A-6763930
Decided by Central Office October 3, 1947 Decided by Board April 9, 1948
Married Minor Child — Entitled to benefits of act of December 28, 1945 (Public Law 271, 79th Cong.).
A married minor child of an honorably discharged citizen member of the armed forces of the United States comes within the scope of the act of December 28, 1945.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — No immigration visa.
Executive Order 8766 — No passport.
BEFORE THE CENTRAL OFFICE
Discussion: This appellant, accompanied by his brother, arrived at San Francisco, Calif., on July 3, 1947, as a passenger on the S.S. General Meigs, from China. They applied for admission into the United States for permanent residence under the provisions of the act of December 28, 1945 (Public Law 271), for permanent residence. The brother of the appellant was deemed to be ineligible under the provisions of that act because he was married in China on February 28, 1947 and, therefore, deemed ineligible for admission under the provisions of the act of December 28, 1945, supra. His claimed relationship to a father who is a United States citizen "G.I." veteran of World War II was conceded by the Board of Special Inquiry. It was also conceded that he was born in China on July 26, 1927 and that his father was naturalized in the United States on February 9, 1945.
Since the appellant was not in possession of an immigration visa and did not present a passport or other official travel document in lieu thereof issued by the Government of the country to which he owes allegiance showing his origin and identity, the Board of Special Inquiry concluded that he was subject to exclusion on the above-stated grounds.
The question to be determined is whether this appellant is eligible for admission into the United States under the provisions of the act of December 28, 1945 (Public Law 271), if otherwise eligible except for the fact that he was married on February 28, 1947, in China.
The alien's counsel contends that neither the act of December 28, 1945, nor the regulations promulgated thereunder in 8 C.F.R. 126 require that the beneficiary of such Act be an unmarried minor child. It has been held by this Service that in order for a minor child to be a beneficiary of such act, such child must be unmarried. (56013/373-A, July 9, 1946, Adjudications Division; Matter of W----, A-4463538, Dec. 31, 1946, Adjudications Divisions).
The Act of December 28, 1945 (Public Law 271) reads as follows:
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That notwithstanding any of the several clauses of section 3 of the act of February 5, 1917, excluding physically and mentally defective aliens, and notwithstanding the documentary requirements of any of the immigration laws or regulations, Executive orders, or Presidential proclamations issued thereunder, alien spouses or alien children of United States citizens serving in, or having an honorable discharge certificate from the Armed Forces of the United States during the Second World War shall, if otherwise admissible under the immigration laws and if application for admission is made within 3 years of the effective date of this act, be admitted to the United States; Provided, That every alien of the foregoing description shall be medically examined at the time of arrival in accordance with the provisions of section 16 of the act of February 5, 1917, and if found suffering from any disability which would be the basis for a ground of exclusion except for the provision of this act, the Immigration and Naturalization Service shall forthwith notify the appropriate public medical officer of the local community to which the alien is destined: Provided further, That the provisions of this act shall not affect the duties of the United States Public Health Service so far as they relate to quarantinable diseases.
SEC. 2. Regardless of section 9 of the Immigration Act of 1924, any alien admitted under section 1 of this act shall be deemed to be a nonquota immigrant as defined in section 4 (a) of the Immigration Act of 1924.
SEC. 3. Any alien admitted under section 1 of this act who at any time returns to the United States after a temporary absence abroad shall not be excluded because of the disability or disabilities that existed at the time of that admission.
SEC. 4. No fine or penalty shall be imposed under the act of February 5, 1917, except those arising under section 14, because of the transportation to the United States of any alien admitted under this act.
SEC. 5. For the purpose of this act, the Second World War shall be deemed to have commenced on December 7, 1941, and to have ceased upon the termination of hostilities as declared by the President or by a joint resolution of Congress.
The language employed in section 1 of the above act seems couched in broadest terms in regard to the child beneficiary. The regulations promulgated under Public Law 271, supra, merely speak of a minor child and thus allow for a broad area of eligiblity.
8 C.F.R. 126.1. Aliens eligible. — Notwithstanding the provisions of other parts of this chapter and pursuant to the provisions of the act of December 28, 1945, an alien other than one barred by section 13 (c) of the Immigration Act of 1924 [phrase amended: effective March 7, 1946; published 11 F.R. 2372, March 8, 1946] who at the time he applies for admission to the United States satisfies the immigration officer that the following facts exist in his case shall be admitted to the United States for permanent residence upon compliance with all the requirements of the immigration laws (including the Alien Registration Act of 1940), except those stated in 126.2:
( a) The alien is the child under 21 years of age or the husband or wife of a United States citizen who is serving in, or has an honorable discharge certificate from service in, the Armed Forces of the United States during the Second World War.
( b) The application for admission to the United States is made within 3 years of December 28, 1945.
It has been noted that the primary objective of this legislation was intended to benefit members of the Armed Forces who had married alien brides abroad, while such soldiers were serving in the Armed Forces of the United States.
House Committee on Immigration and Naturalization, House Report 1320, Seventy-ninth Congress, first session; Ninety-first Congressional Record 11921, December 10, 1945; Ninety-first Congressional Record 12529, December 19, 1945. Likewise the Committee report of House of Representatives No. 1320, Seventy-ninth Congress, first session, November 30, 1935, to accompany House Report 4857 which later became Public Law 271, also Senate Committee Report No. 860, Calendar No. 867, Seventy-ninth Congress, first session, December 18, 1945, to accompany House Report 4857, supra. Likewise, the comment of the Attorney General on December 27, 1945, to the Director of the Bureau of Budget, signed by Harold Judson, Acting Attorney General.
The beneficiaries included the veterans' alien children. There is no indication that the act of December 28, 1945, was considered separate and apart from other immigration laws. In fact, section 2 of such act reads as follows:
SECTION 2. Regardless of section 9 of the Immigration Act of 1924, any alien admitted under section 1 of this act shall be deemed to be a nonquota immigrant as defined in section 4 (a) of the Immigration Act of 1924.
Section 4 (a) of the Immigration Act of 1924 reads as follows:
When used in this act the term "nonquota immigrant" means —
( a) An immigrant who is the unmarried child under 21 years of age, or the wife, or the husband, of a citizen of the United States: Provided, That the marriage shall have occurred prior to issuance of visa and, in the case of husbands of citizens, prior to July 1, 1932.
It is clear that the appellant does not come within such definition of section 4 (a), supra, inasmuch as he is married.
If, as contended by the alien's counsel, it was intended to benefit even those who did not come within the class of beneficiaries as defined in section 4 (a) of the Immigration Act of 1924, it would follow that the alien appellant in this case should have had a petition filed on his behalf under the provisions of section 9 of the Immigration Act of 1924. This was not done.
Beneficiaries for nonquota status under section 4 (a) of the Immigration Act of 1924 or for preference quota status by reason of relationship under section 6 of the Immigration Act of 1924 have to have approval by this Service of a petition for an immigration visa on their behalf before the Consular officer is authorized to issue an immigration visa or to grant preference as the case may be.
If it were the intention of Congress to consider all persons who might be beneficiaries under section 1 of the act of December 28, 1945 to have the same status as nonquota immigrants as stated within section 2 of the act of December 28, 1945, it need not have included the phrase "as defined in section 4 (a) of the Immigration Act of 1924." The plainest and clearest conclusion to be drawn, without straining the framework of the immigration laws is that beside the beneficiaries actually set forth in 4 (a) of the Immigration Act of 1924, there was merely added the alien male spouses who were married after July 1, 1932 to a person who was or became a citizen of the United States and who was honorably serving in or was honorably discharged from United States military service during World War II. Otherwise, these persons would come under the quota (although as preference), under section 6 of the Immigration Act of 1924. The reference in section 2 of the act of December 28, 1945 to section 4 (a) of the Immigration Act of 1924 becomes significant in this light. This conclusion is borne out by the congressional spokesman for the bill which became Public Law 271 when it was before Congress and who had the understanding that this bill made no changes in the immigration laws except to expedite bringing veterans' wives and children to the United States by removing the preliminary requirements in connection with procuring the usually required documents. This conclusion is further supported by the deletion of the marriage date of the spouses (December 7, 1941) from a similar bill considered just previous to H.R. 4857 which became Public Law 271.
The conclusion reached by this Service is that the appellant is ineligible for admission into the United States under the provisions of the act of December 28, 1945 (Public Law 271) because he is a married person, having married in China on February 28, 1947, prior to his embarkation to come to the United States for the first time. This conclusion appears to be consistent with all of the relevant material available to this Service which sheds any light on congressional intent in regard to making alien spouses and alien children beneficiaries under the act of December 28, 1945.
Recommendation: It is recommended that the excluding decision of the Board of Special Inquiry be affirmed without prejudice to the alien's reapplication for admission into the United States when in possession of the appropriate documents.
So ordered.
Discussion: This case is before us on appeal from an order of the Acting Commissioner excluding appellant on the grounds above stated. The issue raised by the appeal is whether a married minor child of an honorably discharged citizen member of the armed forces comes within the scope of Public Law 271.
The Attorney General on April 7, 1948, approved the decision and order of this Board holding that an adopted child is within the scope of Public Law 271. Matter of W---- M---- S----, 6591246; Matter of W---- O---- W----, 6591247.* In our decisions we concluded that the definitions in the Immigration Act of 1924 did not apply to Public Law 271. On the basis of our reasoning in those cases and on the basis of the Attorney General's decision approving our orders and decisions, we find that a married minor child is entitled to the benefits of Public Law 271.
Order: The Acting Commissioner's order is reversed, and
It is ordered that the appeal be sustained and appellant admitted for permanent residence under Public Law 271.