A-6295221, 2
Decided by Board October 9, 1947
Parole — Administrative device of long standing — Extraordinary remedy.
Though an alien's exclusion by a Board of Special Inquiry, as to which there is no appeal (from the decision of the Board of Special Inquiry), cannot be considered on its merits by an appellate body such as the Board of Immigration Appeals, such Board has jurisdiction to authorize such alien's parole; as the case is exceptionally meritorious and immediate deportation would be inhumane, the extraordinary remedy of parole may be exercised (both by the Board and the Service).
BEFORE THE BOARD
Discussion: The aliens are a mother and daughter, 51 and 20 years of age respectively, natives and citizens of Portugal. They arrived in the United States on January 23, 1947, and applied for admission for permanent residence. The Board of Special Inquiry at the port of New York excluded the daughter as mentally defective and the mother as an accompanying alien. The mother on behalf of the daughter then declined to appeal the medical finding to a medical board. The Commissioner on February 7, 1947, affirmed the excluding decision as to both aliens, the excluding decision with respect to the mother being made without prejudice to a reapplication for admission within 1 year. On February 17, 1947, we affirmed the Commissioner's decision.
On April 23, 1947, the Commissioner recommended to us that the hearing be reopened to permit the daughter to appeal to a medical board. We accepted the Commissioner's recommendation and so ordered in our decision of April 29, 1947. The medical board confirmed the certificate issued by the examining doctors. The Board of Special Inquiry again excluded the aliens and again on the same grounds as were urged after the end of the first hearing. On June 30, 1947, the Commissioner took no action on the alien's request for parole and affirmed the excluding decision with respect to the mother without prejudice to a reapplication for admission within 1 year. In his decision the Commissioner stated that he had no jurisdiction to consider the daughter's case in view of her exclusion as being a mentally defective person.
We reviewed the Commissioner's decision on August 13, 1947. We agreed with him that the daughter had no appeal from the excluding decision, but expressed the opinion that we had the power to parole. Because of the favorable factors in the case, we authorized the parole of both aliens for a period of 6 months under a $500 bond. At the same time we affirmed the excluding decision and directed that at the end of the 6-month period the daughter was to report to the United States Public Health Service for a further examination.
Upon the request of the Immigration and Naturalization Service we stayed execution of our order of August 13, 1947, to permit it to file a motion for reconsideration. This motion, dated August 20, 1947, and served upon counsel for the aliens, has now been filed. In it the Commissioner contends that we had no jurisdiction to authorize the aliens' parole and requests that his order of June 30, 1947, be affirmed.
As we said in our decision of August 13, 1947, we did not have, nor do we now have, the power to consider the daughter's case on its merits. By reason of the Public Health Service's certificate, her case, so far as concerned her inadmissibility as a mentally defective alien, terminated at the Board of Special Inquiry level. But because we, and, of course, the Commissioner also, are thus limited in considering cases where an excluded alien has no right of appeal to the Attorney General, does not mean that the Immigration and Naturalization Service and this Board are to be denied the power to parole in those cases where humane considerations dictate such action.
Parole is an administrative device of long standing. It has been employed for more than 25 years in many types of cases. For example, the power to parole has been used to permit inadmissible aliens to adjust their immigration status where they entered without or with improper documents, to defend criminal prosecutions, to testify in criminal cases for the Government, to report for induction into the Armed Forces, to apply for registry and to apply for naturalization. Finally, it has been employed in cases like the instant one, where the inadmissible alien has no right of appeal. See Kaplan v. Tod, 267 U.S. 228 (1925); U.S. ex rel. Fink v. Tod, 1 F. (2d) 246 (C.C.A. 2d, 1924); U.S. ex rel. Patton v. Tod, 297 Fed. 385 (C.C.A. 2e, 1924); Matter of S----, 6665489 (September 25, 1947).
Parole is an extraordinary remedy. It is not employed indiscriminately. Its use is reserved only for those exceptionally meritorious cases where immediate deportation would be inhumane. In this regard, what we said in Matter of D---- and R----, 56197/15, 56197/6 (January 25, 1946, approved by Attorney General, February 7, 1946) bears repeating. "Perhaps the correct test (in employing the device of parole) is whether the execution of the exclusion order would react so unfavorably or unjustly to the alien involved so as to require from a humane consideration some relief. And this, of course, requires carefully weighing the facts in each record. Acting on this premise, some aliens have been paroled into the United States with the thought of a later adjustment of their immigration status."
We pointed out in our decision of August 13, 1947, why we felt these aliens should be paroled. We shall not repeat those reasons here. We only wish to add that in paroling the aliens, they do not acquire a legal residence under the immigration laws. They remain under the jurisdiction of the Immigration and Naturalization Service. Their cases are not closed. If, on subsequent examination, the daughter alien is still certified as mentally defective, the excluding decision may still be effected. On the other hand, if the child, in an environment free from restraints, improves and is no longer classifiable as mentally defective, she and her mother may then be admitted for permanent residence. In this way the Government is protected and the aliens are afforded every reasonable opportunity to establish their eligibility and admission into the United States, thus avoiding an unfortunate family separation.
Order: The Commissioner's motion for reconsideration is denied.