A-9187191
Decided by Board December 10, 1945.
Seaman — Deportation charge — Immigration Act of 1924 — Deportation charge — Immigration Act of 1917 (other than criminal) — Procedure under section 34 of the act of February 5, 1917.
A seaman, who last entered the United States as such and remained longer than permitted, was found deportable on that ground in warrant proceedings under Sections 14 and 15 of the Immigration Act of 1924; but the charge in the same warrant proceedings that he was deportable under section 19 of the act of February 5, 1917, because at the time of his last entry he was excludable under Section 3 of the act of February 5, 1917, as an alien afflicted with constitutional psychopathic inferiority, was not sustained because proceedings as to such charge should have been held under section 34 of the act of February 5, 1917, before a Board of Special Inquiry, it being noted that 3 years had not elapsed between the time of his last entry and the institution of warrant proceedings.
CHARGES:
Warrant: Act of 1924 — Admitted seaman, remained longer.
Act of 1917 — Constitutional psychopathic inferiority at time of entry.
BEFORE THE BOARD
Discussion: Upon consideration of all the evidence of record, the findings of fact and conclusions of law proposed by the Commissioner on October 22, 1945, are hereby approved except for Conclusion of Law (2) which is amended to read as follows:
(2) That under section 19 of the act of February 5, 1917, the respondent is not subject to deportation on the ground that he was a person of constitutional psychopathic inferiority at the time of entry.
The Central Office of the Immigration and Naturalization Service, on the basis of U.S. ex rel Cateches v. Day (45 F. (2d) 142 (C.C.A. 2-1930)), affirmed in 283 U.S. 51 (1931), has taken the position that the 1917 act charge is sustained notwithstanding that the provisions of section 34 of that act were not followed. We disagree. The Cateches case cited by the Central Office only involved the question of whether an alien seaman could be deported under the 1924 act without observing the provisions of section 34 of the 1917 act. It was not concerned with a deportation charge based upon the 1917 act, as is the instant case. The quotation from the circuit court's opinion appearing in the memorandum of the Central Office in which mention is made of section 19 grounds of deportation does not relate to the Act of February 5, 1917, but rather to section 19 of the 1924 act.
It is our opinion that when a ground of deportation based on the 1917 act is urged, other than a criminal ground, the provisions of section 34 of the 1917 act must be followed, and this is so whether a ground of deportation based on the 1924 act is also involved in the case. Our holding in this case is contrary to what we said in Matter of A----, 56031/494, July 18, 1942. That holding is necessarily overruled. Since this alien is deportable under the 1924 act no useful purpose would be served by ordering the case reopened in order to follow the procedure set forth in section 34. We shall direct the alien's deportation solely on the warrant charge based on the Immigration Act of 1924.
See 1 IN Dec. 290.
Order: It is ordered that the alien be deported to the Netherlands East Indies, at Steamship expense if practicable, otherwise at Government expense, on the following charge:
That he is in the United States in violation of the Immigration Act of 1924, in that after admission as a seaman he has remained in the United States for a longer time than permitted under said act or regulations made thereunder.