A-5493079
Decided by Board May 7, 1956
Entry — Definition of United States — Citizen of Philippine Islands traveling between Hawaii and continental United States.
(1) An alien proceeding from Hawaii to continental United States was subject to inspection under section 1 of the Immigration Act of 1917. However, in view of the definition of "United States" contained in section 28 (a) of the Immigration Act of 1924 and section 38 (a) (1) of the Alien Registration Act of 1940, an alien proceeding from Hawaii to the mainland was merely traveling between two ports of the United States and, hence, was not subject to visa requirements.
(2) Under section 8 (a) (2) of the Philippine Independence Act, effective May 1, 1934, Filipinos who were not citizens of the United States became aliens for immigration purposes and were barred from admission to continental United States from Hawaii (unless they were admitted to Hawaii with an immigration visa) except as nonimmigrants under section 3 of the 1924 act or, in certain instances, as nonquota immigrants. The restriction as to entry to the mainland from Hawaii was continued in section 212 (d) (7) of the Immigration and Nationality Act.
(3) Respondent, a Filipino who was admitted to Hawaii in 1922 as a United States national and whose only entry into continental United States was at San Francisco on December 11, 1946, at which time he was admitted as a visitor for 30 days, is held to have been a bona fide visitor who was properly admissible under the exception relating to nonimmigrants contained in section 8 (a) (2) of the Philippine Independence Act.
(4) In these circumstances, the respondent cannot be found deportable under section 241 (a) (1) of the 1952 act as having been excludable at the time of entry as not being in possession of an immigration visa. However, he is deportable for having remained in continental United States for a longer time than permitted.
CHARGE:
Warrant: Act of 1952 — Excludable at entry — no immigration visa.
BEFORE THE BOARD
Discussion: This case is before us on appeal from a decision of a special inquiry officer granting voluntary departure and directing that the respondent be deported if he fails to depart voluntarily.
The respondent is a 48-year-old male, native and citizen of the Philippine Islands, who was admitted to Hawaii on February 9, 1922, as a United States national. His only entry into continental United States occurred on December 11, 1946, and he has since remained here. The special inquiry officer found that the admission on December 11, 1946, was for a period of 30 days under section 1 of the Act of 1917. He concluded that the respondent was deportable on the charge stated in the warrant of arrest because he was excludable in 1946 under the Immigration Act of 1924 by reason of not being in possession of an immigration visa at that time.
We have carefully considered the representations of counsel and the special inquiry officer's discussion of the case. The reasons advanced by the latter for reaching his conclusion do not indicate that the warrant charge can be sustained, and the important consideration, namely, the effect of the Philippine Independence Act of March 24, 1934 ( 48 Stat. 456), was not mentioned. The record relating to the respondent's arrival at San Francisco shows his citizenship as "U.S. National"; that he was in possession of "Alien's I-146"; and that he had been admitted for 30 days under section 1 of the Act of 1917. The form I-146 is referred to in former 8 CFR 128.2 as a document issued to aliens residing in Hawaii. Full independence was granted to the Philippine Islands as of July 4, 1946 (Presidential Proclamation No. 2695, 60 Stat. 1352), and the respondent was, therefore, no longer a United States national when he arrived at San Francisco on December 11, 1946 ( Cabebe v. Acheson, 183 F. (2d) 795 (C.A. 9, 1950)).
The Immigration Act of 1917 required the inspection of arriving aliens and their admission or exclusion. If they were found admissible, there was no authority in that act to limit their admission to 30 days or any other specified period. Section 1 of the 1917 act specifically provided that the term "United States" shall be "construed to mean the United States, and any waters, territory, or other place subject to the jurisdiction thereof, except the Isthmian Canal Zone; * * *." Hence, under the Immigration Act of 1917 Hawaii was included in the term "United States."
There was, however, a further provision in section 1 of the Immigration Act of 1917 reading, "if any alien shall leave the Canal Zone or any insular possession of the United States and attempt to enter any other place under the jurisdiction of the United States, nothing contained in this Act shall be construed as permitting him to enter under any other conditions than those applicable to all aliens." Haymes v. Brownell, 131 F. Supp. 784 (U.S.D.C.D.C., 1955), cited by counsel, is not in point because there the arrival in continental United States occurred on June 7, 1953, which was after the effective date of the Immigration and Nationality Act. For the purposes of the Immigration Act of 1917, Hawaii was an insular possession and an alien proceeding from Hawaii to continental United States was subject to inspection under the 1917 act ( Nakazo Matsuda v. Burnett, 68 F. (2d) 272 (C.C.A.9,1933)).
Section 28 (a) of the Immigration Act of 1924 defined the term "United States" as meaning "the States, the Territories of Alaska and Hawaii, the District of Columbia, Puerto Rico, and the Virgin Islands; * * *." An identical definition of the term "United States" is contained in section 38 (a) (1) of the Alien Registration Act of 1940. Under the acts of 1924 and 1940, travel from Honolulu to San Francisco is merely travel between two ports of the United States (36 Op.Atty.Gen.352 (1930)).
Section 3 of the Immigration Act of 1924 specifically provides that the term "immigrant" means any alien departing from any place outside the United States destined for the United States with certain exceptions. Insofar as the 1924 act is concerned, the respondent was not an immigrant in 1946 and did not require an immigration visa because when he left Hawaii he was not departing from a place outside the United States. Since the warrant of arrest asserts that the respondent was excludable in 1946 under the Immigration Act of 1924 because he was an immigrant not in possession of a visa, it is clear that this charge is not sustained.
As we have indicated above, the important consideration in this case is the legal effect of the Philippine Independence Act of March 24, 1934, which became effective on May 1, 1934. Section 8 (a) (1) of that act provided that, for the purposes of the immigration laws, "citizens of the Philippine Islands who are not citizens of the United States shall be considered as if they were aliens." Section 8 (a) (2) of that act is, in part, as follows:
(2) Citizens of the Philippine Islands who are not citizens of the United States shall not be admitted to the continental United States from the Territory of Hawaii (whether entering such Territory before or after the effective date of this section) unless they belong to a class declared to be nonimmigrants by section 3 of the Immigration Act of 1924 or to a class declared to be nonquota immigrants under the provisions of section 4 of such Act other than subdivision (c) thereof, or unless they were admitted to such territory under an immigration visa. * * *
Section 8 of the Act of March 24, 1934, was specifically repealed by section 403 (a) (35) of the Immigration and Nationality Act, but section 212 (d) (7) of the latter act contains a proviso which, in effect, continues the prohibition previously contained in section 8 (a) (2) of the Act of March 24, 1934. Therefore, commencing on May 1, 1934, and continuing until the present time the respondent has been inadmissible to continental United States for permanent residence. When the respondent entered continental United States on December 11, 1946, he was no longer a national of the United States but was an alien for all purposes. Under section 8 (a) (2) of the Act of March 24, 1934, he was inadmissible to the United States unless he came within the exceptions mentioned therein, one of those relating to aliens who were nonimmigrants under section 3 of the Immigration Act of 1924. Exhibit 2 shows that he was coming to the United States for the purpose of a visit and he was actually admitted for 30 days. Under these circumstances, we believe it is clear that he was found to be a bona fide nonimmigrant visitor who was admissible under the exception.
It appears that the respondent is deportable because he remained in continental United States for a longer time than permitted. Since he was not charged with being deportable on that ground, we consider it appropriate to reopen the hearing in order that the proper charge may be lodged. Counsel has stated that it was his intention to apply at the hearing for whatever discretionary relief might be granted to the respondent but that a formal application for suspension of deportation was not made through inadvertence. The application and supporting evidence may be submitted at the reopened hearing and the Government and the respondent may introduce any other pertinent evidence.
Counsel stated that the respondent enlisted in the United States Army in December 1941 and served through the course of the war, being honorably discharged in 1946. The transcript of testimony contains no indication that the respondent had served at any time in the United States Army. We note that in the concluding question he stated that he would like to become a citizen of the United States. Under section 326 of the Immigration and Nationality Act, the respondent apparently is regarded as having been lawfully admitted to the United States for permanent residence for the purpose of petitioning for naturalization. In view of the provisions of section 329 of the same act, the respondent presumably may file a petition for naturalization on the basis of his Army service regardless of whether he was lawfully admitted. However, under section 318 of the act he could not be naturalized while this proceeding is pending. The Attorney General has authority to terminate a deportation proceeding for the limited purpose of permitting the alien to file a petition for naturalization and to be heard thereon by the naturalization court, and that authority has been delegated to this Board ( Matter of B----, A-4587587, 6 IN Dec. 713 (1955)).
See also 8 CFR 4.2 (g) (1).
If the respondent desires to apply for naturalization and counsel is of the opinion that he meets all of the requirements for naturalization, he may make a motion at the reopened hearing that the case be submitted to this Board for termination of the proceedings for the sole and limited purpose of permitting the respondent to file a petition for naturalization and to receive a final hearing thereon. In that case, a stipulation should be entered into by the parties that, if the petition for naturalization is denied, the hearing be reopened for the purpose of permitting the filing of an application for suspension of deportation and that the present deportation record as supplemented at the reopened hearing shall constitute the record for deportation purposes.
Order: It is ordered that the hearing be reopened for further proceedings in accordance with the foregoing.