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it in fact consider the various amendments other than generally, except to enroll a letter from the Attorney General.
The Senate committee's remarks, because of the exception previously noted to the general proscription of section 13 (c) of the 1924 act as to aliens "ineligible to citizenship," may be construed as applying literally only to those aliens who were not legally admitted immigrants, or who, after departure, were not returning merely from a “temporary visit abroad," and therefore as not reaching the present case. The language employed, however, does not seem to recognize such qualification, couched as it is in sweeping terms, to the effect that such a claimant "if he leaves the United States" should "be denied the right of ever returning to this country." The expression stands, therefore, as an index of the legislative will, or statement of policy, to be observed when these neutral alien claimants of exemption from military service seek to reenter the United States.
Manifestly, such expression does not alter the effect of the unambiguous provisions of the law which, as has been found here, do not render the applicant inadmissible by reason of his claim of such exemption. Such expression, however, is considered to be a measure of the latitude to which administrative discretion may properly extend in relaxing other excluding provisions of the statute in behalf of such claimants who have placed themselves in the class of aliens "ineligible to citizenship."
It is concluded, for the foregoing reason, that the present case does not warrant a favorable exercise of administrative discretion to relieve the applicant of the disability which has attached by reason of his convictions of the offenses of grand larceny on December 17, 1937, in the Circuit Court of Genesee County, Mich. The excluding order will therefore be affirmed.
Order: It is ordered that the excluding decision of the board of special inquiry be affirmed.
BEFORE THE BOARD
(August 20, 1951)
Discussion: This case is before us on appeal from an order of the Assistant Commissioner excluding the subject alien from admission to the United States on the above stated charges and denying his readmission under the 7th proviso to section 3 of the Immigration Act of 1917.
The alien, male, 42 years of age, a native and citizen of Ireland, arrived at the port of New York on January 13, 1950, and sought admission to resume residence. He was excluded by a Board of Special Inquiry because of conviction upon his plea of guilty in December 1937 on two charges of larceny. The record shows that the alien was
admitted to this country for permanent residence on April 3, 1928. He resided in the United States continuously until August 17, 1949, when he departed for Ireland for the purpose of visiting his father who was ill. He is married to a United States citizen and is the father of a citizen daughter about 15 years of age. Appellant resides with his wife and daughter.
The Assistant Commissioner has considered the question of whether the alien should be admitted under the discretionary relief contained in the 7th proviso to section 3 of the Immigration Act of 1917. The appellant is returning to an unrelinquished domicile of more than 7 years. His family resides here. Except for the offense which forms the basis of inadmissibility, he has no criminal record. He has established good moral character. He is well regarded in his community and by his business associates.
The Service has declined to authorize exercise of the 7th proviso to section 3 of the act of 1917. The alien on March 8, 1945, executed DSS Form 301 before his local draft board and thereby obtained 1elief from military service as a neutral alien. By so doing, the alien placed himself within a class ineligible to United States citizenship. The Service argues that, once having placed himself voluntarily in such class, the alien must be prepared to meet the consequences of his action. The Service points out that one disability imposed upon aliens ineligible to citizenship is inadmissibility to this country (sec. 13 (c), Immgration Act of 1924, 8 U. S. C. 213 (c)) unless "admissible as a nonquota immigrant under section 4 (b), (d) or (e)." The subject is within subsection (b) since he is a lawfully admitted immigrant who is returning from a temporary visit abroad. He is in possession of a passport valid to April 5, 1954; and, he surrendered a permit to reenter which was valid to July 25, 1950. He is not inadmissible to this country.
The Service refers to a report of the Senate immigration committee made when considering amendatory legislation (H. R. 390 of the 79th Cong.), defining the term "ineligible to citizenship." That committee was of the opinion that a person declining to serve in the United States armed forces on the ground of being a citizen of a neutral country should not only be denied the right of naturalization, but if he leaves the country, he should likewise be denied the right of ever returning. The Service points out that the remarks might be construed as applying literally only to those who were not legally admitted immigrants or who were not returning merely from a temporary visit abroad. The Service concedes that such would not reach the present case, but should stand as an index of the legislative will, or statement of policy, to be observed when an alien claiming exemption sought to reenter the United States.
The reasoning, as stated above, when used by the congressional committee, related only to eligibility to citizenship, not to relief under the 7th proviso. We do not believe such reasoning should be applied here. The penalty prescribed by law by filing a Form 301 is ineligibility to citizenship. Another-exclusion-should not be added. Our laws permit a reentry of ineligibles lawfully admitted to this country who return from a temporary visit abroad. Suspension of deportation has been granted where an alien refused to serve in the United States armed forces. Matter of G-, A-2146468 (October 9, 1947); and to certain aliens, Japanese, etc., who are ineligible to citizenship. It is our conclusion that the appeal should be sustained and the alien admitted under the 7th proviso.
Order: It is ordered that pursuant to the discretion contained in the 7th proviso to section 3 of the Immigration Act of 1917, the alien be admitted to the United States for permanent residence at New York, N. Y., notwithstanding his inadmissibility as one who admits the commission of and was convicted of a crime involving moral turpitude, to wit: Grand larceny, committed in 1935, subject to revocation in the discretion of the Attorney General, after hearing, if the alien hereafter commits any crime.
In accordance with the provisions of Title 8, Code of Federal Regulations, section 90.12, this case is certified to the Attorney General for review of this Board's decision.
BEFORE THE ACTING ATTORNEY GENERAL
(August 30, 1951)
The decision and order of the Board of Immigration Appeals dated August 20, 1951, are hereby approved.
IN THE MATTER OF P
In VISA PETITION Proceedings
VP-437023 and A-6739061
Decided by Central Office December 6, 1950
Decided by the Board February 7, 1951
Visa petition-Beneficiary husband of East Indian race-Basis for denial.
The beneficiary, who married the petitioner on April 7, 1950, is of East Indian race (of a race indigenous to India), and must be charged to the quota of India, as provided by section 4 of the act of July 2, 1946; he is governed by the Department of State's priorities set up by that act, and not by the preferences mentioned in section 6 (a) (1) of the Immigration Act of 1924; wherefore the visa petition on his behalf must be denied.
BEFORE THE CENTRAL OFFICE
(December 6, 1950)
Discussion: The subject, a native-born citizen of the United States, has filed a petition for issuance of immigration visa in behalf of her husband, R—— P—— P——, who was born in Bombay, India, and whom she married in the United States on April 7, 1950.
The record shows that the district director has denied the visa petition on the ground that subject's husband is of the East Indian race and therefore does not come within the classification of a nonquota or preference quota immigrant by reason of subject's marriage to him. From this decision, the petitioner, who resides in the United States, has appealed. The record further shows that the beneficiary entered the United States in July 1947 and departed therefrom for England on July 13, 1950.
The evidence relating to the beneficiary establishes that he is of the East Indian race and is therefore a person of a race indigenous to India. Section 4 of the act of July 2, 1946 (Public Law 483, 79th Cong., ch. 534, 2d sess.) provides "With the exception of those covered by subsection (b), (d), (e) and (f) of section 4, Immigration Act of 1924 (43 Stat. 155; 44 Stat. 812; 45 Stat. 1009; 46 Stat. 854; 47 Stat. 656; 8 U. S. C. 204), all persons of races indigenous to India entering the United States annually as immigrants shall be allocated
to the quota for India computed under the provisions of section 11 of the said act. A preference up to 75 per centum of the quota shall be given to Indians and other aliens racially eligible to naturalization born and resident in India or its dependencies." Section 5 (a) of the said act provides as follows: "For the purposes of section 2 (4) of this act, the term 'persons of races indigenous to India' shall mean any person who is as much as one-half of the blood of a race indigenous to India and who is eligible to naturalization under section 303 of the Nationality Act of 1940, as amended by section 1 of this act."
In view of the fact that the beneficiary is of the East Indian race, he is deemed to be a person of a race indigenous to India.
As such, he must be charged to the quota of India, as provided by section 4, act of July 2, 1946 (supra), and is governed by the Department of State's priorities set up by that act and not by the preferences mentioned in section 6 (a) (1) of the Immigration Act of 1924.
In view of the foregoing, the action of the district director in denying the visa petition is affirmed.
Order: It is ordered that the petition for issuance of immigration visa in behalf of the subject's husband be denied.
It is further ordered, That this decision be transmitted to the district director at Chicago, Ill., for further appropriate attention in accordance with part 165.2 (e) of title 8 of the Code of Federal Regulations.
BEFORE THE BOARD
(February 7, 1951)
Discussion: This matter is before us by reason of an appeal from the decision of the Assistant Commissioner of Immigration and Naturalization, dated December 6, 1950.
The decision of the Assistant Commissioner of Immigration and Naturalization correctly sets forth the law and the facts in the case, consequently, there is no necessity for discussing them again.
We have carefully considered all of the representations as contained in the record as well as those advanced on oral argument before this Board and it is our conclusion that the appeal must necessarily be dismissed.
Order: It is ordered that the appeal from the decision of the Assistant Commissioner of Immigration and Naturalization, Adjudications Division, dated December 6, 1950, be and the same is hereby dismissed.