A-5908014
Decided by Board May 31, 1950 Reconsidered by Board July 13, 1951 Decided by Acting Attorney General May 6, 1952
Suspension of deportation; internee during World War II, exercise of discretion — Voluntary departure; Internees, eligibility for prior to deportation proceedings.
(1) An alien brought to United States for internment during the war may not be deported as an immigrant unless he has failed to avail himself of an opportunity afforded him to depart voluntarily.
(2) Discretionary relief in the form of suspension of deportation or voluntary departure with preexamination may be authorized in the case of an alien brought to this country as an internee when the alien has in the United States dependent family ties of citizen or legally resident alien wife or minor child.
(3) Discretionary relief in the form of suspension of deportation may be authorized in the case of an alien brought to the United States as an internee, even though he has no family ties in this country, when the facts of the case indicate that deportation would result in undue hardship, it appearing that the alien has been in the United States for the past 10 years, is unable to return to the country wherein his last place of lawful residence was located and the alien has been absent for 29 years from the country of his origin and citizenship.
CHARGES:
Warrant: Act of 1924 — No immigration visa.
Act of 1918, as amended — No passport.
BEFORE THE BOARD
(May 31, 1950)
Discussion: Respondent is 45 years of age, a native and citizen of Germany. He last entered the United States on January 13, 1942. At the time of his entry he was in the custody of the United States Army, being one of a number of persons who were brought by the Army to this country from South America for internment during the war. Respondent had migrated from Germany to Nicaragua in 1923. He was brought to the United States from Guatemala, where he had lived for nine years. He has no dependents or close relatives in the United States. He has a wife from whom he has been separated and children in Guatemala.
On June 24, 1947, the Commissioner found respondent to be subject to deportation on the charges stated in the warrant of having entered the United States without a visa and without a passport. Respondent was granted the privilege of voluntary departure within 60 days after notification of decision, and the order further provided that if he did not depart within the allotted time his deportation would be ordered. Counsel now asks for additional relief in the form of a grant of suspension of deportation.
Having had the opportunity to depart voluntarily and not having availed himself of this opportunity, respondent places himself within the rule of United States ex rel. Sommerkamp v. Zimmerman, 178 F. (2d) 645 (C.A. 3, 1949) (originally a companion case to the present one) and United States ex rel. Scherrmeister v. Watkins, 171 F. (2d) 858 (C.A. 2, 1949). In those cases it was found that the persons who were brought into the United States as prisoners of war who have been given an opportunity to depart and had failed to depart, may be deported as "immigrants" who have not satisfied the requirements of law. In each of those cases, as in the present case, the alien was brought to the United States against his will. After a period of internment, proceedings against each alien as an alien enemy were terminated. In each case the alien was given an opportunity to depart voluntarily and failed to do so because of his inability to procure a passport from the country from which he had been removed. In accordance with the rule in those cases, respondent's deportability is now conceded.
The present proceeding is to determine respondent's eligibility for suspension of deportation under section 19 (c) of the Immigration Act of 1917, as amended, 8 U.S.C. 155 (c). That section provides that in the case of any alien who is deportable under any law of the United States and who has proved good moral character for the preceding 5 years, the Attorney General may (1) permit such alien to depart from the United States to any country of his choice at his own expense, in lieu of deportation; or (2) suspend deportation (with an exception not applicable here) of the alien, if he finds (a) that such deportation would result in serious economic detriment to a citizen or legally resident alien who is the spouse, parent or minor child of such deportable alien; or (b) that such alien has resided continuously in the United States for seven years or more and is residing in the United States upon the effective date of the Act (July 1, 1948). [Emphasis supplied.] The provision (b), in italic, was added to the law by the amendment effective July 1, 1948.
When counsel was last before this Board, January 22, 1948, it was to argue the question, no longer an issue, as to whether or not respondent was deportable as an "immigrant." Clause 2 (b) had not been added to the Immigration Act of 1917, and respondent had not yet had 7 years' residence in the United States. He had been in the United States 6 years, from January 13, 1942. In the opinion dated February 12, 1948, we granted respondent an extension of 6 months within which to depart voluntarily without a warrant of deportation to any country of his choice, and added an alternative order providing that if he did not depart within the time granted that he be deported to Guatemala, if that country would accept him, otherwise to Germany. Respondent did not depart from the United States but petitioned the United States District Court for the Eastern District of Pennsylvania for writ of habeas corpus. The court held the case in abeyance pending decision of the court of appeals in the Sommerkamp case, referred to above. On the authority of that case the district court discharged respondent's petition for writ on December 15, 1949.
It has been the policy of this department to deny suspension of deportation to aliens brought into the United States solely for reasons connected with the war. This policy was the subject of examination and criticism by the Circuit Court of Appeals of the Second Circuit in the recent case of Mastrapasqua v. Shaughnessy, 180 F. (2d) 999 (C.A. 2, March 2, 1950). The policy was established by the Attorney General in the Matter of L----, A-5955999 (February 8, 1946). In that case the Attorney General refused to legalize L----'s residence in the United States through a grant of discretionary relief, even though the alien was married to an American citizen. In the Mastrapasqua case, the Court held that the L---- doctrine was so capricious and irrational as to justify review, even though administrative exercise of discretion is not ordinarily reviewable. In a footnote at the end of the decision in the Mastrapasqua case the Court says:
On August 11, 1950, and September 14, 1950, in unreported Matter of M----, A-5587208, the B.I.A. denied discretionary relief from deportation and referred to the above Interim Decision, after discussing the decision of the Circuit Court of Appeals in this unreported case. The B.I.A. stated on September 14, 1950 "As a basis premise in considering discretionary action, we hold we are obliged morally, if not legally, to treat alike all aliens in like circumstances. This obviously requires the formation of certain standards or categories as a guide to the grant of discretion. We do not understand that the ruling of the Second Circuit is to the contrary. We believe the holding to be that, as the court viewed it, the L---- ruling was unsupported by reason and therefore capricious. In the W---- case, (the above Int. Dec.) we have given the reasons which prompted the L---- policy and of which apparently the court was unaware. We hold it would be arbitrary and capricious on our part to grant to this alien that which has been denied to many, many other aliens in like circumstances where action has been taken under the L---- ruling of the Attorney General."
Also compare statement as to above court decision, as appears in Matter of L---- P----, A-7450755, B.I.A., January 3, 1951 ( 4 IN Dec. 223).
We are not to be taken as saying that the Attorney General may not be able to supply a rational explanation of his classification, but merely that as matters now stand we perceive none.
The opinions of the Commissioner and of this Board in the L---- case are set out in full in the footnotes and appendix of the opinion in the Mastrapasqua case.
In the Mastrapasqua decision Judge Chase dissents, stating that appellant has been the beneficiary of favorable discretionary action, in that he was given ample opportunity to depart voluntarily from the United States, and that the majority opinion is actually a review of that exercise of discretion. The dissenting opinion did not consider this classification to be so capricious that its application amounts to a reviewable failure to exercise discretion citing U.S. ex rel. Kaloudis v. Shaughnessy, 180 F. (2d) 489 (C.A. 2, February 20, 1950).
In the Kaloudis case the court considered the extent to which exercise of the Attorney General's discretion under section 19 (c) of the 1917 act, as amended, is reviewable. The court said through Judge Learned Hand, that the interest which an alien has in continued residence in this country is protected only so far as Congress may choose to protect it, that Congress may establish such tests as it considers appropriate, and that unless the Attorney General's ground for refusing a favorable exercise is, on its face, insufficient, the court has "again and again declared" that it will not review, citing cases. The court states that it would review only if the Attorney General's grounds are so clearly irrelevant that a court could say he had transgressed the statute, or "if it affirmatively appears that the denial (of relief) has been actuated by considerations that Congress could not have intended to make relevant." In the Mastrapasqua case, then, the majority of the Court held that the Attorney General's denial of discretionary relief was on grounds so clearly irrelevant as to bring it within the exception stated in the Kaloudis case.
The court does not mention the fact that the Attorney General modified the policy of the L---- case in a directive of December 3, 1946, to the following extent:
If such alien has in the United States a wife who is either a legally resident alien or citizen of this country and/or a citizen minor child and if such alien meets the requirements of the statutes and regulations he may be granted suspension of deportation or pre-examination in addition to voluntary departure.
The court may not have been informed of this exception to or relaxation of the policy, or it may have considered this exception unimportant to the decision of the Mastrapasqua case, because Mastrapasqua's wife and four children resided in Italy. It seems to us that the exception to the L----/Mastrapasqua policy, above stated, is a very important factor in considering the rationality of the classification. The only grounds upon which the Attorney General can grant discretionary relief under section 19 (c) of the 1917 act, as amended, are as we have stated, (a) the presence in the United States of a citizen or legally resident dependent wife, child, or parent or (b) 7 years' residence. Since the Attorney General relaxed the L----/ Mastrapasqua policy as to persons who have such dependents, the application of the policy is narrowed to persons who have no dependents and who have achieved the 7 years' residence as a result of not having departed from the United States at the end of the war or earlier, if they were given the opportunity to do so.
It is our opinion that the policy being the rule in the L---- case is reasonable on its face. The United States Army brought to this country during the war hundreds of persons of German, Italian, Japanese, and other nationalities. They were suspected of being dangerous enemy aliens and were represented as such by the governments of the South American countries, to which they had migrated. They were detained, fed, and housed in alien enemy camps until such time as their cases could be investigated, and adjudicated by the Alien Enemy Division of the Department of Justice. They were offered repatriation during the war to their homelands, such repatriation to be accomplished under exchange agreements administered by the Swiss Government. Some chose to remain in this country even though it meant living in camps.
They were paroled from their camps after favorable findings were made by the Alien Enemy Division. They were permitted to obtain employment, and they lived and worked in the United States, subject to the usual restrictions on paroles. Among the internees involved in these cases were many Italian and German seamen who were taken into custody, either because they sabotaged their ships which had been interned in our ports, or to prevent such sabotage. The wisdom of the policy which brought respondent and many others from South America for internment is not an issue in this case.
The legislative history of section 19 (c) (2) (b) does not indicate any intention to benefit a large number of aliens who entered the United States as war prisoners. Insofar as it is at all pertinent here it indicates only that the members of the subcommittee of the House of Representatives were endeavoring to limit the effect of the bill to a group of aliens whose cases were considered to be unusually meritorious, but who were at that time ineligible for relief by suspension of deportation.
Page 129, hearings on H.R. 2933, 80th Cong., 1st sess., House Judiciary Committee, held April 21, 25, 28, 29, and May 2, 1947.
One reason for denying suspension in these cases is that when an alien is granted preexamination or suspension of deportation the immigration quota of the country of the alien's nationality is reduced by one for the fiscal year then current or the next following year in which a quota number is available. One reason this Board considers carefully each application for adjustment of status is the fact that most aliens remain outside the United States, each waiting his turn to enter legally under the quotas. It would be clearly unfair for persons who have gained entrance into the United States illegally, or because they were considered dangerous alien enemies to be the beneficiaries of all the advantages. Each person in the United States who receives such consideration but further delays the time when the person outside our boundaries can obtain his number.
Establishing categories of persons to whom discretionary relief will not be granted is not of itself capricious administration of the discretionary provisions of the immigration laws. Indeed, it is our belief, that failure to establish categories and to administer the law uniformly with regard to the aliens falling into these categories can be truly capricious. L----, Mastrapasqua, and W---- were all in the United States under exactly the same circumstances. If we were to permit the first to depart voluntarily, to grant suspension of deportation to a second and to deport the third, that, in our opinion, would be truly capricious exercise of the discretionary authority.
An occasional exception might be made either from inadvertence or because of extraordinary circumstances. This would not cause the basic policy to become capricious.
In U.S. ex rel. Mylius v. Uhl, 203 Fed. 152 (S.D., N.Y., 1913), aff'd. 210 Fed. 860 (C.C.A. 2, 1914), an early and important case in the immigration field, the court suggests specifically the establishment of categories, saying that immigration authorities act in an administrative, not in a judicial capacity, that they must follow definite standards and apply general rules. The court admitted that this kind of administration has disadvantages but concludes:
But such results always follow the use of fixed standards and such standards are, in my opinion, necessary for the efficient administration of the immigration laws.
The 1917 act, itself, establishes a pattern of categorizing as to aliens who may or may not be granted discretionary relief from deportation. Section 19 (d) of that act provides that persons are ineligible for discretionary relief who are, or have been criminals, prostitutes, anarchists, trafficker in narcotics, etc. Other categories have been attempted by those responsible for the administration of the immigration laws, categories which seemed reasonable and essential to fair and practicable administration and within the spirit of these laws. An example of this type of categorizing is a policy that, as a general rule, suspension will not be granted a recently arrived seaman who overstays his leave, even though he marries an American citizen woman on the eve of his deportation. Kaloudis v. Shaughnessy, supra, is such a case.
There is another classification of persons to whom we must deny suspension of deportation, though they appear superficially to have fulfilled the requirements. Section 19 (c) of the 1917 act, as amended, requires that Congress in each case pass a resolution favorable to suspension before a grant of suspension by us becomes absolute. The 81st Congress did not favor suspension of deportation in 32 cases of a particular pattern submitted by the Attorney General between December 15, 1947, and April 16, 1948. These cases concerned families recently arrived in the United States who sought to predicate suspension of the parents on the accident of birth within the United States of one of their children, and thus to remain here with all of their children. These were usually large families of aliens who entered the United States illegally from contiguous territory. Suspension was sought on the ground that deportation of this family would result in serious economic detriment to the one child who was born on United States soil. There frequently had been adverse immigration proceedings prior to the last entry of the parents. Congress did not favor granting suspension in such cases. Thus another extrastatutory classification of persons who will not receive suspension of deportation has arisen as a result of a clearly indicated Congressional policy, which serves us as a guide in the disposition of similar cases hereafter. This does not mean that full consideration is not given to all factors in the case bearing on the issue.
In Matter of D----, A-2244808 (August 17, 1949, recon. reaff., September 30, 1949) we held that residence of 7 years in the United States as an alien enemy where the alien's presence in the United States was necessitated because of the war, would not be construed as residence required within the meaning of section 19 (c) of the Immigration Act of 1917, as amended. In the Matter of K----, A-7044499 (April 26, 1949), Matter of A----, A-5918070, (March 2, 1949) we said that it has been our policy to refuse suspension to those persons who have managed to eke out 7 years' residence in the United States by failing to cooperate with the immigration officials; that is, by remaining in the United States in defiance of orders granting them other relief.
Respondent chose to remain in the United States after he was given an opportunity to depart. The consequence of his choice is deportation.
Respondent was offered several opportunities to depart voluntarily. In view of the authorities and policies discussed above, we believe that this is the optimal relief available to him.
Order: It is ordered that the motion be denied.
Discussion: This case is before us on motion of counsel requesting that we reconsider our order dated May 31, 1950, in which we denied counsel's motion requesting the discretionary relief of suspension of deportation.
The record relates to a native and citizen of Germany, 46-year-old male, who last entered the United States on January 13, 1942, in the custody of the United States Army, having been brought to this country from South America for internment during the war. The respondent has been found to be subject to deportation on the charges stated in the warrant of arrest, of having entered the United States without a visa and without a passport. On February 12, 1948, he was granted an additional period of 6 months from date of notification of decision within which to depart voluntarily from the United States, and was further ordered that if he did not depart within the time granted, his deportation would be ordered. Respondent did not depart but petitioned for a writ of habeas corpus which was discharged by the United States District Court for the Eastern District of Pennsylvania on December 15, 1949.
In our order dated May 31, 1950, denying the respondent's motion to reopen for additional relief in the form of suspension of deportation, we thoroughly explored the question of the respondent's eligibility for suspension of deportation, and held that under the circumstances of the case, the optimal relief available had been granted to the respondent, and in view of his failure to depart voluntarily, the alternative was deportation. In his present brief, counsel refers once more to Mastrapasqua v. Shaughnessy, 180 F. (2d) 999 (C.A. 2, 1950) as the basis for his argument for discretionary relief. In our order dated May 31, 1950, we adverted at length to the Mastrapasqua decision. In view of the manner of the respondent's arrival in this country, and the fact that he had no family ties here, his wife and children being in Guatemala, and in view of the fact that the respondent had managed to eke out 7 years residence in this country by dilatory and delaying tactics, it was felt that a case was not presented to warrant a granting of that motion to reopen.
The present motion for reconsideration fails to present any new or additional arguments which were not considered when we previously entertained counsel's prior motion, nor are any new persuasive arguments presented therein. Accordingly, the motion to reconsider will be denied.
Order: It is ordered that the motion to reconsider be denied.
After a review and consideration of the entire record in this case, I am of the opinion that the facts indicate that deportation of the subject alien will bring about undue hardship.
Accordingly, the order of the Immigration Appeals Board, dated May 31, 1950, is hereby reversed, and, pursuant to authority contained in section 19 (c) of the Immigration Act of 1917, as amended, 8 U.S.C. 155 (c), the deportation of E---- W---- is hereby suspended.