IN THE MATTER OF S― H▬▬▬▬▬▬ C▬▬▬▬▬▬ C▬▬▬▬▬ (AND CHILDREN)

In DEPORTATION Proceedings

A-5507418, A-7037168, A-7037141, and A-7037142

Decided by Central Office March 14, 1950

Decided by Board May 11, 1950

Government (foreign) Official's Family-Alien's deportability for failure to maintain status under section 3 (1) of the act of 1924 and regulations now in effect-Section 14 and section 15 of the act of 1924, as amended.

(1) Statutory authority for imposing conditions of admission with respect to foreign government officials and their families (aliens), who enter the United States under the provisions of section 3 (1) of the Immigration Act of 1924; is found in the amendment of July 1, 1940, to section 15 of the Immigration Act of 1924; and a regulation "executing" this statutory authority as of May 27, 1944 is to be found in 8 C. F. R. 110.29, as amended May 27, 1944. (2) The respondents, who were admitted in 1939 under section 3 (1) of the act of 1924, no longer had such official status in 1946 (when the government official husband/father returned to China), and are deemed to be deportable under sections 14 and 15 of the Immigration Act of 1924, as amended, because of failure to maintain status under section 3 (1) of the act of 1924 and regulations now in effect.

CHARGE:

Warrant Act of 1924-Remained longer-Members of family of government

official.

BEFORE THE CENTRAL OFFICE
(March 14, 1950)

Discussion: These records relate to a 46-year-old married female. her 22-year-old single male child, 18-year-old single male child, and her 14-year-old daughter, all natives and citizens of China, of the Chinese race, whose only entry into the United States occurred at the port of New York, N. Y., on February 3, 1939, at which time they were admitted as members of the family of a government official. Their entries have been verified. The government official husband/ father returned to China in 1946. The respondents have continued to reside in the United States.

In the belief that they were subject to deportation, the respondents voluntarily submitted themselves to deportation proceedings in accordance with the provisions of 8 C. F. R. 150.10, requesting that their deportation be suspended in accordance with the provisions of section 19 (c) (2) (b) of the Immigration Act of 1917, as amended. They are eligible for the relief requested only if they are subject to deportation. The only possible ground of deportability is that set forth in the caption hereof. For the reasons hereinafter set forth, it is the view of this Service that the respondents are not subject to deportation at the present time.

Prior to July 1, 1940, foreign government officials and members of their families were admissible to the United States without the imposition of conditions with respect to duration of stay and maintenance of status. This, for the reason that section 15 of the act of May 26, 1924, prior to its amendment by the act of July 1, 1940, contained no statutory authority for the promulgation of regulations imposing conditions of admission with respect to government officials and their families. Accordingly, if the respondents were required to maintain their status in order to avoid deportation such requirement, if it exists, must be found in legislation enacted or regulations promulgated subsequent to their entry.

The act of July 1, 1940, amended section 15 of the 1924 act by including government officials and their families within the statutory authority for whom terms of admission could be imposed in accordance with regulations to be prescribed, and adding a proviso to that section. This amendment was considered by the Board of Immigration Appeals in Matter of DP, A-4074327 (formerly 56043/ 906) in its orders on January 14, 1941, and July 31, 1941, and again considered and discussed on January 27, 1941, by the Board of Immigration Appeals in Matter of G-, A-1256369 (formerly 55974/884). In those cases the view was advanced that the proviso was indicative of the congressional intent to make the provisions of section 15, as amended, applicable to aliens who were admitted to the United States under clause (1) of section 3 prior to July 1, 1940, the effective date of the amendment.

This Service does not question the soundness of that conclusion. It does question, however, the effect of such conclusion on the deportability of aliens in the absence of any regulation imposing conditions of admission at time of entry or imposing conditions subsequent to entry, the breach of which would be a ground of deportability under the immigration laws. Attention is directed to the fact that notwithstanding the amendment of July 1, 1940, it was not until May 16, 1944, that a regulation was duly promulgated (8 C. F. R. 110.29 (a)) amending the regulation in existence since December 21, 1933 (General Order No. 207), so as to require that the admission of a govern

ment official and his family shall be conditioned on their maintaining status. Up to the present time there is still no regulation limiting the time for which a government official and his family may be admitted notwithstanding the 1940 amendment to section 15 of the 1924 act as interpreted by the Board of Immigration Appeals. Nor has there been up to the present time any regulation imposing maintenance of status as a condition to remaining in the United States on those government officials and their families who entered the United States prior to July 1, 1940, at which time their entry was unconditional.

In the absence of any regulation it is necessary to determine whether the statute itself is sufficient to accomplish the legislative intent which appears in the report of the Committee on Immigration and Naturalization of the House of Representatives that accompanied the bill which later became the act under discussion (Report No. 2645, House of Representatives, 76th Cong., 3d sess., to accompany H. R. 1011). In this report we find the following:

The purpose of the Bill is to require aliens who were admitted to the United States as officials of foreign governments to maintain their status or depart from the United States.

*** It was stated by the witness appearing that such a Bill was very necessary at this time in view of the fact that many individuals were admitted as officials of foreign governments or connected in some way with the regular officials of foreign countries that in many instances their connection with the foreign government has terminated but under present laws, they are permitted to remain. Section 15 of the 1924 act, as last amended, provides:

The admission to the United States of an alien excepted from the class of immigrants by clause (1), (2), (3), (4), (5), (6), or (7) of section 3, or declared to be a nonquota immigrant by subdivision (e) of section 4, shall be for such time and under such conditions as may be by regulations prescribed (including, when deemed necessary for the classes mentioned in clause (2), (3), (4), or (6) of section 3 and subdivision (e) of section 4, the giving of bond with sufficient surety, in such sum and containing such conditions as may be by regulations prescribed) to insure that, at the expiration of such time or upon failure to maintain the status under which admitted, he will depart from the United States: Provided, That no alien who has been, or who may hereafter be, admitted into the United States under clause (1) or (7) of section 3 as an official of a foreign government, or as a member of the family of such official, or as a representative of a foreign government in or to an international organization, or an officer or employee of an international organization, or as a member of the family of such representative, officer, or employee, shall be required to depart from the United States without the approval of the Secretary of State.

The Circuit Court of Appeals for the Eighth Circuit on July 5, 1935, in the case of Chung Yim v. United States, 78 F. (2d) 43; (writ of cert. den., 50 S. Ct. 150), held that:

This section 15 is not self-executing insofar as it has to do with the right of the alien to remain in this country, but it delegates to the Department of Labor power to promulgate regulations and prescribe conditions.

38

It necessarily follows from this judicial pronouncement which has been the last word on the subject by the courts, that in the absence of appropriate regulation, section 15 of the 1924 act, at least as it existed at the time of the court's decision, was inoperative. At the time of the court's decision, section 15 read as previously set forth above except that the present proviso concluding section 15 was not then a part of the section and with the further difference that the opening sentence read as follows:

The admission to the United States of an alien excepted from the class of immigrants by clause (1) (except a government official and his family), (2), (3), (4), (5), or (6) of section 3 * * *.

It is the view of this Service that the changes in section 15 brought about by the 1940 amendment made no such material changes in the substantive provisions of the section as to negative the decision of the Eighth Circuit Court of Appeals. The Board of Immigration Appeals, in its two previous decisions, concluded that the proviso merely served to make the section retroactive. If, as the court held, the section was not self-executing, it did not become self-executing merely because it was intended that the section when operative have retroactive effect. The section is not operative until regulations are promulgated as set forth therein. The removal of the parenthetical words "except a government official and his family" certainly cannot be held to have the effect of making self-executing a section which previously had been held to be not self-executing at a time when the words in the parentheses were present.

To sum up, maintenance of status to be a ground of deportability must be required either by regulation or by a self-executing statute. There has not been and there is not now any regulation making maintenance of status a condition prerequisite to remaining in the United States on the part of a government official and his family who were duly admitted to the United States as such prior to May 16, 1944. This Service is of the opinion that the decision of the Eighth Circuit Court of Appeals is as valid today under the present wording of section 15 as it was on the day the decision was rendered. It necessarily folows that in the absence of a regulation, or a selfexecuting statute, maintenance of status on the part of the respondents was not and is not now required, and their failure to maintain such status does not subject them to deportation.

Except for the prior decision of the Board of Immigration Appeals previously cited herein, this Service would be disposed to cancel the warrants of arrest on the ground that the respondents were not subject to deportation. Those cases, however, reached a contrary conclusion apparently on the basis that section 15 was self-operative and required no regulation to carry out its terms. It does not ap

pear whether this point was considered in the prior cases. The Circuit Court of Appeals has held to the contrary. The decision of the Board of Immigration Appeals, except as may be modified or overruled by the Board of Immigration Appeals or the Attorney General, is binding on all officers and employees of the Immigration and Naturalization Service (8 C. F. R. 90.3 (d)). In accordance with 8 C. F. R. 90.3 (b), the instant cases should be certified to the Board of Immigration Appeals for final decision with a recommendation that the Board of Immigration Appeals reconsider its earlier decisions. Recommendation: It is recommended that the warrant of arrest in the case of S―

H

C

C▬▬▬▬▬ C▬▬▬, and C—C— be canceled and proceedings thereunder terminated.

It is further recommended, That in accordance with the provisions of 8 C. F. R. 90.3 (b) these cases be certified to the Board of Immigration Appeals for final decision.

So ordered.

BEFORE THE BOARD

(May 11, 1950)

This case has been certified to the Board pursuant to 8 C. F. R. 90.3 (b) for review of an opinion by the Assistant Commissioner dated March 14, 1950, finding the respondents not subject to deportation on the above-stated charge laid under the Immigration Act of 1924, to wit, that they have remained in the United States after failure to maintain the exempt status under which admitted, and directing termination of the deportation proceedings.

Discussion as to Deportability: The facts of the case are fully stated in the Assistant Commissioner's opinion. Briefly they relate to a 46-year-old married female, her 22-year-old unmarried son, another son 18 years of age, unmarried, and a daughter 14 years of age, all natives and citizens of China, of the Chinese race, whose only entry into the United States occurred at the port of New York on February 3, 1939, at which time they were admitted as members of the family of a Chinese government official. Their entries have been verified. The respondents have continued to reside in the United States since the husband/father returned to China in 1946.

The respondents voluntarily submitted themselves to deportation proceedings in accordance with the provisions of 8 C. F. R. 150.10 and in connection therewith submitted applications for the suspension of their deportation pursuant to section 19 (c) (2) (b) of the Immigration Act of 1917, as amended. They are eligible for the relief sought only if they are subject to deportation and the only possible ground of deportability appears to be the one set forth in the caption above.