A-684548
Decided by Board April 21, 1949 Decided by Acting Attorney General December 31, 1949
Excludability — No immigration visa — Section 13, act of 1924, as amended — Waiver, as to returning resident alien, by Attorney General under section 13 (b) of the act of 1924, in which State Department joins as to a waiver under section 30 of the Alien Registration Act of 1940 — Power of State Department to waive under section 30, supra, immigration visas required under section 13 of the act of 1924, as amended.
1. The power of the State Department to waive visas found in section 30 of the Alien Registration Act of 1940 is concerned only with the requirement found in that section that all aliens seeking to enter the United States must have some document, either a visa, a reentry permit, or a border crossing card, except in emergency cases it defined.
2. The Immigration Act of 1924 not only requires as a condition for admission to the United States that immigrants (except certain children), must have immigration visas but defines the status of all aliens seeking entry here and sets up quota limitations upon the entry of certain alien immigrants, and the only exemption for waiving immigration visas under the act of 1924 is that by the Attorney General, under section 13 (b) thereof, as to returning residents.
3. As to a returning resident who requires an immigration visa, the waiver granted by the Attorney General under section 13 (b), supra, is not enough; he must also have a waiver by the State Department of the document which section 30 ( supra) requires, before such returning resident may be admitted without documents. Section 30 ( supra) adds to the existing requirements of law but does not amend any of the requirements of the Immigration Act of 1924.
4. A nonquota immigrant (qualified as such under section 4 (a) of the act of 1924), who is not a returning legal resident, cannot have the immigration visa required by the provisions of section 13 of the act of 1924, as amended, waived by the State Department under section 30 of the Alien Registration Act of 1940.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — No immigration visa.
Executive Order 8766 — No passport.
BEFORE THE BOARD
Discussion: This case comes before the Board on motion of counsel to reconsider our dismissal of an appeal from an order entered by the Acting Commissioner, March 9, 1948, affirming the appellant's exclusion and directing that the parole action of the port be terminated upon her application for suspension of deportation.
The appellant, a native and citizen of China, female, 63 years of age, married to an American citizen, desires to enter the United States for an indefinite period. Prior to her departure from China she appeared before the American vice consul at Hong Kong, China, and executed what she was led to believe were sufficient documents for entry into the United States. It now appears that these documents are insufficient for the appellant's entry. Furthermore, the evidence affirmatively establishes that the appellant qualifies for a nonquota immigration visa under section 4 (a) of the Immigration Act of 1924 as the wife of an American citizen.
The facts of the case clearly indicate that the appellant has been placed in an unfortunate position because of what appears to be a misunderstanding. Counsel on appeal urged that the appellant be permitted to enter with the documents in her possession and that the State Department be requested to waive visa requirements. We answered the position taken by counsel by stating that we were unaware of any power vested in the Department of State to waive visa requirements in a case of this nature.
Counsel in the motion now before us refers to a communication dated November 8, 1948, addressed to the Attorney General by the Department of State wherein that Department suggests certain administrative action on the part of both departments to permit the alien to remain in the United States with her American citizen husband inasmuch as information available indicates that the misunderstanding was not occasioned by any dereliction on the part of the alien. The Department of State takes the position that under the provisions of section 30 of the Alien Registration Act of 1940 ( 54 Stat. 673; 8 U.S.C. 451), the Secretary of State is clothed with the authority to waive in emergency cases any immigration visa except one which requires the allotment of a quota number, the procedure for the adjustment of entry under the quota being separately provided for in the immigration law.
Section 30 of the Alien Registration Act of 1940 reads as follows:
"Any alien seeking to enter the United States who does not present a visa ( except in emergency cases defined by the Secretary of State), a reentry permit, or a border crossing identification card, shall be excluded from admission to the United States."
Predicated upon the foregoing interpretation of section 30 ( supra), the Department of State is disposed to waive in the appellant's behalf the visa requirements of section 4 (a) of the 1924 act, provided the Immigration and Naturalization Service makes a nunc pro tunc approval of the appellant's petition for a nonquota visa in accordance with the requirements set forth in section 9 of the Immigration Act of 1924. The question before us, therefore, is whether the provisions of section 30 ( supra) constitute sufficient authority to waive immigration visas required by the provisions of section 13 of the Immigration Act of 1924, as amended.
It is our conclusion that the power to waive visas found in section 30 of the Alien Registration Act is concerned only with the requirement found in that section that all aliens seeking to enter the United States must have either a visa, a reentry permit or a border-crossing card. The Immigration Act of 1924 not only required as a condition for admission to the United States that immigrants must have immigration visas but defined the status of all aliens seeking entry to this country and sets up quota limitations upon the entry of certain alien immigrants. Section 30 of the Alien Registration Act is not concerned with status — it is only concerned with the requirement that all aliens coming to the United States be documented in one way or another with exception of emergency cases defined by the Secretary of State. It leaves to other laws and executive orders the type of documents aliens of varying status must present.
The Immigration Act of 1924 over and above requiring immigration visas of immigrants (excepting children born after the issuance of a visa to an accompanying parent) defines the term "immigrant" and "nonquota immigrant" and describes in detail immigration visas. There is no provision in the 1924 act for waiving immigration visas except subdivision (b) of section 13 relating to returning residents and here the waiver is by the Attorney General and not the Secretary of State. (It is necessary, however, not only for the Attorney General to waive an immigration visa under section 13 (b) of the 1924 act but for the Secretary of State to waive a visa under section 30 of the Alien Registration Act before a returning resident may be admitted without documents.) There is nothing in the legislative history of section 30 of the Alien Registration Act which indicates Congress had any thought of amending any of the requirements of the Immigration Act of 1924. On the contrary, Congress was adding to existing requirements of law.
The power of the Secretary of State to waive visas under section 30 of the Alien Registration Act has been exercised in regard to nonimmigrants (visitors, transits, etc.) and in conjunction with the Attorney General under section 13 (b) of the 1924 act to returning residents. If there be power in the Secretary of State to waive nonquota immigration visas, he has equal power to waive quota immigration visas for the language of the statute (sec. 13 (a) of the 1924 act) is the same as to both. If this construction be correct, by waivers the Secretary of State could nullify the quota limitations of the 1924 act. The suggestion by the State Department that first a visa petition under section 9 of the 1924 act must be filed and approved before the Secretary of State may waive a visa under the Alien Registration Act seems entirely beside the point. If section 30 of the Alien Registration Act is in fact an amendment of the Immigration Act of 1924, then the Secretary of State has power to waive immigration visas irrespective of whether a petition under section 9 is filed. We do not believe the statute is susceptible of such interpretation.
The emergency cases wherein visas may be waived as contemplated under section 30 of the Alien Registration Act of 1940 have been defined in both title 22 C.F.R., part 61 and title 8 C.F.R., part 176. None of the provisions set forth authorize a waiver under the conditions here presented. In our judgment, the provisions of section 30 ( supra) do not constitute authority to waive nonquota visas under the Immigration Act of 1924. The safeguards set up by Congress regarding documents required by the Immigration Act of 1924 should not be reduced in the absence of clear congressional intent to do so. Especially is this so since in the majority of cases which present circumstances, such as the one before us, discretionary relief under section 19 of the 1917 act is usually permissible to prevent undue hardship to the alien. The motion will be denied and the case referred to the Attorney General for review because of the differences of opinion referred to above.
Order: It is directed that the motion be and the same is hereby denied.
Pursuant to part 90.12 (b), title 8 C.F.R., the case is hereby certified to the Attorney General for review of the Board's decision.
The decision and order of the Board of Immigration Appeals dated April 21, 1949 are hereby approved.