A-10474501
Decided by Board January 28, 1957
Suspension of deportation — Sections 244 (a) (3) and (5), Immigration and Nationality Act — Eligibility where alien found deportable under section 241 (a) (9) of the act is also deportable under section 241 (a) (2) of the act.
An alien admitted as a crewman on August 29, 1950, who is found deportable under section 241 (a) (9) of the act is statutorily ineligible for suspension of deportation under section 244 (a) (3) of the act if he also comes within the deportable provisions of section 241 (a) (2) of the act as a "remained longer." In that situation, eligibility for suspension of deportation can be established only under section 244 (a) (5) of the act.
CHARGE:
Order To Show Cause: Act of 1952 — Section 241 (a) (9) ( 8 U.S.C. 1251 (a) (9)) — Failed to comply with conditions of admission (seaman-section 3 (5) of Act of 1924).
BEFORE THE BOARD
Discussion: This case has been certified by the Regional Commissioner, Southwest Region, for final decision pursuant to 8 CFR 6.1 (c). The special inquiry officer on August 23, 1956, found the respondent statutorily eligible for suspension of deportation under the provisions of section 244 (a) (3) of the Immigration and Nationality Act ( 8 U.S.C. 1254 (a) (3)). The special inquiry officer also concludes after careful consideration of all the factors relating to the issue of discretionary relief that the respondent merits the grant of suspension of deportation. The Regional Commissioner, on the other hand, is of the opinion that the case lacks sufficient meritorious factors to justify the grant of suspension of deportation. He urges that this extraordinary relief be denied as a matter of discretion and in lieu thereof voluntary departure authorized. A brief in support of the findings of the special inquiry officer has been submitted by counsel.
The record relates to a native and citizen of Yugoslavia, male, married, 35 years of age, who last entered the United States as a seaman at the port of Philadelphia, Pennsylvania, on August 29, 1950. No exceptions have been taken to the findings of deportability under section 241 (a) (9) of the Immigration and Nationality Act ( 8 U.S.C. 1251 (a) (9)).
The Regional Commissioner urges denial of suspension of deportation as a matter of discretion. We are of the opinion that relief under section 244 (a) (3) of the Immigration and Nationality Act, supra, must be denied for the reason that respondent is statutorily ineligible therefor. We agree with the special inquiry officer that respondent meets some of the statutory requirements of section 244 (a) (3), supra. He last entered the United States on August 29, 1950, which is within 2 years of the date of the enactment of the 1952 act (June 27, 1952). He is deportable for a status acquired subsequent to a lawful entry. However, an alien to be eligible for suspension of deportation under section 244 (a) (3) of the Immigration and Nationality Act must not be "within the provisions of paragraph (4) or (5) of this subsection," namely subsection (a) of section 244, supra. Notwithstanding the fact that respondent has been found deportable under section 241 (a) (9) of the Immigration and Nationality Act he also comes within that portion of section 244 (a) (5) of the same act which includes "a person who has remained longer in the United States than the period for which he was admitted."
An alien is eligible for suspension of deportation under section 244 (a) (5) of the Immigration and Nationality Act if, inter alia, he last entered the United States within 2 years prior to the enactment of the 1952 act and "is deportable under paragraph (2) of section 241 (a) as a person who has remained longer in the United States than the period for which he was admitted." That portion of section 241 (a) (2) of the Immigration and Nationality Act which encompasses respondent reads: "Any alien in the United States (including an alien crewman) shall, upon order of the Attorney General, be deported who— * * * (2) * * * is in the United States in violation of this Act or in violation of any other law of the United States."
The respondent last entered as a crewman under section 3 (5) of the Immigration Act of 1924 (8 U.S.C. 203 (5)) and was admitted for 29 days or for the period of time that his vessel was in port. Subsequent to his admission he decided to remain permanently in the United States. Respondent by remaining longer than permitted "failed to maintain the nonimmigrant status in which he was admitted" (section 241 (a) (9)), namely that provided by section 3 (5) of the Immigration Act of 1924 (8 U.S.C. 203 (5)).
The respondent, by remaining longer than permitted, also comes within the wide provisions of section 241 (a) (2) cited above since he violated regulations prescribed by the Attorney General pursuant to section 15 of the Immigration Act of 1924 (8 U.S.C. 215). The limitations prescribed by regulations promulgated under section 15, supra, have been carried over into section 252 of the 1952 act ( 8 U.S.C. 1282). It is well established that regulations prescribed by the Attorney General pursuant to statutory authority have the force and effect of law. Respondent, therefore, comes within the provisions of section 244 (a) (5) of the Immigration and Nationality Act as an alien deportable because "he remained longer in the United States than the period for which he was admitted."
Section 244 (a) (5) of the Immigration and Nationality Act, supra, among other things, requires physical presence in the United States "for a continuous period of not less than ten years immediately following * * * the assumption of a status, constituting a ground for deportation." Respondent has been physically present in the United States for only 6 years and approximately 5 months. He is statutorily ineligible for suspension of deportation under both sections 244 (a) (3) and (5) of the Immigration and Nationality Act.
The Regional Commissioner recomemnds that voluntary departure be authorized in respondent's case. We conclude, after careful consideration of the factors concerned with the issue of discretionary relief, that voluntary departure under section 244 (e) is warranted and statutorily available to respondent. An appropriate order will be entered.
Order: It is directed that the order entered by the special inquiry officer on August 23, 1956, granting the alien suspension of deportation under the provisions of section 244 (a) (3) of the Immigration and Nationality Act be and the same is hereby withdrawn.
It is further ordered that the alien be permitted to depart from the United States voluntarily without expense to the Government, to any country of his choice, within such period of time, and under such conditions as the officer in charge of the district deems appropriate.
It is further ordered that if the alien does not depart from the United States in accordance with the foregoing, he be deported from the United States in the manner provided by law on the charge stated in the order to show cause.