entry. The order of the Board of Immigration Appeals is contrary to that well settled rule.

Matter of C, 1, I. & N. Dec. 631, which is the sole case cited by the Board of Immigration Appeals in support of its position that 7th proviso relief may be granted to an alien who was deported prior to the lapse of 7 years from the date of his entry, is also cited by the Attorney General in the quotation set forth above. It is obvious from the quotation that the Attorney General considered the situation in the Matter of C—to be entirely different from those cases in which an alien was deported or excluded prior to the lapse of 7 years. A reading of Matter of C (supra), reveals the Attorney General expressedly indicated that Matter of CH de S― (supra), and Matter of P—— (supra), were cases dealing "with distinguishable factual situations, involving, respectively, a deportation and an exclusion order." 2

In the Matter of C—, the applicant was lawfully admitted for permanent residence and was physically within the country for 6 years and 4 months. He then went to Canada, first obtaining a reentry permit. After spending several months in Canada he presented himself for readmission within the time limit prescribed by his reentry permit. He was certified by a Public Health surgeon as afflicted with class A, pulmonary tuberculosis. He was excluded by a Board of Special Inquiry less than a month before the lapse of 7 years after his admission to the United States for permanent residence. His case was then treated as an advance application for the exercise of the 7th proviso. When his case was decided by the Board of Immigration Appeals, the Board stated, “An alien whose case is on appeal is neither admitted nor excluded until the appeal is decided. It is therefore clear that the subject may now have a domicile of 7 years if his temporary absence in Canada may be considered." [Italics added.] The Board exercised the 7th proviso on behalf of the applicant. The matter was brought before the Attorney General where the decision of the Board of Immigration Appeals was affirmed. The Attorney General stated, "He (applicant) has not yet been admitted (but has not been excluded) because, while tuberculosis is arrested, the Public Health Service regards his condition as too recent to be considered as cured." [Italics added.]

The Matter of C-- holds that where an alien voluntarily departed (in contrast to having been excluded and deported or arrested and deported) his period of absence abroad, if temporary in nature, could be considered residence within the United States for the purposes of 7th proviso relief. Thus, in Matter of C—, the alien had neither

2

H de S involved an

So in the original; however, Matter of Cexclusion proceeding and Matter of P— involved a deportation.

been excluded nor deported when his application for relief was being considered by the Board of Immigration Appeals and the Attorney General; he then had in excess of 7 years' residence in the United States and 7th proviso relief could properly be exercised.

In view of the facts that the Attorney General in the Matter of C—, expressly distinguished the situation in Matter of C from those cases where an alien was deported or excluded, and in view of the fact that the alien in Matter of C, was neither excluded nor deported, we must hold that Matter of C is inapplicable to the present case where the alien was deported and that the rule set forth in Matter of CB de S and Matter of P-, and reffirmed by the Attorney General in two subsequent decisions, must control herein.

The alien herein having been deported prior to the lapse of 7 years from the date of his entry into the United States, his foreign residence subsequent to deportation, may not now be tacked on to his residence prior to deportation to make up a total of 7 years for the purpose of the 7th proviso.

Since the Board's decision in the instant case will establish a precedent which is in disregard of holdings by the Attorney General, and as it will have serious consequences in its effect on the enforcement of immigration laws, the case should be returned to the Board for further consideration.

Motion is hereby made, That the Board of Immigration Appeals reconsider and withdraw its order of April 21, 1950, and that it enter an order affirming the order of this Service dated February 6, 1950, directing the alien's deportation to Italy.

It is further moved, That in the event the Board of Immigration Appeals does not grant the foregoing motion, it certify the case to the Attorney General for review pursuant to the provisions of 8 C. F. R. 90.12 (c).

BEFORE THE BOARD

(October 9, 1950)

Discussion: This case is now before the Board on motion by the Immigration and Naturalization Service requesting that we reconsider our decision of April 21, 1950, where we authorized voluntary departure, preexamination, and readmission to the United States under the authority contained in the 7th proviso of section 3 of the act of 1917, in reference to conviction of a crime, to wit: Tampering with and damaging the motive power of a foreign vessel within the jurisdiction of the United States and with reference to inadmissibility because of prior arrest and deportation; and instead the Service asks that we affirm the order of deportation.

The respondent in this deportation proceeding is a native and citizen of Italy. He was in the United States as a seaman on several

occasions between October 1936 and June 1940. On June 6, 1940, he arrived at Mobile, Ala., as a seaman on the Italian S. S. Ida Z. O. Because of the war, this vessel remained at Mobile and the alien remained on her until 1941 when he was interned after the ship had been sabotaged. Because of the sabotage the respondent was convicted of the crime of tampering with and damaging the motive power of a foreign vessel. In May 1943 the respondent was released on parole. His deportation had been ordered on June 11, 1941. On May 29, 1947, the respondent left the United States as a seaman. When he so departed the order of deportation was outstanding and in contemplation of law he was deported. It will be observed that his departure from this country on May 29, 1947, was just 1 week before the expiration of 7 years from the date of his entry on June 6, 1940. The respondent remained abroad for about 7 months and reentered the United States as a seaman on February 13, 1948. This was his last entry into this country.

The respondent married a native-born citizen of the United States on February 16, 1948. His wife has a child by prior marriage. He is supporting her and the child, and proceedings by him to adopt the child are contemplated.

The Immigration and Naturalization Service does not question the desirability of exercising discretion to permit the respondent to acquire legal and permanent residence in the United States and live here with his citizen wife. The crime for which he was convicted grew out of a wartime situation and in no sense indicates personal undesirability on the part of the respondent. The sole and only question raised by the Service is whether legally the 7th proviso may be exercised. The Service contends that it may not because the respondent left the United States under the order of deportation on May 29, 1947, 1 week before he had physically lived in the country for 7 years. Therefore, it is contended that he does not have a 7-year domicile in the United States. In a word, because the respondent left this country as a seaman 1 week too soon, under the position of the Service he is to be forever barred from legal permanent residence in the United States, and rejoining his citizen wife here. The position of the Service is that the view it adopts is one required by prior Attorney General decisions which are reviewed and set forth in the written motion of the Service and elaborated on in oral argument before the Board.

The consideration of this problem begins with the D case.3 This was an opinion by the Solicitor of Labor of July 17, 1934, adopted by the Department of Labor when that Department was charged with the administration of the immigration laws and followed with

out question until the P-- decision, later to be discussed. In the D—— case, the alien had been physically in the United States from September 1922 until January 1933 when he was deported, among other charges, on the ground that he admitted committing a crime involving moral turpitude, to wit: Perjury prior to his entry into the United States. D sought to return to the United States and asked that the discretion contained in the 7th proviso be invoked in his favor in reference to inadmissibility because of the crime. It was first ruled in the Department of Labor that his deportation from the United States precluded the exercise of the 7th proviso. The conclusion of the Solicitor of Labor was that deportation did not in and of itself break domicile acquired in the United States, and that there was authority to readmit D-- under the 7th proviso even though inadmissible because of crime.

The next time this issue was raised was in connection with the case of AEM— P— (File No. 55973/653). Mrs. P——— had never been lawfully admitted to the United States but lived here from January 1934 until April 16, 1938, a period of 4 years and 3 months. She was deported April 16, 1938, on the ground, among others, that she admitted committing perjury prior to entry into the United States. Since her deportation in 1938 until the case was considered in 1941, she had been making repeated efforts to return to this country. Unlike the D—— case where the alien had spent more than 7 years physically in the United States prior to deportation, in the P case the alien had spent but little more than half of the required 7 years in the country, although the full 7 years had elapsed from the date of her entry until the date her case was considered in 1941. In a memorandum to then The Assistant to the Attorney General Judge Matthew F. McGuire, Lemuel B. Schofield, then Special Assistant to the Attorney General in Charge of Immigration and Naturalization, stated:

In 1934 Charles Wyzanski, Esquire, then Solicitor of the Department of Labor, made what to me is a surprising ruling to the effect that the deportation of an alien and his absence from the United States pursuant to deportation did not interrupt his continuous domicile in this country, and made such an alien still eligible to apply for readmission under the Seventh Proviso above referred to. This Service has been acting under the authority of that opinion since that date. We believe it is wrong and will welcome an opportunity not to be obliged to follow it in the future.

In response to this memorandum, Judge Holtzoff, then Special Assistant to the Attorney General, prepared a memorandum for Judge McGuire, concluding that the opinion of the Solicitor of Labor in the D case should be deemed overruled, and that the 7th proviso should be construed as not being applicable to persons who reapply for readmission to the United States after having been deported before

they have lived in the country for as long a period as 7 years. In his discussion leading up to this conclusion, Judge Holtzoff stated:

The manifest purpose of the provision is to extend leniency to aliens who have established and maintained homes in the United States for a specified minimum period of time, if after a temporary visit abroad they are found on their return to the United States to be inadmissible under the Immigration laws. The period fixed by law is seven years. Consequently, any alien who has not lived in this country for at least seven years is not entitled to the benefit of this provision of law. Whether his residence in the United States before the expiration of the seven-year period is cut short by a voluntary departure or by deportation would seem to be immaterial.

Judge McGuire on June 4, 1941, approved the memorandum prepared by Judge Holtzoff, and stated:

Accordingly, you [Major Schofield] are authorized in the administration of the Immigration laws to regard as overruled the opinion rendered by the Solicitor of the Department of Labor in 1934 on this point, and to adopt the view that the 7th proviso does not permit the readmission to the United States of aliens who have been deported from this country before they had lived here for as long as seven years.

It is to be observed that in the D case, there was not involved the question of whether the entire 7-year period must have been spent in the United States. In that case more than 7 years was spent in this country prior to deportation. In the P—— case, as we have pointed out, little more than half the 7-year period was spent in the United States. Nevertheless, both Judge Holtzoff and Judge McGuire specifically overruled the D opinion.

The third case requiring consideration is that of C H de S. DUnlike the D and P cases, the Sand P― cases, the S matter was concerned with the question of whether an exclusion order terminated domicile in the United States. Mrs. S lived in the United States. from March 1929 until July 27, 1933, or for a period of 4 years and 4 months. After a 2 months' visit in Mexico she was excluded on September 29, 1933, and thereafter excluded on numerous occasions when she sought to come to the United States for permanent residence. When the case was considered on January 6, 1943, by the Board of Immigration Appeals, far more than 7 years had elapsed since her original entry. The exercise of the 7th proviso was essential if she were to be permanently admitted to the United States because of the admission of the commission of perjury. When the case was certified to the Attorney General, it was considered for him by Oscar Cox, then Assistant Solicitor General, who in a memorandum to the Attorney General stated:

This shows, I think, that the purpose of the Congress in enacting the 7th proviso was to relieve peculiar and unusual hardships which would result from 'File 55872/461 (1, I. & N. Dec. 376).