A-5678905
Decided by Central Office November 27, 1950 Decided by Board August 20, 1951 Decided by Acting Attorney General August 30, 1951
"Neutral alien," who claimed exemption from service in U.S. armed forces — Ineligibility to U.S. Citizenship — Sec. 3 (a) of Selective Training and Service Act of 1940 — Admissibility of lawfully admitted immigrant seeking readmission on return from temporary visit abroad — Sec. 13 (c) of the Immigration Act of 1924 — Exercise of Seventh Proviso relief in such a case to waive a criminal bar to readmission — Sec. 3 of the Immigration Act of February 5, 1917.
A lawfully admitted alien returning from a temporary visit abroad in Jan., 1950 may, in a proper case, be granted relief under the seventh proviso to Section 3 of the Immigration Act of Feb. 5, 1917 to waive a criminal bar to readmission, notwithstanding his having rendered himself ineligible to citizenship under Sec. 3 (a) of the Selective Training and Service Act of 1940 by filing on March 8, 1945, D.S.S. Form 301 claiming exemption as a neutral alien, from service in the U.S. armed forces (See Sec. 13 (c) of the Immigration Act of 1924.)
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917 — Admits crime prior to entry — Grand larceny.
Act of 1917 — Convicted of crime prior to entry — Grand larceny.
BEFORE THE CENTRAL OFFICE
(November 27, 1950)
Discussion: Upon consideration of the entire record, the findings of fact and conclusion of law made by the board of special inquiry and read to the alien on February 1, 1950, are hereby adopted except that finding of fact (6) and the conclusion of law are amended to show the alien was convicted of two charges of grand larceny and finding of fact (7) is amended to show the alien was legally admitted to the United States for permanent residence, to wit:
Finding of Fact:
(6) That on December 17, 1937, on pleas of guilty, you were convicted on two charges of grand larceny and sentence was deferred; that on November 4, 1939, you were sentenced to 3 months' probation and fined $50 and compelled to pay costs in the sum of $50 on one charge and on the other charge, you were placed on probation for a period of 3 months to run concurrently with the probationary period on the first charge.
(7) That you were lawfully admitted to the United States for permanent residence at New York, N.Y., on April 3, 1928; and that you resided in the United States continuously until your departure for Ireland on August 17, 1949.Conclusion of Law: That under section 3 of the Immigration Act of 1917, you are inadmissible to the United States as an alien who admits the commission and conviction of a crime involving moral turpitude prior to entry, to wit: grand larceny, grand larceny.
An appeal was taken but no formal exceptions were filed.
The applicant is a 40-year-old married male, a native and citizen of Ireland, who arrived at the port of New York on January 13, 1950, and sought admission to resume his permanent residence. He was excluded by a board of special inquiry on the grounds stated above by reason of his convictions on pleas of guilty on December 17, 1937, on two charges of grand larceny.
Larceny in any of its forms involves moral turpitude, Tillinghast v. Edmead 31 F. (2d) 81 (C.C.A. 1, 1929). The alien's convictions on pleas of guilty on December 17, 1937, therefore involve moral turpitude and he is excludible under the Immigration Act of 1917 as one who admits and who has been convicted of crimes involving moral turpitude prior to entry.
Since the alien has established that he was returning after a temporary absence, to an unrelinquished United States domicile of 7 consecutive years, consideration will be given as to whether the discretion to admit him under the 7th proviso to section 3 of the Immigration Act of 1917, as amended, should be exercised.
The applicant was lawfully admitted to the United States for permanent residence on April 3, 1928. He resided in the United States continuously until August 17, 1949, when he departed for Ireland with the purpose of visiting his sick father. He alleges that he married one time; that his wife is a citizen of the United States; and that he has a 15-year-old daughter who is a citizen of the United States. The alien alleges that he resides with his wife and daughter. The record reveals that the alien was arrested only once and that the arrest occurred on December 16, 1935, and was in connection with the grand larceny charges.
Report of the Identification Division of the Federal Bureau of Investigation reveals no derogatory information other than the arrest previously mentioned. Reports of local police authorities having jurisdiction over the localities where the alien has resided while in the United States, reveal no derogatory information other than the arrest in 1935. Independent character investigations conducted by this Service covering the past 7 years, reveals that all persons interviewed who knew the alien commented favorably concerning him. These witnesses include neighbors and employers. The alien's good moral character is established by the record.
The record reveals that the alien filed an application for relief from military service (DSS Form 301) with his local Selective Training and Service Board on March 8, 1945. The alien testified that his reason in seeking relief from military service was the thought he had at that time of returning to Ireland to reside there with his family. The alien now testifies that he has given up any thought of returning to Ireland for permanent residence and that he would fight for the United States. The independent character investigation previously referred to reveals that seven persons who have known the alien for at least the past 4 years felt that he appeared to be a person who is loyal to the United States.
The applicant owns his own home. The family assets total about $1,300 in cash and he has equity of about $14,000 in two pieces of property. He is employed as a photographer and earns over $50 a week. His present employer states that the applicant will be paid $60 a week upon his return to employment and that the applicant is an honest person who has been entrusted with responsibility of banking the revenues taken in by three photo studios. His employer considers his character of the best and the alien's personal life above reproach.
The alien testified that his convictions for grand larceny occurred out of transactions where the alien supplied a customer with certain goods owned by the firm by which the alien was employed without invoicing the goods properly and that the purpose of not invoicing the goods was, in effect, to extend the customer additional time to pay the bills. The information filed in connection with the arrest reveals the alien supplied certain goods of his employer to another person over the period of a year. The alien testified that he has made restitution in the amount of $600 which was involved in connection with the larcenies.
It is for the executive to determine under the foregoing facts whether administrative discretion is properly to be invoked to enable this otherwise inadmissible alien to rejoin his American citizen-wife and 15-year-old, native-born daughter, resume his residence of 22 years' standing, where he owns a home and other property, and continue a mode and manner of living and gaining of livelihood which he has followed through all of his adult life.
It is to be observed that the subject has placed himself, by his voluntary action on March 8, 1945, in obtaining relief from military service as a neutral alien through executing DSS Form 301 before his local board, in a class made ineligible to citizenship. Section 3 (a), Selective Training and Service Act of 1940, 50 U.S.C. 303 (a) provides, as to those making such application, "but any person who makes such application shall thereafter be debarred from becoming a citizen of the United States * * *." The application which this subject executed under oath contained this sentence: "I understand that the making of this application to be relieved from such liability will debar me from becoming a citizen of the United States."
Having thus placed himself voluntarily and with full knowledge in such position with reference to his adopted country, he must be prepared to meet the consequences of his action.
One disability imposed upon aliens ineligible to citizenship is inadmissibility to the United States (sec. 13 (c), Immigration Act of 1924, 8 U.S.C. 213 (c)), unless, "admissible as a nonquota immigrant under the provisions of subdivisions (b), (d) or (e) of section 4, * * *." At the present the applicant is within the first exception, being a "lawfully admitted" immigrant "who is returning from a temporary visit abroad" (sec. 4, act of 1924, 8 U.S.C. 204).
Section 28 of the 1924 act, supplying "General Definitions," was amended, as to subsection (c) (8 U.S.C. 224) by defining the term "ineligible to citizenship" in an act approved October 29, 1945 (P.L. 205, 79th Cong.), to take note of various changes in the statutes and particularly the Selective Training and Service Act of 1940 which followed the World War I Selective Draft Act of similar import theretofore referred to in section 28 (c), and repealed by section 504 of the Nationality Act of 1940 ( 8 U.S.C. 904).
When such amendatory bill (H.R. 390) of the 79th Congress, was before the United States Senate, its committee on immigration, reporting favorably, made the following comment, pertinent here (Senate Reports, 79th Cong., 1st sess., 1945, vol. 3, Calendar No. 636, Report No. 633, October 9, 1945):
The section involved was not appropriately amended when certain laws were enacted, such as * * * the enactment of the Selective Training and Service Act giving neutral aliens authority to decline service under the act, but providing that such persons should never thereafter be eligible to naturalization. The committee is of the opinion that any person who declined to serve in the United States armed forces during the war on the ground of being a citizen of a neutral country should not only be denied the right of naturalization but if he leaves the United States he should, likewise, be denied the right of ever returning to this country. The inclusion of the reference to the Selective Training and Service Act in Section 28 (c) removes any doubt that these persons might be permitted to reenter the United States. [Italics supplied.]
Report No. 346 of House Reports, 79th Congress, first session, March 20, 1945, relating to H.R. 390, presents no similar comment, nor does it in fact consider the various amendments other than generally, except to enroll a letter from the Attorney General.
The Senate committee's remarks, because of the exception previously noted to the general proscription of section 13 (c) of the 1924 act as to aliens "ineligible to citizenship," may be construed as applying literally only to those aliens who were not legally admitted immigrants, or who, after departure, were not returning merely from a "temporary visit abroad," and therefore as not reaching the present case. The language employed, however, does not seem to recognize such qualification, couched as it is in sweeping terms, to the effect that such a claimant "if he leaves the United States" should "be denied the right of ever returning to this country." The expression stands, therefore, as an index of the legislative will, or statement of policy, to be observed when these neutral alien claimants of exemption from military service seek to reenter the United States.
Manifestly, such expression does not alter the effect of the unambiguous provisions of the law which, as has been found here, do not render the applicant inadmissible by reason of his claim of such exemption. Such expression, however, is considered to be a measure of the latitude to which administrative discretion may properly extend in relaxing other excluding provisions of the statute in behalf of such claimants who have placed themselves in the class of aliens "ineligible to citizenship."
It is concluded, for the foregoing reason, that the present case does not warrant a favorable exercise of administrative discretion to relieve the applicant of the disability which has attached by reason of his convictions of the offenses of grand larceny on December 17, 1937, in the Circuit Court of Genesee County, Mich. The excluding order will therefore be affirmed.
Order: It is ordered that the excluding decision of the board of special inquiry be affirmed.
Discussion: This case is before us on appeal from an order of the Assistant Commissioner excluding the subject alien from admission to the United States on the above stated charges and denying his readmission under the 7th proviso to section 3 of the Immigration Act of 1917.
The alien, male, 42 years of age, a native and citizen of Ireland, arrived at the port of New York on January 13, 1950, and sought admission to resume residence. He was excluded by a Board of Special Inquiry because of conviction upon his plea of guilty in December 1937 on two charges of larceny. The record shows that the alien was admitted to this country for permanent residence on April 3, 1928. He resided in the United States continuously until August 17, 1949, when he departed for Ireland for the purpose of visiting his father who was ill. He is married to a United States citizen and is the father of a citizen daughter about 15 years of age. Appellant resides with his wife and daughter.
The Assistant Commissioner has considered the question of whether the alien should be admitted under the discretionary relief contained in the 7th proviso to section 3 of the Immigration Act of 1917. The appellant is returning to an unrelinquished domicile of more than 7 years. His family resides here. Except for the offense which forms the basis of inadmissibility, he has no criminal record. He has established good moral character. He is well regarded in his community and by his business associates.
The Service has declined to authorize exercise of the 7th proviso to section 3 of the act of 1917. The alien on March 8, 1945, executed DSS Form 301 before his local draft board and thereby obtained relief from military service as a neutral alien. By so doing, the alien placed himself within a class ineligible to United States citizenship. The Service argues that, once having placed himself voluntarily in such class, the alien must be prepared to meet the consequences of his action. The Service points out that one disability imposed upon aliens ineligible to citizenship is inadmissibility to this country (sec. 13 (c), Immgration Act of 1924, 8 U.S.C. 213 (c)) unless "admissible as a nonquota immigrant under section 4 (b), (d) or (e)." The subject is within subsection (b) since he is a lawfully admitted immigrant who is returning from a temporary visit abroad. He is in possession of a passport valid to April 5, 1954; and, he surrendered a permit to reenter which was valid to July 25, 1950. He is not inadmissible to this country.
The Service refers to a report of the Senate immigration committee made when considering amendatory legislation (H.R. 390 of the 79th Cong.), defining the term "ineligible to citizenship." That committee was of the opinion that a person declining to serve in the United States armed forces on the ground of being a citizen of a neutral country should not only be denied the right of naturalization, but if he leaves the country, he should likewise be denied the right of ever returning. The Service points out that the remarks might be construed as applying literally only to those who were not legally admitted immigrants or who were not returning merely from a temporary visit abroad. The Service concedes that such would not reach the present case, but should stand as an index of the legislative will, or statement of policy, to be observed when an alien claiming exemption sought to reenter the United States.
The reasoning, as stated above, when used by the congressional committee, related only to eligibility to citizenship, not to relief under the 7th proviso. We do not believe such reasoning should be applied here. The penalty prescribed by law by filing a Form 301 is ineligibility to citizenship. Another — exclusion — should not be added. Our laws permit a reentry of ineligibles lawfully admitted to this country who return from a temporary visit abroad. Suspension of deportation has been granted where an alien refused to serve in the United States armed forces. Matter of G----, A-2146468 (October 9, 1947); and to certain aliens, Japanese, etc., who are ineligible to citizenship. It is our conclusion that the appeal should be sustained and the alien admitted under the 7th proviso.
Order: It is ordered that pursuant to the discretion contained in the 7th proviso to section 3 of the Immigration Act of 1917, the alien be admitted to the United States for permanent residence at New York, N.Y., notwithstanding his inadmissibility as one who admits the commission of and was convicted of a crime involving moral turpitude, to wit: Grand larceny, committed in 1935, subject to revocation in the discretion of the Attorney General, after hearing, if the alien hereafter commits any crime.
In accordance with the provisions of Title 8, Code of Federal Regulations, section 90.12, this case is certified to the Attorney General for review of this Board's decision.
The decision and order of the Board of Immigration Appeals dated August 20, 1951, are hereby approved.