A-7190930
Decided by Board May 18, 1951
Place of deportation — Exclusion proceedings — Section 18 of the Immigration Act of February 5, 1917, as amended — Applicability of section 20 of that act, as amended by the Internal Security Act of 1950.
Section 20 of the Immigration Act of February 5, 1917, as amended by section 23 of the Internal Security Act of 1950 relates to expulsion proceedings, whereas section 18 of the Immigration Act of February 5, 1917, as amended relates to exclusion proceedings.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — No immigration visa.
Executive Order 8766 — No passport.
Act of 1917 — Convicted of crime involving moral turpitude — Perjury.
Act of 1917 — Admits commission of crime involving moral turpitude — Perjury.
BEFORE THE BOARD
Discussion: This case is before us on motion to reconsider our order of July 27, 1949, wherein we dismissed the appellant's appeal from an order affirming his exclusion on the above stated grounds at the port of San Francisco, Calif. Counsel also urges a reopening of the proceedings in light of section 23 of the Internal Security Act of 1950 which amends section 20 of the Immigration Act of 1917. Pending consideration of the question presented we directed a stay of the appellant's deportation. Oral argument on the motion was granted and counsel was heard.
The respondent, a native and citizen of China, arrived at the port of San Francisco, Calif., on June 14, 1948. He applied for admission as a native-born citizen of the United States. Upon examination he admitted alienage and following a hearing before a board of special inquiry on April 21, 1949, he was excluded on the above-stated grounds. His return to China, the country whence he came, is now imminent.
Counsel raises the point that the amendment to section 20 of the 1917 act ( supra), which provides in part "No alien shall be deported under any of the provisions of this act to any country in which the Attorney General shall find that such alien would be subjected to physical persecution" requires a finding by the Attorney General that the respondent would not be subject to physical persecution before he can be returned to China under the order of exclusion. Accordingly, he moves for a reopening of the proceedings for the introduction of additional evidence relative to the fate, it is alleged, awaits the appellant if he is returned to Communist controlled China.
The issue presented is whether that portion of the amended statute quoted above relates to a case which has arisen in exclusion proceedings as opposed to deportation proceedings. We agree with the Acting Assistant Commissioner of the Enforcement Division that section 18 of the Immigration Act of 1917, as amended, requires the return of aliens excluded from admission to the United States to the country whence they came with certain exceptions not applicable here.
A reading of the two sections under discussion clearly indicates that section 18 ( supra) relates to "aliens brought to this country in violation of law" whereas, section 20, as amended in 1950 ( supra), by its very terms relates to "deportation proceedings" * * * "of any alien taken into custody under warrant of the Attorney General" * * * "instituted * * * after the entry of the alien." Since the appellant's inadmissibility has been established in exclusion proceedings and there is no showing of record that section 18 of the Immigration Act of 1917, as amended, cannot be applied in such proceedings, we cannot ignore its provisions as this would amount to judicial legislation which should be avoided.
Order: It is ordered that the motion be and the same is hereby denied.