A-3328982
Decided by Board March 31, 1949
Seventh proviso relief — Nunc pro tunc — Validation of last entry — Section 3 of the Immigration Act of 1917 — Good moral character — Test in exercising discretion — Restrictions on grant — Alien in a class within section 19 (d) of the Immigration Act of 1917, as amended.
1. Where an alien is precluded from the grant of suspension of deportation because of conviction (and admission of the commission) of an offense involving moral turpitude which brings him into one of the classes specified in section 19 (d) of the Immigration Act of 1917, as amended, he may nevertheless be granted seventh proviso relief (sec. 3 of the Immigration Act of 1917), nuno pro tunc, to validate a last entry, if he is eligible therefor and such discretionary action is deemed warranted.
2. A finding as to good moral character for a given period is not barred merely because of several arrests during that period, which resulted in subsequent release (without conviction).
3. Where the alien committed the offense of petty theft of avocados 10 years ago, and there is definite evidence of rehabilitation since then, and where deportation would impose great hardship upon his mother who depends solely upon him for care and support, and the above offense is found to be a minor infraction which proves to be an isolated incident (in no sense aggravated or wanton in character), and the alien has resided here for over 30 years, the grant of discretionary relief under the seventh proviso (sec. 3 of the Immigration Act of 1917), is deemed warranted, for deportation in such case would be disproportionate to the seriousness of the offense.
4. All the circumstances involved must be considered in determining whether discretionary action should be favorably exercised, the test being the alien's undesirability as a resident as evidenced by the crime for which he was convicted, and the social and humane problems involved.
5. Restrictions can be placed on the grant of seventh proviso relief (sec. 3 of the Immigration Act of 1917).
CHARGES:
Warrant: Act of 1917 — Admits crime prior to entry — Petty theft.
Act of 1917 — Convicted of crime prior to entry — Petty theft.
BEFORE THE BOARD
Discussion: This case is before us on appeal from an order of the Assistant Commissioner dated December 17, 1948, directing denial of applications for suspension of deportation, voluntary departure, and exercise of seventh proviso; deportation to Mexico was ordered. This finding was arrived at after a reopened hearing was conducted on July 27, 1948, at the direction of this Board (Board of Immigration Appeals order dated February 20, 1947); the purpose of the reopened hearing was to ascertain and consider whether discretionary relief should in fact be exercised in behalf of respondent.
Respondent, a 45-year-old native and citizen of Mexico, alleges that his last entry occurred at Nogales, Ariz., on or about January 16, 1944, while in possession of a resident alien's border-crossing identification card. He was previously admitted to the United States for permanent residence at the same port on February 5, 1917. Respondent is presently a widower with three adult children; the children have testified that father assisted them financially prior to their marriage, presently makes small contributions to their welfare, and would, they feel, come to their assistance should they ever find themselves in financial difficulties. Respondent claims that he is now supporting his widowed mother, having been her sole support since 1935 (he gives her $20 or $25 a week); his mother testified that she has no assets and has no one else to rely on save respondent. A statement of the Los Angeles County Department of Charities, dated May 13, 1947, shows that the amount of aid rendered respondent and his family at different times from 1932 to 1947 totals $1,342.70; it was stated that no demand has ever been made for payment and none had been received.
Respondent pleaded guilty and was convicted on October 26, 1938, in the Justice Court, Tustin Township, county of Orange, Calif., on a charge of petty theft of avocados while intoxicated; he was sentenced to serve 180 days. Since the conviction for this crime prior to respondent's last entry is established and his admission of the same crime is part of the record, the charge in the warrant is sustained. The only question involved is whether discretionary relief should be exercised in behalf of this respondent.
During the past 5 years, the record shows that respondent was arrested three times; however, there is no indication of convictions on any of the charges: December 24, 1944 — arrested and released on suspicion of violating the health and safety code (marijuana); November 1, 1945 — arrested on a resorting charge; April 26, 1947 — arrested and released on a drunkenness charge. We conclude that respondent has established that he has been a person of good moral character for the past 5 years, for there are no convictions recorded which militate against such a finding. In addition, an independent investigation, conducted by the Immigration Service, reveals that persons who have known respondent for over 7 years attest to his good moral character and loyalty to this country; his employer states that he seems to have done his best to reform during the past 3 or 4 years — he has been steadily employed and stopped drinking heavily. Respondent has also submitted documentary proof of his residence in the United States from at least 1938 to the present time.
In determining whether or not discretionary action should be taken in a particular case, all the circumstances involved must be considered. The test set out in Matter of G----, 56040/547 (Nov. 29, 1940) involves two points: First, the social and humane problems involved and second, the alien's undesirability as evidenced by the crime for which he was convicted. In regard to the first consideration, it must be remembered that respondent has been in the United States almost continuously for more than 30 years and deportation would force him to adjust to a new environment and outlook — a difficult task at his age. In addition, deportation would impose great hardship upon respondent's aged mother who depends solely on respondent for care and support. The seventh proviso was exercised in order to alleviate family hardship which deportation would cause in Matter of B----, 6033312 (Sept. 16, 1947) and in Matter of P----, 3032469 (Aug. 9, 1946).
The second factor mentioned in the G---- case refers to the fact that all circumstances may "tend to indicate that the alien is not a criminal in the popular acceptance of that term." The crime in question was a minor infraction which proved to be an isolated incident, indulged in on a momentary impulse, and in no sense aggravated or wanton in character. The P---- case, referred to above, concerned a conviction for petty larceny of a dress valued at $5.50; the Attorney General approved this Board's finding that in view of long residence and family ties in the United States, the alien should not be so harshly penalized for a single lapse as to order deportation. The G---- case also states that such a harsh punishment (as deportation in the instant case) "because of the rather minor nature of the crime would be actual punishment entirely disproportionate to the seriousness of the offense."
Furthermore, in this case, we feel that respondent has given definite evidence of rehabilitation, since the commission of petty theft in 1938 ( Matter of P----, 5327894, Jan. 7, 1947). Therefore, we feel that discretionary relief should be granted respondent and that the seventh proviso should be exercised nunc pro tunc in the instant case.
This Board has previously held that restrictions can validly be placed on this grant of seventh proviso relief ( Matter of H----, 56171/411 (Nov. 4, 1946); Matter of R----, 4039070 (Nov. 4, 1946); Matter of L----, 56156/576 (Nov. 4, 1946)). Hence, the grant of discretionary relief is authorized subject to the restriction that should respondent commit a subsequent offense or fail to maintain good moral character, such relief will be revoked.
Order: It is hereby ordered that the proceedings under the warrant of arrest be terminated: The alien to be deemed as readmitted for permanent residence on January 16, 1944, as a returning resident alien previously lawfully admitted pursuant to the discretion contained in the seventh proviso to section 3 of the Immigration Act of 1917, as amended, notwithstanding his inadmissibility as one who was convicted of and admits the commission of crimes involving moral turpitude prior to entry, to wit, petty theft, committed in the State of California on October 25, 1938, subject to revocation in the discretion of the Attorney General, after hearing, if the alien subsequently commits any offense, and provided that he continues to maintain a United States domicile, and provided further, that he has in the meantime conducted himself as a person of good moral character.