A-4964792
Decided by the Board February 12, 1953
Section 212(c) relief: Eligibility for advance exercise, 7 years' residence after lawful admission.
(1) To be eligible for the advance exercise of relief under section 212(c) of the Immigration and Nationality Act of 1952 it must be established that the alien has had or will be returning to an unrelinquished domicile in the United States of at least 7 consecutive years following his lawful admission for permanent residence.
(2) An alien who adjusted his status to that of a lawful permanent resident in 1949, although having residence in the United States continuously since 1941, is not qualified for the benefits of section 212(c), since he would not be returning to a lawful unrelinquished domicile of 7 consecutive years.
BEFORE THE BOARD
Discussion: The case comes forward on appeal from the order dated January 14, 1953, of the district director, San Francisco district, denying the alien's application for advance exercise of the discretion contained in section 212(c) of the Immigration and Nationality Act.
The applicant is a native of Germany, presently stateless, 48 years old, male, who has resided in the United States since 1941. He was previously under deportation proceedings and on April 26, 1949, this Board withdrew the outstanding order and warrant of deportation and granted him the privilege of voluntary departure in lieu of deportation together with preexamination and the advance exercise of the 7th proviso to section 3 of the Immigration Act of 1917 if the alien applied for admission to the United States within 6 months after his departure, covering the admission of the commission of a crime involving moral turpitude, to wit, perjury committed in 1940 and 1941. Pursuant to this authorization the applicant proceeded to adjust his immigration status and was lawfully admitted to the United States for permanent residence at San Francisco, Calif., on June 30, 1949. On January 21, 1952, in order to enable the alien to reenter the United States after short trips abroad in connection with his occupation as sales representative of a travel agency, the Acting Assistant Commissioner authorized the advance exercise of the 7th proviso to section 3 of the Immigration Act of 1917 to cover the admission of the commission of perjury, effective for a period of 1 year from the date of the order. It is conceded that the same favorable factors which previously prompted the exercise of the 7th proviso to section 3 of the Immigration Act of 1917 exist in the present application for discretionary relief. However, the instant application must be considered under the provisions of the new Immigration and Nationality Act (Public Law 414, 82d Cong., 2d sess., ch. 477; 8 U.S.C., 1182(c) inasmuch as the present application is dated subsequent to the effective date of the new act.
The parallel provision in the new act which replaces the 7th proviso to section 3 of the Immigration Act of February 5, 1917, is set forth in section 212(c) of the Immigration and Nationality Act of 1952 ( 8 U.S.C., 1182(c)) and provides as follows:
(c) 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 seven consecutive years, may be admitted in the discretion of the Attorney General without regard to the provisions of paragraphs (1) through (25) and paragraphs (30) and (31) of subsection (a). Nothing contained in this subsection shall limit the authority of the Attorney General to exercise the discretion vested in him under section 211(b).
By way of comparison we shall set forth the context of the previous law under the 7th proviso to section 3 of the Immigration Act of 1917:
Provided further, (7) That aliens returning after a temporary absence to an unrelinquished United States domicile of seven consecutive years may be admitted in the discretion of the Attorney General, and under such conditions as he may prescribe. (8 U.S.C. 136(p).)
As can readily be seen, the difference in phraseology which is significant involves the use in the new law of the words "aliens lawfully admitted for permanent residence" * * * and "who are returning to a lawful unrelinquished domicile of 7 consecutive years." The order of the district director points out that since the applicant has had a lawful domicile in the United States only since June 30, 1949, when he was lawfully admitted for permanent residence, that he is not eligible for consideration under section 212(c) of the Immigration and Nationality Act. In connection with his appeal the applicant argues that this provision should be construed as applying to persons who are returning to a lawful domicile and that said domicile is unrelinquished and has existed for not less than 7 consecutive years; in other words, that the word "lawful" insofar as it modifies the clause should be construed to mean returning to a lawful domicile and that the word "unrelinquished" should be construed to relate to a continuous domicile of not less than 7 years. To put it another way, the alien's contention would appear to be that inasmuch as he has a lawful permanent residence to which he is returning, and inasmuch as he has an unrelinquished domicile in the United States for more than 7 years past he satisfies the requirements of section 212(c), and that it is not necessary that the 7 years unrelinquished domicile be made up only of domicile accumulated subsequent to a lawful entry for permanent residence. This difference in conception then constitutes the issue in the case.
In order to resolve this difference, we consider it both helpful and necessary to explore the legislative background of the new act. In Senate Report No. 1515, report of the Committee on the Judiciary pursuant to Senate Resolution 137 (80th Cong., 1st sess., as amended), the following language appears:
81st Cong., 2d sess., April 20, 1950.
The suggestion was made that if the words "established after a lawful entry for permanent residence" were inserted in the 7th proviso to qualify the domicile of the alien it would effectively eliminate practically all of the objectionable features, and at the same time the Attorney General would be left with sufficient discretionary authority to admit any lawfully resident aliens returning from a temporary visit abroad to a lawful domicile of 7 consecutive years.
The subcommittee recommends that the proviso should be limited to aliens who have the status of lawful permanent residence who are returning to a lawful domicile of 7 consecutive years after a temporary absence abroad.
The report of the Committee on the Judiciary to accompany H.R. 5678 contains the following comment:
H.Rept. 1365, 82d Cong., 2d sess. (February 14, 1952), p. 51.
Under present law, in the case of an alien returning after a temporary absence to an unrelinquished United States domicile of 7 consecutive years, he may be admitted in the discretion of the Attorney General under such circumstances as the Attorney General may prescribe. Under existing law the Attorney General is thus empowered to waive the grounds of exclusion in the case of an alien returning under the specified circumstances even though the alien had never been lawfully admitted to the United States. The comparable discretionary authority invested in the Attorney General in section 212(c) of the bill is limited to cases where the alien had been previously admitted for lawful permanent residence and has proceeded abroad voluntarily and not under order of deportation.
In view of the plain language of section 212(c) of the Immigration and Nationality Act which limits the application of that section of law to aliens lawfully admitted for permanent residence who are returning to a lawful unrelinquished domicile of 7 consecutive years, together with the review of the historical background of the legislation, we come to the conclusion that this provision of law is available only to those lawfully resident aliens who are returning to an unrelinquished domicile of 7 consecutive years subsequent to a lawful entry. In other words, we construe the section to mean that the alien must not only have been lawfully admitted for permanent residence but must have resided in this country for 7 consecutive years subsequent to such lawful admission for permanent residence; and that not only the admission must be lawful but that the period of residence must be lawful. Under this view this respondent is not eligible for consideration for advance exercise of discretion contained in section 212(c) of the Immigration and Nationality Act inasmuch as he does not have a lawful residence in this country of 7 years. The applicant's only recourse in the instant case would appear to be the granting of a Presidential pardon to cover the ground of inadmissibility or to wait until after he has become a naturalized citizen. In this latter connection it is to be noted that the alien will have the necessary 5 years residence on and after June 30, 1954.
Order: It is ordered that the appeal be and the same is hereby dismissed.