A-10146323.
Decisions by Board July 8, and July 19, 1955. Commissioner's Motion July 8, 1955. Decided by Attorney General March 27, 1956.
Nonimmigrant — Effect of introduction of private bill on nonimmigrant status.
(1) The introduction in the Congress of a private bill to obtain for a nonimmigrant alien the status of an immigrant lawfully admitted for permanent residence is prima facie evidence of an intention by such alien to abandon residence in a foreign country and, therefore, to violate nonimmigrant status.
(2) Before deportation proceedings are commenced, however, as a matter of policy such an alien should be given opportunity by due notice to take steps to withdraw the private bill, or, if he chooses not to take such steps, to leave the United States voluntarily.
CHARGE:
Warrant: Act of 1952 — Failed to maintain status — Vistor for pleasure.
BEFORE THE BOARD
(July 8, 1955)
Discussion: This case is before us on certification. The special inquiry officer ordered termination of the proceedings. The Acting Regional Commissioner for the Southeast Region certified the case to this Board. We find that the decision of the special inquiry officer was proper.
Respondent is a 29-year-old married female, a native and citizen of Spain. In 1953, S---- G---- A----, a native, citizen, and resident of the United States and instructor of Spanish at Princeton University, was traveling abroad. He met respondent. On September 3, 1953, they were married. The following day he returned to the United States to fulfill his obligations to the University, but he immediately made preliminary arrangements to obtain a nonquota immigrant visa for his wife so that she could come to the United States and make her home with him. Early in November 1953 respondent was informed by the American consulate that she had been found admissible for permanent residence in all respects except for the fact that she was afflicted with tuberculosis. Respondent produced some evidence that she was in an arrested state but was unsuccessful in having the disqualification removed. Immediately after the realization that she could not obtain an immigrant visa, she applied for a nonimmigrant visa and, after receiving a waiver of the excludable condition from the Service, acting for the Attorney General, she was issued a nonimmigrant visa on December 31, 1953, entitling her to enter as a temporary visitor for pleasure. On January 4, 1954, she was admitted to the United States as a temporary visitor for a six-month period. Her physician in the United States told her the condition was inactive. He prescribed no treatment for it, but she visited him regularly. She states her condition is still inactive.
On January 17, 1955, while she was still in a legal status, her stay having been extended, Bill H.R. 2494, 84th Congress, 1st session, was introduced to provide that upon the bill becoming law, the respondent was to be considered as having been lawfully admitted to the United States for permanent residence. The next month, on February 3, 1955, she was granted an additional extension of stay to June 30, 1955. This extension was never specifically revoked and no specific termination or revocation of the temporary admission was made. However, on March 31, 1955, a warrant of arrest was issued and she was placed under deportation proceedings. Hearings were held and concluded on April 13, 1955.
It is the Service contention that the introduction of a private bill on an alien's behalf with his knowledge and actual or implied consent, is inconsistent with the maintenance of a nonimmigrant status and is, therefore, a violation of that status. It is argued that the introduction of a private bill is such a strong and affirmative action to remain in the United States permanently that without any further evidence it must be found that the alien concerned will not depart from the United States when the period of authorized stay expires.
It is added that in the instant case the respondent's attempt to obtain an immigrant visa before she entered, the fact that her husband is a resident of the United States and his permanent home is maintained here were additional factors requiring the conclusion that the respondent has violated the nonimmigrant status in which she had been admitted to the United States.
The alien testified fully and freely. She stated that she desires to remain in the United States for as long as she legally can do so. She stated that she had no intention to violate the laws and regulations of the United States; that she knew she would not be allowed to stay in the United States permanently in connection with her admission since it authorized her stay for a temporary period only, and that she has the funds with which to effect her departure from the United States if that becomes necessary. She stated she had never been employed in the United States.
The special inquiry officer in terminating proceedings found the respondent desired to stay in the United States as long as she legally may. He stated, she "desired to have her status changed from that of a temporary nonimmigrant to one of a permanent nature, she still intends to comply with the immigration laws. It would appear from her testimony and the evidence of record, that the respondent has not violated her status as a nonimmigrant visitor, and is not subject to deportation on the charge stated in the warrant provided for her arrest."
While we believe that the introduction of a private bill may be evidence of an intent to violate status and when considered with other evidence can be sufficient to sustain a charge such as that in the warrant of arrest, we feel that in the instant case to conclude that the respondent would violate the terms of her admission would be an assumption based upon suspicion and surmise. Here the record establishes that the respondent desired and attempted to come to the United States as an immigrant prior to the time she made application for a nonimmigrant visa. Although this fact was known to the consul and to the Service and although the record established that at the time she applied for a nonimmigrant visa and waiver of the ground of inadmissibility, she was married to a United States citizen whose permanent home was in the United States and that she intended to make her home with him, it is not urged that she was ineligible for the issuance of a visa, or ineligible for admission to the United States, or that she was not entitled to the waiver which may be given only to nonimmigrants. Furthermore, it is not urged that she was not entitled to extensions of stay because she had desired to come to the United States for permanent residence and was making her home in the United States with her husband.
It is conceded by all that the respondent was properly admitted as a nonimmigrant and that until the time a private bill was introduced in her behalf she was maintaining her status as required by the law and regulations. Since neither the State Department nor the Service, with knowledge of her efforts to come to the United States for permanent residence, felt constrained to regard her as an immigrant, we fail to understand the emphasis now placed upon the private bill. It added no more to this case than existed when respondent applied for a nonquota visa for permanent residence to join her United States citizen resident spouse — the situation which existed before she made application for and received her visa for temporary stay. Both her effort to get an immigrant visa and the introduction of the private bill show a desire to stay, but neither of those facts necessarily shows an intention to violate the immigration laws. Taking into consideration respondent's natural desire to remain in the United States; the action taken by her husband to obtain for her the right to reside with him; and her uncontradicted testimony that she intends to abide by the terms of her admission, we do not find that the Service has borne the burden of establishing by reasonable, substantial and probative evidence that the respondent does not intend to abide by the terms of her admission.
See, Chryssikos v. Commissioner of Immigration, 3 F. (2d) 372 (C.C.A. 2, 1924); United States ex rel. Jolly v. Reimer, 10 F. Supp. 992 (D.C., S.D.N.Y., 1935); United States ex rel. Rizzo v. Curran, 13 F. (2d) 233 (D.C., S.D.N.Y., 1925); United States ex rel. Squillari v. Day, 35 F. (2d) 284 (C.C.A. 3, 1929).
Finally, the Service argues that Congress has expressed the intent that a nonimmigrant who seeks adjustment of status to that of an immigrant admitted for permanent residence should because of the mere fact of seeking adjustment of status give up his nonimmigrant status. Section 245 (a) of the Immigration and Nationality Act is pointed to as authority for this conclusion. Section 245 (a), supra, permits adjustment of status of nonimmigrants to that of a person admitted for permanent residence under certain circumstances. It provides: "Any alien who shall file an application for adjustment of his status under this section shall thereby terminate his nonimmigrant status." The argument although persuasive on the surface does not stand up upon examination.
Congress did no more than impose a condition to the making of an application under section 245. This condition — termination of status — is nowhere found expressed either legislatively or administratively as the effect which must follow the filing of a private bill. Even if Congress intended that an alien applying to it for relief should be deprived of status for that reason alone, its intent has not been translated into law. The language of section 245 specifically referring to the filing of an application for administrative relief can by no stretch of the imagination be made applicable to the introduction of a private bill seeking legislative assistance.
While we are on the subject of section 245, an important matter should be pointed out. Congress conditioned the acceptance of an application under section 245 upon the alien surrendering his temporary status. Any alien who makes such an application is charged with notice that he is placing himself in an illegal status. As we have pointed out, no notice of general circulation has been given by legislation or by the Service informing aliens legally in the United States and in a nonimmigrant status that if they permit bills to be introduced in their behalf they will by reason thereof be considered illegally in the United States. In fact, until recently it does not appear that the Service was of the view that such result followed the introduction of a bill. It thus is apparent that many aliens have permitted bills to be introduced with every reason to believe that their status would not be jeopardized. Yet, information as to the present Service view is more important to an alien who permits a private bill to be filed on his behalf than one who files under section 245. For, filing an application under section 245 does not necessarily subject the alien to arrest and the expense and the tension of a warrant hearing even if unfavorable action is taken; and if proceedings are instituted they are not commenced until after unfavorable action is taken upon his application (8 C.F.R. 245.17 (e); 242.41). But, where a private bill is involved, it appears to be the determination of the Service immediately to institute warrant proceedings and prosecute formal hearings to completion without awaiting the outcome of action upon the private bill, even though the alien was in all respects maintaining his status. Moreover, if the instant case is expressive of Service intentions, warrant proceedings will be instituted without notifying the aliens that the Service considers their status has been terminated by the introduction of a private bill and without giving them an opportunity to remain for the period of their otherwise authorized stay or to depart voluntarily.
We do not believe a change should be made in the order of the special inquiry officer.
Order: It is ordered that no change be made in the order of the special inquiry officer.
(July 8, 1955)
Discussion: This case relates to a 29-year-old female, a native and citizen of Spain. While in France she married a citizen and resident of the United States on September 3, 1953, and thereafter applied for an immigrant visa to enter this country for permanent residence. The visa was refused on the ground that she was afflicted with tuberculosis. Nevertheless, a nonimmigrant visa was issued to her and on January 4, 1954, she was admitted as a temporary visitor for six months. Her stay was extended to June 30, 1955. She has been living with her husband in the United States since her entry.
A private bill (H.R. 2494, 84th Congress, 1st session) was introduced on her behalf and with her knowledge and consent on January 17, 1955. The bill provides that upon enactment she will be considered to have been lawfully admitted for permanent residence as of the date of enactment.
Deportation proceedings were instituted by the issuance of a warrant of arrest on March 31, 1955, on the charge that after admission as a visitor she failed to maintain the nonimmigrant status in which she was admitted. The special inquiry officer ordered the proceedings terminated but certified the case to the Regional Commissioner, Southeast Region. The Regional Commissioner certified the case to the Board which ordered that no change be made in the order of the special inquiry officer.
It is the view of the Service that the introduction of a private bill to adjust the status of a nonimmigrant to that of a permanent resident at the request, or with the knowledge and consent, of the alien evinces an intention to remain permanently in the United States and constitutes a violation of the nonimmigrant status. Arguments presented orally to the Board are contained in the file and will be only briefly summarized here.
The respondent is married to a citizen and resident of the United States and admittedly she wishes to remain here with him. By section 101 (a) (15 (B) of the Immigration and Nationality Act, the class of nonimmigrant with which we are here concerned is defined as an alien "having a residence in a foreign country which he has no intention of abandoning and who is visiting the United States temporarily for business or temporarily for pleasure." Among the conditions of admission is the requirement that the nonimmigrant will depart from the United States within the period of his admission or any authorized extension thereof ( 8 C.F.R. 214.2 (b)).
When an alien visitor manifests an intention to remain permanently in the United States he must be considered an immigrant and not a nonimmigrant ( United States ex rel. Feretic v. Shaughnessy, 221 F. (2d) 262 (U.S.C.A. 2, 1955); Matter of Z----, A-3533233, 3 IN Dec. 379 (A.G., 1948)). Deportability may be established by conduct and activity of the alien after entry which make evident an intention to violate status ( Matter of B----, 0300/466229, Int. Dec. No. 615, B.I.A., 1954). The evidence is sufficient to establish deportability in this case.
With her knowledge and consent a private bill was introduced in Congress to authorize her to remain in the United States permanently. Irrespective of her testimony, it is apparent that she will not depart from the United States before final action is taken on the bill even though such period extends beyond the date of her authorized extension. By consenting to the introduction of this bill, she has demonstrated an intent to remain permanently in the United States and to abandon her residence in the foreign country. We have here not merely the expression of a desire to return for permanent residence sometime in the future but conduct establishing an intent to remain permanently in the United States now. Her conduct is entitled to greater evidentiary weight than her words.
Congress apparently considered that an alien could not consistently make application for adjustment of status to that of a permanent resident and still maintain a nonimmigrant status. Under the provisions of section 245 of the Immigration and Nationality Act, nonimmigrant status is terminated by the filing of an application for relief under that section. An alien who intends to remain permanently in the United States cannot be classified as a temporary visitor, and an alien may not be both an immigrant and a nonimmigrant at the same time.
Because of the importance of the question presented in the administration of the immigration laws, it is believed that this case should be submitted to the Attorney General for review.
Request is hereby made to the Board of Immigration Appeals that this case be referred to the Attorney General for review in accordance with the authority contained in 8 C.F.R. 6.1 (h) (1) (iii).
(July 19, 1955)
Discussion: On July 8, 1955, we entered an order holding that the action of the special inquiry officer in terminating proceedings was proper. The Commissioner requests that we certify this matter to the Attorney General for review. The facts have been fully stated in the Board order of July 8, 1955.
The issue is whether an alien who concededly was a bona fide temporary visitor at the time of admission and concededly maintained that status after admission violates nonimmigrant status by the mere fact that with consent of the alien a private bill is introduced to change the current nonimmigrant status to that of one admitted for permanent residence. The Service contends that the introduction of the bill raises an irrefutable presumption that the alien has abandoned nonimmigrant status. We ruled that the mere fact of the introduction of a private bill was not a violation of nonimmigrant status for it did not violate any law or regulation and the inference from such an action was not such as to lead only to the conclusion that the alien intended to violate nonimmigrant status. We concluded that careful evaluation of all the facts must be made to determine an alien's intentions and held with the special inquiry officer that in the instant case the record established that the alien was continuing to maintain the nonimmigrant status in which she had been admitted. We, therefore, held termination of proceedings was proper.
The Commissioner's motion cites several cases which stand for general propositions with which we are in full agreement. However, they concern situations not presented here. Matter of Z----, A-3533233, 3 IN Dec. 379, and United States ex rel. Feretic v. Shaughnessy, 221 F. (2d) 262 (C.A. 2, 1955), are clearly distinguishable since both relate to aliens who failed to establish that they were bona fide nonimmigrants at the time they applied for admission. Here the Service concedes that the alien was a bona fide nonimmigrant at the time of applying for admission and that she maintained her status until a private bill was introduced on her behalf. Furthermore, the cases cited go into a careful evaluation of evidence to determine what was the alien's intention as to immigration. No effort was made to create an irrefutable presumption from one isolated fact subject to several interpretations. Matter of B----, 0300/466229, Int. Dec. No. 615, cited in the motion is distinguishable since it involves actions and testimony by a temporary visitor which clearly reveal an intent to violate regulations against the engaging in employment by temporary visitors. The action in the instant case, in having a private bill introduced, in view of the testimony existing here does not reveal an intent to violate any law or regulation.
The Service motion points out that the definition of a nonimmigrant requires that he have a residence in a foreign country which he has no intention of abandoning and that he be visiting the United States for business or pleasure. Our original order points out that the introduction of the private bill added nothing to what both the State Department and the Service knew about the alien when her nonimmigrant visa was issued, when she was admitted, and when she was granted extensions of stay. If, as is conceded, she was a bona fide visitor on all these occasions, the introduction of the bill changed nothing. It should further be noted that the definition is a restatement of what was in effect the law prior to the passage of the Immigration and Nationality Act (Senate Report No. 1137, 82d Cong., 2d sess., p. 19, par. b), and that the Assistant Commissioner points to no previous administrative ruling creating an irrefutable presumption that the filing of a private bill terminated an alien's temporary status in the United States.
Order: At the request of the Assistant Commissioner, Examinations Division, Immigration and Naturalization Service, and in accordance with Title 8, Code of Federal Regulations, section 6.1 (h) (1) (iii), the case is certified to the Attorney General for review of the Board's decision.
(March 27, 1956)
Order: The issue presented in this case is one of whether the record supports a conclusion that the alien intended to change her status from that of nonimmigrant to immigrant, thereby forfeiting her temporary legal residence in the United States when she acquiesced in efforts made in her behalf to obtain for her the status of permanent resident through the enactment of private legislation. The Board of Immigration Appeals decided that the record does not establish that she had such an intention, and therefore does not support the conclusion.
Included in the definition of "nonimmigrant" in the Immigration and Nationality Act of 1952 is an alien "having a residence in a foreign country which he has no intention of abandoning and who is visiting the United States temporarily for business or temporarily for pleasure." The introduction in the Congress of a private bill to obtain for such an alien the status of immigrant lawfully admitted for permanent residence is prima facie evidence of an intention by such alien to abandon residence in a foreign country, and, therefore, to violate nonimmigrant status.
Before deportation proceedings are commenced, however, as a matter of policy it is desirable that such an alien first be given opportunity, by due notice, to take such steps as are necessary to withdraw the private bill, or, if he chooses not to take such steps, to leave the country voluntarily. This is now the practice of the Immigration Service. It appears, however, that no such notice or opportunity was given the alien in the instant case.
From all the facts and circumstances, the Board of Immigration Appeals has resolved the question of intent in favor of the alien. In this conclusion, I concur.