55915/701
Decided by the Board December 6, 1943. Approved by the Attorney General January 28, 1944.
Seventh Proviso to section 3, Immigration Act of 1917-7 years' domicile.
When an alien has had 7 years' actual residence in the United States, followed by a departure under a warrant of deportation, such deportation, in and of itself, does not operate to terminate his domicile in the United States and preclude him from consideration under the seventh proviso to section 3 of the Immigration Act of 1917, as amended. Matter of S---- (55872/461) and Matter of P---- (55973/653) distinguished.
APPLICATION: For advance exercise of the seventh proviso to section 3 of the Immigration Act of 1917.
FOUND INADMISSIBLE:
Act of 1917 — Convicted of crime involving moral turpitude — perjury.
Mr. Peter F. Snyder, of Washington, D.C., for the applicant.
STATEMENT OF THE CASE: The applicant, a native and citizen of Rumania, 35 years of age, divorced, entered the United States on October 23, 1929, at New York City on the S.S. Emile Francqui as a member of the crew. On February 25, 1937, he was ordered deported under the Immigration Act of 1924 on the charge that he had remained in the United States for a longer time than permitted. On March 8, 1937, the alien's request for permission to reship under the order of deportation was granted.
The case was again considered, and the order was reaffirmed on December 22, 1937. On September 15, 1938, execution of the order was deferred pending attempts to obtain a private bill suspending deportation. On October 19, 1938, the stay of execution was terminated. On May 19, 1939, the order was amended to permit voluntary departure under the warrant of deportation to islands in the Western Hemisphere. On July 12, 1939, a request to reopen the case and for voluntary departure and preexamination was denied. On February 23, 1940, the alien departed voluntarily under the warrant of deportation on the S.S. Mexico. On August 1, 1940, he sought permission to reapply for admission to the United States, which was denied on August 26, 1940, without prejudice to an application at the expiration of a year from the date of deportation. A request for reconsideration was denied without prejudice on November 8, 1940. On April 12, 1941, permission to reapply was denied on the merits. Reconsideration was requested and the alien's wife and attorney were accorded a hearing on April 18, 1941. The denial was reaffirmed on April 24, 1941. A further hearing was held on May 9, 1941, and the order of denial reaffirmed on June 13, 1941. The request for permission was renewed on September 8, 1941, hearing held the following day and on October 10, 1941, the order of denial again reaffirmed.
On April 14, 1942, permission was sought again and a hearing accorded on December 4, 1942. Commissioner Harrison directed that permission be granted on February 6, 1943, and on August 7, 1943, a formal order was entered to that effect by the Exclusion and Expulsion Section of the Immigration and Naturalization Service. Thus, there was removed as a ground for his exclusion the fact of his previous deportation. See section 1 (a) of the act approved March 4, 1929, as amended.
It appears, however, that even if the applicant obtains the appropriate documents required to admit him under the Immigration Act of 1924, he will be inadmissible under section 3 of the Immigration Act of 1917 as an alien who has been convicted of a crime involving moral turpitude, to wit: perjury. He was convicted of that crime on September 10, 1936, by the Federal Court of New York.
It is well settled that perjury is a crime involving moral turpitude. Masaichi Ono v. Carr, 56 F. 2d 772 (1932); Kaneda v. United States, 278 F. 694 (C.C.A. 9, 1922), cert. denied 259 U.S. 583; 37 Op. Atty. Gen. 293. The applicant's attempts to obtain a pardon have failed. He has also been unsuccessful in obtaining relief through Congress.
The issue presented is whether the applicant is eligible for consideration under the seventh proviso to section 3 of the Immigration Act of 1917 under which "aliens returning after a temporary absence to an unrelinquished United States domicile of 7 consecutive years may be admitted in the discretion of the Attorney General." We shall first consider whether the facts in the case warrant favorable action, leaving for subsequent discussion the question of the applicant's eligibility for relief as a matter of law.
DISCUSSION: It has been said of the seventh proviso that it is a humane provision to permit the readmission to the United States of aliens who have lived here a long time and whose exclusion after a temporary absence would result in peculiar or unusual hardship (S. Rept. 352, 64th Cong., 1st Sess.). Factors to be considered are (1) the social and humane problems involved, and (2) the alien's undesirability as a resident of the United States as evidenced by the crime that he has committed. And, where action under the seventh proviso is contemplated, the field of inquiry is not circumscribed. See In re L---- G---- (56040/547, approved by the Attorney General, November 29, 1940).
The applicant first came to the United States at the age of 21 and has lived here for more than 10 years. In 1936 he married a citizen of the United States whom he was compelled to leave because of his deportation. The enforced separation has led to the institution by his wife of divorce proceedings in May 1943. Since the applicant was in Cuba he could not effectively contest the proceeding, and a decree of divorce was entered upon his default on July 7, 1943. There is no issue of the marriage. That the applicant's inability to return to the United States has been the basic reason for the failure of the marriage is adequately reflected by the record. However, the applicant's mother and brother reside in the United States. His mother is a legal resident alien and his brother a citizen. He ardently desires to rejoin them. Numerous affidavits and exhibits have been presented to establish that the applicant has conducted himself in a satisfactory manner during his absence in Cuba and that he is essentially a worthy person.
With respect to the conviction that bars him from admission, the record discloses the following: The applicant left his home in Rumania during April 1929 and went to Antwerp, Belgium. After arriving in Antwerp he obtained employment on vessels sailing from that port. In October 1929 he signed on the S.S. Emile Francqui as a deckhand, and when the vessel arrived at New York on October 23 he deserted for the purpose of joining his brother in the United States. About 2 years after his entry he called at the office of an immigrant aid society to obtain information as to how he could legalize his entry. While he was waiting in the lobby for an audience he was approached by a person who was not connected with the organization. This individual offered to arrange for his naturalization upon the receipt of $400. The applicant accepted the offer and was enabled to file a declaration of intention through a spurious certificate of arrival, which was given him by the "naturalization racketeer." Subsequently an investigation was conducted, and it was ascertained that the applicant's statement as to entry was false and a warrant for his arrest in criminal proceedings was issued. On July 21, 1936, he was indicted for having committed perjury in his declaration of intention. When the case came to trial he pleaded guilty and on September 10, 1936, he was sentenced to a term of imprisonment of 30 days. Somewhat in expiation of the offense, it is urged that the applicant at the time was poorly acquainted with the English language, and that in fact he had been misled by the racketeers. The applicant also points to the assistance he gave to the Government in the prosecution and conviction of the fraudulent operators involved. We think that the continued exclusion of the applicant, solely because of this conviction, does not serve to exclude a person who is inherently unworthy of residence in the United States, and in our judgment the case warrants favorable action under the seventh proviso provided that we have the power to exercise discretion.
From 1934 to 1939 the seventh proviso was exercised in 416 cases of which 365 involved perjury charges. The Department favored extension of the privilege of voluntary departure in perjury cases when good moral character was otherwise established (H.R. 3, 77th Cong. 1st sess., hearings March 19, 1941, p. 22; testimony of Mr. Holtzoff). See also memorandum of Mr. Prichard, May 12, 1941, In re M---- K---- (56059/889) approved by the Attorney General.
It is not disputed that at the time the applicant departed from the United States he had achieved a domicile of 7 consecutive years. The crucial point is whether in view of his departure under a deportation warrant in 1940 it can be held that as contemplated by the seventh proviso his domicile is "unrelinquished" and his absence "temporary" under the rationale of the P---- case (55973/653, June 4, 1941) and of the S---- case (55872/461) [ see page 376, this volume] decided by the Attorney General, February 1, 1943.
A memorandum of the Attorney General, in connection with this proceeding, addressed to Commissioner Harrison and dated June 28, 1943, states in part:
The question now presented relates to the applicability of the proviso to aliens who did actually live here 7 years and left the country after the entry of exclusion orders against them — raising the questions whether the domicile is to be regarded as "unrelinquished" and the absence "temporary" within the contemplation of the statute.
This latter question was not present in the P---- case or in the S---- case and has not been considered by the Attorney General.
The Assistant Commissioner in Charge of Adjudications and the Acting General Counsel of the Immigration and Naturalization Service are of the opinion that the instant case is distinguishable, and the latter believes that the subject's domicile has not been terminated by deportation. We agree with this conclusion.
For the reasons set forth in the C---- case (56127/820) [ see page 631, this volume], decided and certified this day, and for the reasons set forth hereinafter, we are of the opinion that the S---- case should be reconsidered and reversed, that domicile as employed in the seventh proviso means an individual's home, that the general legal definition of the term and that utilized in common accepted usage are one and the same, and that it is so used in the seventh proviso. This definition does not require continual physical presence once a domicile is acquired by actual residence and the intent to make one's home in the United States. Temporary absences for various causes are permitted.
This alien came to the United States in 1929 and acquired a domicile of choice here. When a domicile is once so established it continues, according to American law, until another is established. He has not established another, and a compulsory departure from the United States as a result of deportation proceedings does not effect a change of domicile.
AMERICAN LAW INSTITUTE. RESTATEMENT OF THE LAW OF CONFLICT OF LAWS. 1936. St. Paul, Minn. (sec. 23); BEALE, JOSEPH H. A TREATISE ON THE CONFLICT OF LAWS. 1935. vol. I, 645 pp. New York (at p. 181); STORY, JOSEPH. COMMENTARIES ON THE CONFLICT OF LAWS. 1883. Ed. 8, 903 pp. Boston (at p. 53); Petition of Oganesoff, 20 F. 2d 978 (S.D., Calif., 1927).
In finding a change of domicile, where free choice is indispensable, the existence of any compulsion that prevents the exercise of choice is, therefore, incompatible with the securing of a domicile by choice * * *.
* * * Residence in a place, to produce a change of domicile must be voluntary. If, therefore, it be by constraint or involuntary, as by banishment, arrest, or imprisonment, the antecedent domicile of the party remains.
The rule is stated by Keenan as follows:
KEENAN, KOSSUTH KENT. TREATISE ON RESIDENCE AND DOMICILE. 1934. Rochester, N.Y. 981 pp. (at p. 378).
It is a principle of universal application that involuntary and compulsory banishment does not deprive one of his domicile, especially if an intention of abandoning the former domicile is shown and the intention of eventually returning is manifest.
Deportation is banishment or exile from the United States. James Madison, in his report on the Virginia Resolutions, in speaking of the Alien Act of 1798, described deportation as "the banishment of an alien from a country into which he has been invited as the asylum most auspicious to his happiness." In Fong Yue Ting v. United States, 149 U.S. 698 (1893), Justice Brewer described the deportation process as one where an alien is "forcibly taken away from home, and family, and friends, and business, and property, and sent across the ocean to a distant land * * *." In the case of Ng Fung Ho v. White, 259 U.S. 276 (1922), the court pointed out that deportation "may result also in loss of both property and life; or of all that makes life worth living."
"Deportation means banishment" Report on the Enforcement of the Deportation Laws of the United States, National Commission on Law Observance and Enforcement (No. 5, p. 149, May 27, 1931). "Thus deportation becomes as to aliens who have established a domicile here a decree of perpetual banishment and exile — regardless of fixed family and business ties and connections; and it more clearly carries a heavy burden of `possible human woe'" ( Browne v. Zurbrick, 45 F. 2d 931 (C.C.A. 6, 1930)).
The Restatement of the Law of Conflict of Laws contains the following rule:
AMERICAN LAW INSTITUTE (ch. 2, sec. 21, p. 40), supra, see footnote 3. See also: WHARTON, FRANCIS. TREATISE ON THE CONFLICT OF LAWS; OR, PRIVATE INTERNATIONAL LAW. 1872. 758 pp. Philadelphia (at p. 62); DICEY, A.V. A DIGEST OF THE LAW OF ENGLAND WITH REFERENCE TO THE CONFLICT OF LAWS. 1908. Ed. 2, — pp. London (at p. 147 et seq.); and JACOBS, M.W. A TREATISE ON THE LAW OF DOMICILE. 1887. 600 pp. Boston (at p. 380).
A person cannot acquire a domicile of choice by any act done under legal or physical compulsion.
No reported judicial holding has been discovered in the United States dealing with the specific problem as to whether deportation terminates domicile. One English case Veith v. Veith, 73 Sol. J. 235 (1929), is directly in point, however. The question was raised as to the respondent's domicile in an undefended matrimonial action. He resided in England from 1909 to 1927. In September of 1926 he was convicted of bigamy. In 1927 he was deported on this ground and went to Czechoslovakia. In 1928 his wife petitioned for a dissolution. The court said:
Counsel for the petitioner submitted that the respondent had a domicile of choice in England. * * * Apart from the deportation order, which was revocable, there was no evidence that the respondent had changed his domicile of choice. There was authority to the effect that persons exiled, or found to have left their country against their will, like the French emigres in the Revolution, or transported convicts, could not be said to have changed their domicile ipso facto.
Bateson, J., said that the respondent only left England owing to an act of State. There was no evidence that he intended to change his domicile. He (his lordship) would therefore grant a decree, the case to be put in the list for decree nisi.
In Neuberger v. United States, 13 F. 2d 541 (C.C.A. 2, 1926), a German subject became domiciled in the United States in 1903. He left in 1914 with his family for a temporary absence in Germany. On war breaking out he was compelled to serve in the German Army until 1918, and it was practically impossible for him to return until 1921. It was held that this absence was not inconsistent with the "5 years' continuous residence" required by our naturalization laws. The court by Judge Hand stated:
Judge Hough dissented on the ground that the petitioner had not carried the burden of proof. He stated, however: "With the law as stated by Judge Hand I entirely agree * * *." On certification as to jurisdiction, the case was affirmed in 270 U.S. 568.
Absence or absences may be, and, when voluntary, generally are, a controlling test, but only as evidence of the alien's state of mind towards the place of supposed residence. Of themselves they are immaterial, once the residence is established; in this, residence is like domicile. Were it not so, the rule must have been that any absence is fatal to continuous residence, which is contrary to all the books. In re An Alien, F. Cas. No. 201a; In re Schneider, (C.C.) 164 F. 335; United States v. Rockteschell, 208 F. 530, 125 C.C.A. 532 (C.C.A. 9); In re Deans (D.C.) 208 F. 1018; Id., 230 F. 957, 145 C.C.A. 151 (C.C.A. 8); In re Timourian (D.C.) 225 F. 570; United States v. Jorgenson, 241 F. 412; In re Reichenburg, 238 F. 859; United States v. Cantini, 212 F. 925, 129 C.C.A. 445 (C.C.A. 3); United States v. Mulvey, 232 F. 513, 146 C.C.A. 471 (C.C.A. 2).
We shall not try to define what is the necessary attitude of mind to create or retain a residence under this statute, and how it differs from the choice of a "home," which is the test of domicile. Frankly it is doubtful whether courts have as yet come to any agreement on the question. But there is substantial unanimity that, however construed in a statute, residence involves some choice, again like domicile, and that presence elsewhere through constraint has no effect upon it.
To the same effect, see Stadtmuller v. Miller, 11 F. 2d 732 (C.C.A. 2, 1926), where it was held that domicile in the United States was not lost when an alien was prohibited from leaving Germany during a visit there. The plaintiff was, therefore, permitted to sue the Alien Property Custodian.
In Hardy v. De Leon, 5 Texas 211 (1849), one Sylvester De Leon was removed from his home by the military authorities of Texas. Holding that he retained his domicile and citizenship, the court said at page 235:
Whatever may have been the object of the authorities, in removing Sylvester De Leon and others from their homes in Texas, however humane the motive, it cannot be denied that the effect upon the persons so removed was a temporary banishment from their country and homes. It was such a change of residence as did not effect a change of the national domicil of those persons. Sylvester De Leon does not appear ever to have acquired another domicil elsewhere; and we have seen that the original domicil remains until a new one shall have been acquired animo et facto * * *. (Story's Comm. Const. 565; 2 Kent, Com. 230 n.). He does not appear, at any time, to have manifested an intention to abandon his home in Texas, on the contrary, he left it involuntarily, and with a view of a mere temporary absence; and he persevered until his death, in his efforts to regain it.
In De Bonneval v. De Bonneval, 1 Curt Eccle. 857, 163 Eng. Reprint 297 (1838), the testator came to England because of the French Revolution and remained until 1814. It was held that he nevertheless retained his domicile in France, the court saying:
It is clear to me that, as in the case of exile, the absence of a person from his own country will not operate as a change of domicil, so where a party removes to another country to avoid the inconveniences attending a residence in his own, he does not intend to abandon his original domicil or acquire a new one in the country to which he comes to avoid such inconveniences. At all events, it must be considered a compulsory residence in this country; he was forced to leave his own, and was prevented from returning till 1814. * * * I am of opinion that a continued residence in this country is not sufficient to produce a change of domicil; for he came here avowedly as an emigrant, with an intention of returning to his own country as soon as the causes ceased to operate which had driven him from his native home.
In Folger v. Slaughter et al., 19 La. Ann. Rep. 323 (1867), the defendants removed temporarily to another parish to avoid the dangers of cannon fire during the Civil War. It was held that:
Persons who, like the defendants, during the late commotions, had to leave their domiciles and undergo temporary exile, during which they have constantly evinced the will and intention to return to their long established homes, should not be deemed to have changed their domiciles * * *.
A prisoner, being under legal restraint, cannot acquire a domicile in his prison, and his former domicile continues. The language of these cases, set forth below, is particularly applicable to the instant case.
Whether the word "residence" be taken in the sense of domicile or of abode, it implies a place where the party is situated through choice * * * ( American Surety Co. v. Cosgrove, 40 Misc. 262, 81 N.Y. Supp. 945 (1903)).
As a general rule of law persons under legal disability or restraint or persons in want of freedom are incapable of losing or gaining a residence by acts performed by them under the control of others. There must be an exercise of volition by persons free from restraint and capable of acting for themselves in order to acquire or lose a residence ( Millet v. Pearson, 143 Minn. 187, 173 N.W. 411 (1919)).
* * * residence and abandonment are each determined in part by intention, and it cannot be said that the enforced absence of a settler by compulsion of the law from his established residence carries with it the intention to establish a home in the place of his confinement or the intention to abandon that from which he has been unwillingly removed. * * * abandonment is something more than the relinquishment of possession. It must be voluntary relinquishment united with an intention to abandon ( Huffman v. Smyth, 47 Oreg. 573, 84 Pac. 80 (1906)).
Absences for purposes of business or pleasure, or by reason of sickness which might be as compulsory as imprisonment, so far as the power of the individual to return is concerned, do not interrupt a residence so as to prevent gaining a settlement ( Baltimore v. Chester, 53 Vt. 315, 320 (1881)).
It is hardly necessary to add that the domicile of the father was in Idaho. His physical presence in Nevada, in response to legal process and against his will, could not affect the domicile of his choice in this State ( Duryea v. Duryea, 46 Idaho 512, 521 (1928)).
And such place of residence or usual abode, is not changed or abandoned, by a constrained removal, as by imprisonment. Such is the law in regard to national domicil; and we think its principles applicable to domestic residence ( Grant v. Dalliber ( 11 Conn. 234 (1886)).
Administratively, it has often been determined that deportation does not terminate domicile.
In re P---- (55796/547, January 24, 1938) is similar to the instant case. The alien entered the United States in 1924 on a fraudulent passport. He was deported and departed voluntarily pursuant to the order on February 24, 1933, leaving a wife and two American-born children here. Five years later, the Board of Review exercised the discretion provided in the seventh proviso, stating:
Composed of Messrs. Finucane, Nettleton, and Savoretti.
The record gives every reason to believe that since departure from the United States the alien has been continuously desirous of returning to the country to join his family. If authority is not granted for his readmission under the seventh proviso the alien will be perpetually barred from rejoining his family in the United States. Because of the family situation and in harmony with action taken in other cases involving a similar violation of law it is believed that the application made should be granted.In re W---- (56021/11) the alien resided here continuously from 1892 to 1937. He had a wife, four American-born children, and nine grandchildren in the United States. On October 27, 1938, he was ordered excluded. He was not in possession of a visa, and he had been convicted and given a suspended sentence for embezzling two checks and using the funds to save his daughter's life when she was struck by an automobile. It was held on November 7, 1939, that despite the excluding decision the alien was a returning legal resident, and no visa was necessary. As the subject had an unrelinquished domicile of more than 7 years, the seventh proviso was exercised.
We regard the case of In re D---- (55632/163, July 17, 1934), as a well-reasoned opinion which states the correct principles of law applicable to the present situation. D---- was admitted to the United States on a fraudulent passport in 1922 and remained until January 21, 1933, when he was deported. Judge Wyzanski, then Solicitor of Labor, held that the case of a deported alien was analogous to that of a person who was compelled to go into exile, that Congress did not intend any penalty or forfeiture to be imposed on the deported alien, that the term domicile was used in its general legal meaning in the seventh proviso, and that the mere fact of deportation did not operate as a relinquishment or abandonment of the domicile D---- established during the period of time he resided therein.
Citing a dicta in Ennis v. Smith, 14 How. 400, 14 L.ed. 472 (1852), and White et al. v. Burnley, 20 How. 235, 15 L. ed. 886 (1857) for the proposition that the mere exile without intention to change one's domicile does not interrupt domicile.
Citing Fong Yue Ting v. United States, 149 U.S. 698, 709 (1893).
No question arose as to the soundness of the D---- opinion until the case of In re P---- (55973/653, 56096/704) was decided. Mrs. P----, a native of Canada, lived in the United States from January 1934 until April 1938 when she was deported on the ground that she admitted the commission of perjury before an immigrant inspector. Permission to reapply for admission was sought and denied by orders dated June 9, 1938, May 23, 1939, September 29, 1939, October 6, 1939, November 6, 1939, April 30, 1940, July 31, 1940, October 17, 1940, January 23, 1941. On May 6, 1941, Major Schofield, the Special Assistant to the Attorney General in charge of Immigration, referred the case to the then Assistant to the Attorney General, Mr. Maguire, on the question of jurisdiction to exercise the seventh proviso. It is to be noted that the only question before the Service was whether permission to reapply should be extended. Nevertheless Mr. Maguire ruled that deportation prevented the acquisition of a 7-year domicile. On September 5, 1941, the question before the Service was finally decided in the alien's favor, and in view of her marriage to an American citizen and the doubts that existed as to whether she had admitted the commission of perjury, she was granted permission to reapply. On March 4, 1942, this Board held that the alien had not admitted perjury and that she was admissible for permanent residence.
The Acting General Counsel for the Service now contends that the D---- opinion was not expressly overruled by the P---- case. We agree with this conclusion as we are of the opinion that the question as to whether the seventh proviso should be exercised was never before the Department, the Service, or, more properly, before this Board in the P---- case. At most, the opinion there expressed was a passing dicta as to what might be the ruling if Mrs. P----'s application for permission to reapply were granted. In view of the subsequent finding that Mrs. P---- did not admit the commission of perjury, it did not become the law of the case. Furthermore, we believe that the conclusion of Mr. Maguire is contrary to the principles of law adopted in the C---- case, and, in this opinion, and we feel that it should not be followed as a precedent.
On August 23, 1941, this Board advised Mr. Shoemaker that it would not decide the question of jurisdiction to exercise the seventh proviso as the question was not then in issue.
The recent case of H---- (55802/241, May 29, 1943) is a further illustration of the principle that deportation does not affect domicile. The alien was excluded in June 1932. He thereafter entered illegally, was apprehended and deported in July 1932. He reentered illegally again and remained here until 1941 when he visited Canada to obtain a visa. He was granted permission to reapply for admission and the seventh proviso was exercised to waive his admission of perjury in claiming that he was an American citizen. If deportation does not preclude the acquisition of a domicile of 7 years, as illustrated by the H---- case, it should not interrupt a domicile already established.
The alien in the instant case was removed by compulsion of law from an established domicile. Before the execution of the deportation order and within a few months thereafter he sought to continue his residence in the United States. He did not return to his native land but went to an island in the Western Hemisphere from whence reentry after deportation could be more readily accomplished. Repeated attempts were made since his deportation to obtain permission to reapply. He established no domicile in Cuba, for he kept knocking at the gates of this country where he desired and intended to return. All these facts manifest a clear intention on the alien's part against relinquishment of domicile. Under such circumstances his domicile of choice, the United States, remains because he amply demonstrated that it continued as the country of his choice. A compulsory departure, such as occurred in this case, does not in contemplation of law result in the forfeiture of, or change in, domicile. Such departure should be regarded as a mere absence unaccompanied by the intent necessary to establish another domicile.
Accordingly, it is decided that the seventh proviso may and should be exercised.
FINDINGS OF FACT: Upon the basis of all the evidence presented, it is found:
(1) That the applicant is an alien, a native and citizen of Rumania;
(2) That the alien entered the United States on October 23, 1929, as a member of the crew of the S.S. Emile Francqui;
(3) That the alien established his home in the United States and resided here from October 23, 1929, until February 23, 1940;
(4) That on February 23, 1940, the alien departed from the United States pursuant to an order of deportation;
(5) That from the date of his deportation to the present time the alien has desired and sought readmission to the United States;
(6) That permission to reapply for admission was granted to the alien on August 7, 1943;
(7) That the alien was convicted in September 1936 for the crime of perjury;
(8) That the alien seeks readmission for permanent residence.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 3 of the act of 1917 the alien is inadmissible as one who has been convicted of a crime involving moral turpitude, to wit: perjury;
(2) That under the seventh proviso of section 3 of the act of 1917, the alien is admissible in the discretion of the Attorney General as an alien returning to an unrelinquished domicile of 7 years.
ORDER: It is ordered that the alien be admitted under the authority contained in the seventh proviso to section 3 of the Immigration Act of 1917 when in possession of appropriate documents.
The decision of the Board of Immigration Appeals is affirmed.
The seventh proviso to section 3 of the Immigration Act of 1917 (U.S.C., title 8, sec. 136 p.) reads as follows:
* * * aliens returning after a temporary absence of an unrelinquished United States domicile of 7 consecutive years may be admitted in the discretion of the Secretary of Labor [now the Attorney General], and under such conditions as he may prescribe; * * *.
The applicant, a native and citizen of Rumania, entered the United States on October 23, 1929, as a member of the crew of the S.S. Emile Francqui. On February 25, 1937, he was ordered deported under the Immigration Act of 1924 on the charge that he had remained in the United States for a longer time than permitted. On May 19, 1939, the order was amended to permit voluntary departure under the warrant of deportation to islands in the Western Hemisphere, and he left the country on February 23, 1940. Since that time there have been numerous further proceedings, involving requests for permission to reapply for admission to the United States, requests for reconsideration, etc.
While he was within this country he was convicted of perjury arising out of a false statement in a naturalization proceeding and served a sentence of 30 days. Because of this conviction he is now ineligible for readmission, except under the seventh proviso, if it is applicable.
The Board of Immigration Appeals has determined that the seventh proviso is applicable and has ordered that the alien be admitted. However, the Board has certified its decision for review by the Attorney General because of doubt concerning the effect of rulings previously made in the S---- case ( In re C---- H---- de S---- (55872/461, February 1, 1943)) and the P---- case ( In re A---- E---- M---- P---- (55973/653, June 4, 1941)). Those cases involved, respectively, a deportation and an exclusion order which barred the alien from the country before the lapse of 7 years from the time of original entry. It was concluded that the word "domicile" as used in the seventh proviso contemplated actual residence or place of abode (aside from bona-fide temporary absences, In re E---- H---- C---- (56127/820, January 14, 1944)), which could be terminated, despite any contrary intent on the part of the alien, by a deportation or an exclusion order before the 7 years had elapsed.
The case now submitted has previously had my attention and a possible distinction was noted. I quote from my memorandum of June 28, 1943, to the Commissioner of Immigration and Naturalization:
The question now presented relates to the applicability of the proviso to aliens who did actually live here 7 years and left the country after the entry of exclusion orders against them — raising the questions whether the domicile is to be regarded as "unrelinquished" and the absence "temporary" within the contemplation of the statute.
This latter question was not present in the P---- case or in the S---- case and has not been considered by the Attorney General. Therefore, in the consideration and disposition of the present cases you should not regard the question as necessarily controlled by the P---- and S---- cases.
The seventh proviso (conferring a discretion dictated by humane considerations) was intended to be available in the case of an alien who is beyond our borders and seeking readmission but is unable to meet the statutory qualifications. In some cases, at least, the alien does not know whether or not he possesses the statutory qualifications until the question has been determined by the immigration authorities. I understand it is the practice to guard against the issuance of a formal exclusion order when the alien has had 7 years' prior domicile in the United States until the question of relief under the seventh proviso has been considered. It is, nevertheless, quite possible for a final exclusion order to be issued, and thereafter a petition for relief under the seventh proviso to be submitted.
All other conditions and circumstances being the same, it does not seem to me that it makes any difference whether or not a formal exclusion order has been issued. So far as concerns the language of the statute it might well be supposed that the alien would be ordered excluded because disqualified and that thereafter he would invoke the discretion intended to be available in the event of such disqualification. The contrary view would require that we add to the statute a condition that is not expressed and that there is no apparent reason for implying.
And I perceive no reason for a different view in the case of a deportation or a "voluntary departure under warrant of deportation." Under the administrative practice (letter January 18, 1944, from the chairman of the Board), which I find no occasion to disturb, an alien of 7-years' domicile who is within the country but is subject to deportation may leave the country upon his own initiative, or pursuant to informed advice by, or with the express approval of, the immigration authorities for the purpose of invoking the seventh proviso. As in the case of an exclusion, it does not seem to me that anything in the statute or in the practice under the statute requires a conclusion that the Attorney General's discretion depends upon the formality with which the result (removal of the alien) is accomplished. The facts bearing upon relinquishment of domicile (as previously defined) must, of course, be considered.
The decision of the Board is squarely supported by an opinion of the Solicitor of the Department of Labor ( In re S---- D---- (55632/163, July 17, 1934)), which was followed in the administration of the statute until about a year ago when doubts arose because of the rulings in the P---- and S---- cases.
The Solicitor's opinion in the D---- case dealt with an alien who was deported after an unquestioned domicile of 7 consecutive years. The Solicitor held that the deportation did not effect a relinquishment of the domicile. In the opinion he indulged in certain generalities, which are undoubtedly supported by the authorities cited but are not necessarily of universal application or to be applied without regard to other evidences of legislative intent when construing a statute. The following statement, copied from the Solicitor's opinion, is illustrative.
A change of domicile can only be effected through the exercise of the volition of the person whose domicile is sought to be changed ( Harris v. Harris, 215 N.W. 661, S. Ct. Iowa).
The application of this principle was thereafter urged in the P---- and S---- cases, where the aliens had been deported or excluded before the lapse of the prescribed 7 years. It was concluded that the word "domicile" as used in the seventh proviso was not to be understood in so broad a sense, and that an alien deported or excluded before acquiring the statutory domicile of 7 years could not thereafter acquire it through lapse of time and failure on his part to concur in the legislative mandate under which he was barred from the country. However, there was no intention nor any occasion in those cases to question the result reached in the D---- case.
I have signed the decision of the majority of the Board as I am required to do so by section 90.3, title 8, Code of Federal Regulations. I am unable to agree with it.
The question is whether the seventh proviso of section 3 of the Immigration Act of 1917 may be utilized to readmit to the United States an alien who has been deported after having lived in the United States more than 7 consecutive years, assuming that by choice he has not voluntarily relinquished his United States domicile, and that his absence from the United States may be considered as temporary.
The opinion of the Attorney General in the S---- case in my judgment definitely has settled this issue and is binding on this Board. We have no power to deviate from it. Limitation or rejection of its principle is within the exclusive jurisdiction of the Attorney General.
In 1934 in the S---- D---- case, the then Solicitor of the Department of Labor held that the word "domicile" as used in the seventh proviso of section 3 should be accorded its usual legal meaning, that a domicile in the United States could not be lost except by choice and that deportation did not break the continuity of a United States domicile. In the S---- case, the Attorney General reversed the decision of this Board, and in the course of his opinion said:
In support of its decision the Board relies largely upon an opinion of July 17, 1934, of the Solicitor of the Department of Labor, construing the seventh proviso in the case of S---- D----, which concluded that domicile when once established continues until voluntarily relinquished, and that deportation of the alien from the United States does not break the continuity of the domicile. This conclusion of the Solicitor was rejected by this Department in a memorandum of June 4, 1941, in the case of A---- E---- M---- P----.
In the D---- case the alien had actually lived in the United States for more than 7 years before his deportation. He entered this country on September 20, 1922, and was not deported until January 20, 1933, more than 10 years later. In the case now before us, the alien actually lived in the United States for more than 7 years before his deportation. The Attorney General expressly overruled the D---- opinion; he did not merely modify it.
Of interest is the view of the Special Assistant to the Attorney General who drafted the memorandum of June 4, 1941, in the P---- case (referred to by the Attorney General in his decision in the S---- case). The P---- record (55973/653) contains the following memorandum dated June 10, 1941, signed by Mr. T.B. Shoemaker, then Deputy Commissioner of Immigration and Naturalization:
I talked with Mr. Holtzoff (the special assistant who prepared the memorandum of June 4, 1941) on the telephone today concerning this case. I asked him two questions: Whether in the event a person not having 7 years' residence, actual physical presence in the United States, could acquire domiciliary rights here for 7 years during absence abroad after deportation. He said the answer was "No." I then asked him whether or not in the event the person had resided in the United States for 7 years or 10 years prior to deportation, he could still be said to have any domiciliary rights, and the answer was in the negative.
Although the above memorandum is not binding on this Board, the interpretation that had been placed on the June 4, 1941, memorandum is important because I think we should assume in the absence of anything indicating the contrary that in this sense it was cited by the Attorney General in the S---- case.
Neither can I agree with the position taken by the Acting General Counsel of the Immigration and Naturalization Service that deportation on some grounds breaks domicile in the United States, while deportation on others does not. The Acting General Counsel of the Service states:
I agree with the memorandum of Mr. Holtzoff (the memorandum of June 4, 1941) on which the Attorney General acted in the case of A---- E---- M---- P---- so far as it holds that the deportation of S---- D---- terminated his domicile in the United States. His deportation was on the ground that he admitted having committed perjury prior to entry, a crime involving moral turpitude, a ground going to his permanent personal unfitness to reside in the United States. I do not agree with that memorandum if it means to hold that in every case domicile is terminated by deportation, and I doubt that it intended to do so.
In my judgment there is nothing in the immigration laws or in the opinions in the P---- and S---- cases that suggests any such distinction between a person deported on a documentary charge (as in the present proceeding), for example, and a person deported because convicted of a crime involving moral turpitude.
A comparison of the D---- case with the case now before us illustrates the unreal distinction that the Acting General Counsel of the Service attempts to draw. He states because D---- was deported on the ground that he admitted committing perjury prior to entry, his domicile in the United States terminated upon his deportation. But in the present case, he thinks domicile did not terminate upon deportation based on the lack of an immigration visa, although the alien had been convicted of perjury in the United States (not, however, a basis for deportation). The ground of inadmissibility to be waived in the D---- case was the admission of the commission of perjury; in this case it is the conviction of perjury. Based on the immigration records it seems to me capricious to say that D---- is permanently personally unfit for residence in the United States while S----, the alien in the present case, is not.
As I read the P---- and S---- cases, the concept of domicile as set forth in the D---- opinion has been specifically rejected, and I think it must be held that deportation terminates domicile. Because of the act of the Government, deportation severs the connection of the alien with the home he had established in the United States. The desires of the alien cease to have any significance.
Under the S---- and P---- opinions, I can see no escape from the doctrine that deportation on any ground and at any time terminates United States domicile. And, therefore, I am of the view that there is no power in this Board to authorize the advance application of the alien's admission to the United States, notwithstanding his conviction for the crime of perjury in September 1936.
Even if the majority of the Board agreed with my position, in view of the memorandum of the Attorney General of June 28, 1943, to the Commissioner of Immigration and Naturalization, I think the case should be certified to the Attorney General for review of the Board's decision.
Mr. Nettleton joins me in this dissent.