2) That the alien has been of good moral character for the preceding five years;
(3) That the alien has resided continuously in the United States since May 9, 1940, and his deportation would result in serious economic detriment to his wife, a native-born citizen of the United States;
(4) That after full inquiry no facts have been developed which would indicate that the alien is deportable under any of the provisions of law specified under section 19 (d) of the Immigration Act of 1917, as amended.Suspension of Deportation — Conclusion of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That the alien is eligible for suspension of deportation under the provisions of section 19 (c) (2) of the Immigration Act of 1917, as amended.Order: It is ordered that deportation of the alien be suspended under the provisions of section 19 (c) (2) of the Immigration Act of 1917, as amended.
It is further ordered, That the order entered by the Assistant Commissioner of October 1, 1948, be and the same is hereby withdrawn.
It is further ordered, That if during the session of the Congress at which this case is reported, or prior to the close of the session of the Congress next following the session at which this case is reported, stating in substance that it favors the suspension of such deportation, the proceedings be canceled upon the payment of the required fee and that the alien be charged to the quota of Italy.