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IN THE MATTER of K

In DEPORTATION Proceedings

A-6190143

Decided by Board August 15, 1952

Suspension of deportation, economic detriment-Section 19 (c) (2) of the Immigration Act of 1917, as amended-Exercise of discretion.

(1) The exercise of the discretionary power to grant suspension of deportation pursuant to section 19 (c) of the Immigration Act of 1917, as amended, is not warranted in the case of an alien husband, native of Austria and a naturalized citizen of Canada, and alien wife, native and citizen of Czechoslovakia, who have been in the United States for a period of less than 2 years and may be able to depart to Canada, the place of former residence, despite the fact that they have two native-born United States citizen dependent children.

CHARGE:

Warrant: Act of 1924-Remainder longer-visitors (both aliens).

BEFORE THE BOARD

Discussion: This is an appeal from the decision of the Assistant Commissioner on May 6, 1952, in which the respondents were found deportable on the charges in the respective warrants of arrest, voluntary departure was granted with the alternative order that if the respondents failed to depart, that they be deported pursuant to law. In oral argument before this Board counsel has urged that suspension of deportation be granted asserting that it is doubtful whether the respondents will be able to obtain immigration visas should they depart voluntarily because of the status of the quota of the countries of their respective nationalities. It is stated that should they be required to depart, a serious economic detriment would result to two American citizen infant children.

The husband is a native
The wife is a native and

The sole question under consideration is whether suspension of deportation should be granted to these aliens. These respondents are husband and wife. of Austria, a naturalized citizen of Canada. subject of Czechoslovakia. The respondents last entered the United States at Champlain, N. Y., on foot on November 7, 1950, at which time, it is alleged, that they were admitted together as temporary visitors for a period of 2 or 3 weeks. The entry of the female alien has been verified. She was admitted for a period to December 6, 1950, as a visitor. The entry of the male alien has not been verified. The aliens have remained beyond the period for which they were admitted and

are deportable under the provisions of the Immigration Act of May 26, 1924, on the charge in the respective warrants of arrest which relate to each of them.

This record establishes that these aliens were married to each other on November 16, 1947. The female alien, who had been admitted to the United States for permanent residence on December 20, 1946, at the port of New York, was a legally resident alien at the time of the marriage. The male alien was a naturalized citizen and resident of Canada at the time of the marriage. However, the female alien took up residence in Canada on May 7, 1949, where her husband was then residing and continued to live in Canada up to November 7, 1950. The respondents have two children, the issue of the marriage, born in the United States. These children are American citizens. The male alien is operating a fruit and vegetable business from which he derives a livelihood for himself and his children. His business and the personal assets and cash are estimated to be of the value of $2,800. The female alien is unemployed. It is obvious that the deportation of the aliens would result in a serious economic detriment to their American citizen infant children.

This record indicates that these aliens are persons of good moral character who have no criminal record. It appears that they have no connection with subversive groups. However, it is to be noted that these are aliens who recently arrived in the United States as visitors and who have overstayed the period for which they were admitted. They have been in the United States for a period of less than 2 years. Although the birth of two minor citizen children has made them statutorily eligible for suspension of deportation, it does not necessarily follow that that relief should be granted. In fact, it is believed that voluntary departure is the maximum relief to which the respondents are entitled. It appears that they should be able to depart to Canada, the place of former residence. Should Canada refuse to readmit them further consideration should then be given by this Board to their applications for suspension of deportation.

Order: It is ordered that the applications for suspension of deportation be denied without prejudice to reconsideration upon a showing by the aliens that their admission to Canada has been refused.

It is further ordered, that the outstanding order of the Assistant Commissioner on May 6, 1952, be withdrawn and that the aliens be permitted to depart from the United States voluntarily without expense to the Government, to any country of their choice, within such period of time, in any event not less than 60 days, and under such conditions as the officer in charge of the district deems appropriate. It is further ordered that if the aliens do not depart from the United States in accordance with the foregoing, the order of deportation be reinstated and executed.

IN THE MATTER OF M

In DEPORTATION Proceedings

A-7961362

Decided by Board August 20, 1952

Board of Immigration Appeals: Jurisdiction on motion to reopen.

(1) The hearing officer's denial of a motion to reopen is final and there is no appeal to the Board of Immigration Appeals from such decision when the motion does not set forth a ground upon which an appeal from the original decision of the hearing officer could have been taken (8 C. F. R. 151.6 (b) and 151.5 (e), effective May 24, 1952)).

BEFORE THE BOARD

Discussion: This record relates to a 19-year-old male, unmarried, a native and citizen of Transjordan, who last entered the United States at New York, N. Y., February 23, 1951, and was admitted as a student under section 4 (e) of the Immigration Act of 1924 for a period of 1 year. The alien was admitted for the purpose of attending the University High School at the Louisiana State University at Baton Rouge, La. Respondent did not actually enter school until September of 1951 and at that time he entered the Baton Rouge High School rather than the school to which he had been destined. He remained in that school for a short time and then transferred to the Istrouma High School also located in Baton Rouge. The record indicates that respondent started working part time about 2 weeks after his entry and continued working at least part time during his stay in the United States without the permission of the proper immigration authorities.

Respondent was apprehended on March 6, 1952, under a warrant charging him with violation of the Immigration Act of May 26, 1924, in that he had remained in the United States after failing to maintain his exempt status of a student under which he was admitted. Hearing was held thereon on March 7, 1952, wherein respondent requested voluntary departure. The hearing officer found respondent deportable on the charge in the warrant of arrest and, it appearing that respondent was without funds to depart voluntarily, ordered him deported pursuant to law. No exceptions were taken to that order.

Counsel on July 17, 1952, submitted a motion for (1) an order staying all proceedings in the matter pending final determination of the motion; (2) an order directing the reinstatement of respondent to his former status as a student under section 4 (e) of the Immigration Act of 1924; (3) for such other and further relief as may seem fair and proper under the circumstances. The hearing officer considered the motion as a motion for reopening of the hearing in accordance with 8 C. F. R. 151.6. The hearing officer, finding nothing in the motion submitted by respondent's attorney nor in the affidavit executed by respondent that would justify any further proceedings in the matter, denied the motion. This case is before the Board on appeal from that decision.

The procedure for the reopening of a hearing in deportation cases is governed by 8 C. F. R. section 151.6. Paragraph (a) thereof sets out the procedure by which a case may be reopened. Paragraph (b) provides, in material part: "The decision of the hearing officer upon a motion shall be final subject to the limitations imposed by paragraph (e) of section 151.5."

Inasmuch as no exceptions were seasonably taken to the findings and conclusions of the hearing officer pursuant to hearing on the deportation charge, as provided by section 151.5, the decision of the hearing officer on the motion to reopen is final. No jurisdiction rests in this Board to disturb his decision thereon. The appeal will therefore be dismissed.

Order: It is ordered that the appeal be, and the same is hereby dismissed.

IN THE MATTER OF G

In DEPORTATION Proceedings

A-8247543

Decided by the Board September 2, 1952

Visa: Invalidity thereof when procured by fraud or misrepresentation-Materality: False testimony as to financial responsibility by applicant for immigration visa.

(1) Misrepresentations made by an applicant for the issuance of an immigration visa concerning his financial responsibility of a nature as to justify the refusal of a visa had true facts been disclosed are material.

(2) An immigration visa issued under the Immigration Act of 1924 is considered invalid when procured by material misrepresentations as to financial status. CHARGE:

Warrant: Act of 1924-No immigration visa.

BEFORE THE BOARD

Discussion: By order dated August 25, 1952, the Assistant Commissioner certified this case for a decision in accordance with 8 C. F. R. 151.5 (g). The alien has been given notice of this referral and an opportunity to submit a brief or request oral argument but has made no representations. The hearing officer has found the alien deportable on the charge stated above. With this conclusion we concur.

The charge in the warrant of arrest is sustained on the theory that the alien's admission for permanent residence on January 23, 1952, was invalid since it was based on a visa procured by false and misleading statements as to the alien's likelihood of becoming a public charge. This admission therefore, did not give him the rights of a person lawfully admitted for permanent residence and his last entry on July 18, 1952, to resume residence after a short visit to Canada could be accomplished lawfully only upon the presentation of an immigration visa. The main question to be determined therefore is whether the visa procured by the alien on January 23, 1952, at Windsor, Ontario, Canada, was obtained by false and misleading statements.

The alien is a 25-year-old single male, a native and citizen of Canada. His parents are natives, citizens, and residents of Canada. They are separated. In Canada, he resided with his mother. He has no close

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