IN THE MATTER OF L In DEPORTATION Proceedings A-5917727 (D. P. 4875) Decided by the Board February 3, 1950 Seventh proviso relief-Section 3, act of February 5, 1917-Exercise of discretion as to alien who had one or more attacks of insanity-Discretion under section 19 (c) of the act of February 5, 1917, as amended-Exercise of discretion, as a matter of policy, in certain classes of cases. (See 4, I. & N. Decs. 64 and 223.) An alien admitted as a seaman on November 20, 1941, was found deportable for staying beyond the time he was permitted. He has a wife and minor child abroad. When he sought the preexamination privilege together with voluntary departure, it was found that he would be inadmissible on return because of one or more attacks of insanity. In 1946, he was granted voluntary departure, but to be deported if he failed to so depart. The exercise of the discretion under the 7th proviso to section 3 of the act of February 5, 1917, was sought thereafter so that he could be admitted notwithstanding this ground of inadmissibility when he returned. This relief for such a cause was held limited to cases in which an alien had close family ties in the United States and had resided here for a long period of time. Because of the manner in which he entered the United States (presence permitted solely because of reasons connected with the war), and because of the other circumstances here, the relief requested under section 19 (c) (supra), as well as under the 7th proviso to section 3 (supra), was held not justified, it being noted he had eked out a 7-year period of residence by failing to comply with order of voluntary departure in 1946. CHARGE: Warrant: Act of 1924-Remained longer-seaman. BEFORE THE BOARD Discussion: On February 21, 1949, this Board ordered that respondent's request for a grant of voluntary departure and exercise of the 7th proviso be denied and the motion of the Assistant Commissioner that an order directing the deportation of respondent to Finland be entered. Counsel has submitted to the Assistant Commissioner an application for adjustment of his status in the United States under section 19 (c) of the Immigration Act of 1917, on the grounds that he has shown good moral character and has resided in the United States for 7 years. That application was referred to this Board, and we have chosen to treat it as a motion to reconsider. In our opinion of February 21, 1949, we pointed out that the exercise of the 7th proviso with respect to aliens who have had one or more attacks of insanity has been limited to cases in which an alien had close family ties in the United States and had resided in this country for a long period of time. At that time we cited some Board precedents, without giving the facts in each case. In order to make it abundantly clear to respondent and his counsel, employer and friends, that discretionary relief has not been extended in such cases as the present one, we will cite additional precedent with the salient facts in each case. In Matter of Z-, 56171/40 (approved by the Attorney General April 30, 1946) the alien had resided in the United States since 1921 and had a legally resident alien dependent wife and a citizen son in this country. In Matter of P, 56175/672 (approved by the Attorney General May 28, 1946) the alien had lived in the United States since 1911 and had a United States citizen husband. In Matter of L, A-5426353 (approved by the Attorney General June 20, 1946) the alien had resided in the United States since 1921 and had a citizen husband and six citizen children. In Matter of K- A-1516552 (approved by the Attorney General June 24, 1946) the alien had resided in the United States since 1923 and had a minor citizen child to whose support she contributed. In Matter of S, 56171/589 (approved by the Attorney General July 18, 1946) the alien had resided in the United States since 1922 and had a United States citizen husband, two citizen children, and her mother and father resided in the United States. Matter of T-, A-6352231, (approved by the Attorney General November 4, 1946), concerned an alien who had entered the United States about 1891 and had five citizen children living in the United States. Matter of K, A— A3863367 (approved by the Attorney General November 21, 1946) concerned an alien who had entered the United States in 1905 and had a United States citizen wife and four minor dependent children. These are typical cases in which this Board has granted the 7th proviso to persons who have had a prior attack of insanity. In most of these cases the alien had been discharged as recovered, or declared sane by a court of competent jurisdiction, some years prior to the time that his case came before us. It is clear that to grant the 7th proviso to an alien who has been in the United States only seven or eight years and whose family lives abroad would be an extension of discretionary relief to cases not previously covered. Counsel has requested relief for respondent under section 19 (c) of the Immigration Act of 1917. Even though respondent has not had a recurrence of his 1942 attack, even though he did not desert his ship but was brought into this country for reasons connected with the war, and even though he is most highly spoken of by his friends and employers, under the present state of statutory and case law we deem it inadvisable on the basis of established precedent to grant him discretionary relief. It is necessary for us to refuse relief under that section for two additional reasons: (1) It has been our policy to refuse suspension to those persons who have managed to eke out seven years residence in the United States by failing to cooperate with the immigration officials. Respondent is such a person. He entered the United States on November 30, 1941. On May 19, 1946, he was granted voluntary departure and preexamination. In preexamination proceedings before a board of special inquiry he was found inadmissible on the ground that he had been certified as having had one or more attacks of insanity. On November 5, 1946, he was granted a 60-day extension of time within which to depart voluntarily and was notified that if he failed to depart, an order of deportation would be entered against him. On November 20, 1946, this Board affirmed that decision. At that time respondent had but five years residence in this country. He has acquired the additional two years to complete the necessary seven years residence. He has done so, however, by his failure to leave when he was given an opportunity to do so. Of his own volition he chose to remain in the United States, and the consequences of his choice are deportation. (2) It has been the general policy of this Government to return to their native countries all aliens whose presence in the United States has been solely because of reasons connected with the war. Immigration procedures providing for adjustment of status in the United States have not been applied to their cases, except where such persons are married to American citizens who are dependent upon them for support. Respondent entered the United States on November 20, 1941, at New York as a member of the crew of the Finnish S.S. Kurikka. On December 7, 1941, that vessel was taken over by the United States Coast Guard, and respondent was delivered to Ellis Island. Respondent was not interned in an alien enemy camp, as were many alien seamen who were brought into the United States under similar circumstances and whose ships were commandeered for security purposes. He was permitted to remain in the United States and to work ashore. Otherwise, there is no distinction between his case and that of many other aliens who were required to leave the United States upon the termination of hostilities. In Matter of L— A-5955999 (February 8, 1946), the Attorney General held (reversing this Board and sustaining the Commissioner) that an alien brought into the United States because of reasons connected with the war would not be granted discretionary relief (with the exception noted above, not applicable here, which became part of departmental policy subsequent to the date of the L-case). Respondent's family ties are abroad. Therefore, the policy set forth above forbids grant of relief in this case. Due to present political conditions in Finland respondent objects to returning to that country. We will permit him to depart under the warrant to any country of his choice within 30 days. This does not mean that he is again being given voluntary departure or that he is not considered to have been deported. It merely gives him the opportunity to make arrangements to go to some country other than Finland, if it is possible for him to do so. Order: It is ordered that the motion to reconsider be denied. It is further ordered, That the alien be permitted to depart from the United States, or ship foreign one way, without expense to the Government, to any country of his choice, within 30 days, on consent of surety, such departure to be verified and considered a satisfactory compliance with the terms of the warrant. Departure in accordance with the foregoing will be deemed sufficient to cancel the outstanding delivery bond. It is further ordered, That if the alien does not effect his departure in accordance with the foregoing order, that he be deported to Finland at the expense of the Government of the United States. Editor's note.-On June 28, 1950, the hearing was ordered reopened for further medical evidence regarding the attack of insanity, the outstanding order and warrant of deportation being withdrawn. IN THE MATTER OF B In DEPORTATION Proceedings A-3087364 Decided by Central Office February 6, 1950 Motion by Central Office May 7, 1951 Decided by Board August 2, 1951 Decided by Acting Attorney General September 11, 1951 "Neutral alien," claiming exemption from service in the United States Armed Forces Ineligibility to United States citizenship—Section 3 (a) of the Selective Training and Service Act of 1940 (as amended)—Whether alien here in legal status of nonimmigrant is "residing" here within meaning of above act and regulations thereunder. A neutral alien (Lebanon citizen), who came here as a visitor for business in 1939 and received extensions of stay covering the period of time he remained here (he departed September 22, 1945), filed DSS Form 301 (application for relief from military service here) on November 4, 1942. Under section 3 (a) of the Selective Training and Service Act of 1940 (as amended), and applicable regulations thereunder (see Executive Order 8545 of September 23, 1940) (F. R. 3786, September 25, 1940) he was found to be a "resident" within the meaning thereof, when he filed DSS Form 301 on November 4, 1942; consequently he was deemed to be ineligible to citizenship thereafter. (The Supreme Court decision of December 11, 1950, in McGrath v. Kristensen, 340 U. S. 162, was discussed.) CHARGE: Warrant: Act of 1924-Remained longer-Visitor. BEFORE THE CENTRAL OFFICE (February 6, 1950) Discussion: Upon consideration of the entire record, the findings of fact and conclusions of law proposed by the Presiding Inspector and served upon the alien's attorney on November 15, 1949, are hereby adopted. The alien's attorney took exception as to the proposed conclusion of law as to discretionary relief and the proposed order of deportation. |