A-5960279.
Decided by Board May 17, 1946. Memorandum by Central Office June 6, 1946. Decided by Board July 10, 1946. Ruling by Attorney General August 15, 1946.
Voluntary departure — Member of Italian Fascist Party — Preexamination — Section 19 (c) of the Immigration Act of 1917, as amended — Discretion.
Where it was shown that an alien had become a member of the Italian Fascist Party for the sole purpose of securing a position as a seaman with Italian steamship companies, the discretionary relief of voluntary departure under section 19 (c) of the Immigration Act of 1917, as amended, was not denied, but the privilege of preexamination was denied in view of all the circumstances.
CHARGE:
Warrant: Act of 1924 — Remained longer.
BEFORE THE BOARD
(May 17, 1946)
Discussion: Upon consideration of all the evidence of record, the findings of fact and conclusions of law proposed by the presiding inspector, and served on the alien on June 25, 1945, are hereby adopted.
The presiding inspector recommends that the alien be accorded suspension of deportation in view of the fact that he is a person of good moral character, and is married to a citizen of this country who was expecting a child, and that his wife is totally dependent upon him for support. The Central Office of the Immigration and Naturalization Service recommends that the alien be deported to Italy by reason of the fact that the alien was a member of the Fascist Party and that he was at one time interned at Fort Missoula, Mont., and that the evidence relating to the respondent's alleged good character deals only with the period beginning August 1944. The Central Office claims that the respondent has not and cannot establish good moral character for the full 5-year period. The evidence in this case fails to show that the respondent has not been a person of good moral character, and since his citizen wife is dependent upon him for support, we believe the evidence sufficient to justify granting him the privilege of departing voluntarily, with preexamination. Order: It is directed that an order of deportation not be entered at this time, but that the alien be required to depart from the United States, without expense to the Government, to any country of his choice, within 6 months from date of notification of decision, conditioned upon arrangements being made with the local immigration office for verification of departure.
It is further ordered, That the alien be accorded preexamination.
Discussion: The respondent is a native and citizen of Italy, 32 years of age. He last entered the United States at Newport News, Va., on June 1, 1940, as the second officer of the Italian S.S. Aida Lauro, and was admitted for a period of 60 days. He was transferred to the Italian S.S. Mar Glauco for transshipment, but this vessel, after departing the United States, returned here without having touched at a foreign port. The respondent remained on board the Mar Glauco, as second officer, until the entire crew was removed on March 30, 1941, because of acts of sabotage against the vessel's machinery. On December 12, 1942, the Board of Immigration Appeals ordered the respondent deported to Italy on the ground that he had remained in the United States longer than the period for which he had been admitted.
On May 17, 1941, the alien was transferred to Fort Missoula, Mont., for detention, and on April 10, 1943, the Attorney General ordered him interned as an enemy alien, potentially dangerous to the public peace and safety of the United States. In the general information form attached to his alien enemy file, the respondent admits (questions 102, 103, and 108) that he and all of the members of his family were members of the Italian National Fascist Party. That file also contains the alien's petition for repatriation, executed January 6, 1943. The Parole Board at Fort Missoula, on March 16, 1943, determined that "he is a very strong Fascist." As late as February 29, 1944, the officers at Fort Missoula reflected the respondent's attitude as follows:
This alien has no preference as to who wins the war. He stated he belonged to the Fascist Party because it was conventional at that time to belong and he considered the party had done much good for Italy. He is passive in his attitude as regards to war and stated that he is not pro-anything but Italy, and he only wants that which is best for Italy. * * *
He obtained a limited parole on March 9, 1944, and was released on July 6, 1944, on interim parole. Six weeks thereafter, on August 25, 1944, he married a naturalized citizen of the United States.
The respondent petitioned for a reopening of his case, based on a change of circumstance. On March 10, 1945, the Board of Immigration Appeals granted the petition in order to permit the respondent to apply for discretionary relief. As a result of the reopened hearing, the Presiding Inspector found that the alien's wife is pregnant, is dependent on him for support, and would suffer serious economic detriment in the event of his deportation.
This Service considered the case and on March 1, 1946, determined that the alien had not clearly established his good moral character for the preceding 5 years, because he had been in custody for more than 3 years of that period and was not a free moral agent during that time; in view of this doubt, and because of the alien's admitted membership in the Fascist Party, and the other factors in this case, this Service declined to exercise any discretionary relief and ordered him deported. However, the Board of Immigration Appeals determined that the evidence failed to show that the respondent had not been a person of good moral character during the required period, and the Board granted him the privilege of voluntary departure and preexamination.
For the purpose of argument, it will be assumed that the respondent has affirmatively established his good moral character. In such case, he would be eligible for maximum discretionary relief, and suspension of his deportation should be ordered. Any discretionary relief less than that is an avoidance of responsibility of the authority which may grant relief. The basic issue in this matter is whether relief should or should not be granted to one who was a "strong Fascist" or even an ordinary member of the Fascist Party for reasons of convenience.
It is not believed that any discretionary relief should be extended to an individual who would have unquestioningly fought against this country at the dictate of his Fascist overlords. Further, it can hardly be said that this alien, who had every opportunity to recant his membership in the Fascist Party or to express opposition to that organization during the years that he has been in this country, should be the beneficiary of relief measures. It is not believed that such was the intention of Congress when it passed the Act of June 28, 1940, granting relief to hardship cases.
Accordingly, the case is returned to the Board of Immigration Appeals for reconsideration of its order granting voluntary departure and preexamination to the alien and, in the event that it does not see fit to rescind same, for certification to the Attorney General.
Order: It is ordered that, pursuant to 8 C.F.R. Part 90, the case be returned to the Board of Immigration Appeals for reconsideration and, in the event that it does not see fit to withdraw its prior order granting voluntary departure and preexamination, for certification to the Attorney General.
Discussion: The subject of this record is a native and citizen of Italy, 32 years of age, who last entered the United States at Newport News, Va., on June 1, 1940, as second officer of the S.S. Aida Lauro, and was admitted as a seaman for 60 days. The alien was subsequently transferred to the Italian S.S. Mar Glauco for transshipment; however, after sailing, this vessel returned to the United States without touching a foreign port. The alien remained as second officer on board the Mar Glauco until March 30, 1941, when the entire crew was removed by the U.S. Coast Guard because of acts of sabotage against the vessel's machinery. There is no evidence to indicate that the alien was in any way connected with the acts of sabotage.
On May 17, 1941, the alien was transferred to Fort Missoula, Mont., for detention. On December 12, 1942, this Board ordered the alien deported to Italy on the charge contained in the warrant of arrest. The Attorney General, on April 10, 1943, ordered the alien interned as an alien enemy; however, he was recommended for class B parole. On March 21, 1944, alien enemy proceedings against the alien were vacated, the Attorney General ordered his case closed and he was remanded to the Immigration and Naturalization Service. The alien remained at Ellis Island until July 6, 1944, at which time he was paroled, with instructions to report in person to the local immigration office.
On August 25, 1944, the alien was married to a United States citizen. On March 10, 1945, this Board, upon the alien's motion, ordered the proceedings reopened to permit him to apply for discretionary relief. Such application was made and at the close of the second hearing the Presiding Inspector concluded that serious economic detriment would result to the alien's citizen wife and recommended that deportation be suspended in his case. At that time it appeared that the alien's wife was an expectant mother.
Upon review the Service on March 1, 1946, recommended the alien's deportation to Italy. In the decision denying the alien's request for discretionary relief, the Service pointed out that he had been affiliated with the Fascist Party and that since he had been interned at Fort Missoula the evidence of good moral character dealt only with the period beginning in August 1944, when he was a free agent. This Board on May 17, 1946, determined that the alien had established good moral character for the required statutory period, that he was entitled to an exercise of discretion, and granted him voluntary departure and preexamination.
The case was then referred to the Board for a reconsideration of its order granting voluntary departure and preexamination, and in the event that the Board does not see fit to rescind the outstanding order for certification to the Attorney General. In the memorandum referring the case to the Board, the Service, for the purpose of argument, assumes that the alien has affirmatively established good moral character. However, the Service maintains that the basic issue in this matter is whether relief should or should not be granted to one who was "a strong Fascist," or even an ordinary member of the Fascist Party for reasons of convenience; and advances the opinion that discretionary relief should not be extended to an individual who would have unquestionably fought against this country at the dictate of Fascist overlords.
At the hearing in these proceedings, the alien testified that in Italy he was member of the maritime union to which all Italian seamen belonged, and that when 20 years of age he joined the Fascist Party only for the purpose of securing a position with one of the large Italian Line steamship companies. He further stated that his parents were not members of the Fascist Party; that one brother joined the party to get a chance to work; that in January 1940, when he was last home, his other brother was not, to his knowledge, a member of the Fascist Party; that he had a sister who, he supposed, was a member of the Fascist Party; that she was a school teacher and could not possibly have secured a position had she not joined the party. He further testified that he was not a member of any other political organization while in Italy; that he only paid Fascist Party dues; that he never attended any Fascist meetings and did not know what the Fascist Party stood for; that he was only interested in securing a job as a seaman. He further stated that he did not believe in the overthrow of the government by force or violence and did not believe in the assassination of public officials, and that such action would be murder, a crime.
There was introduced into evidence as exhibit 5 a copy of the report made by the Board members, Missoula, Mont., dated March 16, 1943, which states, among other things, that the alien is "a strong Fascist." When confronted with this report, the alien stated that when questioned by the Board he acknowledged that he was a member of the party, but gave no explanation regarding his membership, as such was not asked, and that he was not asked how he felt about the Fascist Party. He further stated that while Italy was at war he stuck to his country as an Italian, not as a Fascist; that he did not think it proper or honest to turn his shoulder against the country in which he was born; that as the war is now over, he feels free to express his thoughts, and that he "would be as honest to this country if * * * given the chance to remain here as he was to the country in which he was born."
An alien enemy report dated February 29, 1944, states that the alien would not be dangerous to the internal security of the United States if paroled, and that he would be a good parole risk; that while interned he had been cooperative, well behaved, and agreeable, and that he had no preference as to who won the war; that he was not "pro" anything but Italy, and that he was not resentful against the United States because of his internment. He was thereupon recommended for parole.
Although the complete alien enemy file has not been made a part of this deportation record, we are of the opinion that it is satisfactorily established that the alien was not a member of any subversive group, that he was not considered a dangerous alien enemy, that he was forthright about his membership in the Fascist Party and his reasons for joining that party, and that he was, above all, a loyal Italian. Whether or not he would have unquestionably fought against this country at the dictate of Fascist overlords is a matter of conjecture. Furthermore, while he did not expressly recant his membership in the Fascist Party, through his actions he impliedly did so. We conclude that he is entitled to discretionary relief and shall affirm our former order granting voluntary departure and preexamination.
Order: It is ordered that the order of this Board of May 17, 1946, granting the alien voluntary departure within 6 months after notification of decision, and further authorizing preexamination, be hereby affirmed.
As the order of the Board is contrary to the recommendation of the Commissioner, in accordance with section 90.3, title 8, Code of Federal Regulations, the Board refers the case to the Attorney General for review of its decision.
Upon consideration of the entire record in this case, I agree with the Board of Immigration Appeals in its conclusion and reason therefore in authorizing the voluntary departure of the alien without an order of deportation, and I hereby approve that part of the Board's order which grants this privilege. I feel, however, that in view of all the circumstances in this case, preexamination should not be authorized. The respondent should return to Italy and there make application for a visa to come to the United States. I disagree with and reverse that part of the Board's order which authorizes preexamination.