A-2598465
Decided by Central Office June 7, 1949 Decided by Central Office September 9, 1949
Status — Alien — Entry under official status in 1919 (as servant to a foreign government official) — Inapplicability of act of 1917 to such alien — Such alien not admitted for permanent residence here — Such alien not entitled to a reentry permit.
Where an alien entered the United States on November 30, 1919, under an official status (as the servant to a foreign government official), as to whom the provisions of the act of February 5, 1917, were inapplicable because of the tenth proviso to section 3 of that act, he has not been admitted for permanent residence and is not entitled to the issuance of a reentry permit under the provisions of section 10 of the Immigration Act of 1924.
BEFORE THE CENTRAL OFFICE
(June 7, 1949)
Discussion: The above-named alien, a native and citizen of China, was permitted to enter the United States at the port of San Francisco, November 30, 1919, under an official status (servant to a government official). He has submitted application for a reentry permit claiming November 30, 1919, as his last entry.
Attorney J---- S. K---- of New York City has recently communicated with the Central Office regarding this alien's desire to file a declaration of intention. In that connection, he referred to the case of T---- H---- W----, A-3575665, a similar case in which the Central Office ruled that the reentry permit which had already been issued could be retained by the alien. This action was in accord with a decision reached in the deportation case of R---- K---- (56133/53), in which the Board of Immigration Appeals canceled a warrant of arrest after holding that a reentry of a similarly situated alien should be recognized as a valid reentry. An application for a reentry permit has now been submitted in order that a determination may be made of his eligibility for such document.
The present applicant, and the two individuals in the cases cited, were not admitted under all of the provisions of the immigration laws then applicable to aliens generally. The tenth proviso to section 3 of the act of February 5, 1917, provides that nothing in that act shall be construed to apply to accredited officials of foreign governments, nor to their suites, families, or guests. Because of this statutory provision, these individuals were neither inspected nor admitted. They were merely passed because of their official standing. They could not then have been excluded on grounds applicable to aliens generally. It is the view of the Service, therefore, that the applicant was not lawfully admitted for permanent residence and therefore not entitled to a reentry permit. The cited cases of the other two aliens are not believed to be founded on appropriate legal principles and are not governing.
This applicant may be able to have a record of lawful admission for permanent residence created pursuant to the provisions of section 328 (b) of the Nationality Act of 1940. Congress has provided for a means of creating a record of lawful permanent admission in the very types of cases, among others, in which the present applicant finds himself.
Recommendation: It is recommended that the alien's application for a reentry permit be denied.
So ordered.
Discussion: Under date of June 7, 1949, the application for a reentry permit submitted by the above-named alien was denied on the ground that he was not admitted to the United States for permanent residence. He was permitted to enter under an official status (servant to a government official) upon his arrival at San Francisco, Calif., November 30, 1919. Attorney J---- S---- K---- has submitted a brief requesting reconsideration of the previous decision and presenting arguments in support of his contention that the alien should be held to have been admitted to the United States for permanent residence.
The attorney bases his arguments on the following grounds:
(1) The Service decision in the case of R---- K---- (56133/53).
(2) The Service decision in the case of W---- D---- S---- (P-1010973; R-74214).
(3) The relation of Chinese under the treaty with China and the Chinese exclusion laws to officials under the Immigration Act of 1917.
(1) The case of R---- K---- was referred to in the order of June 7, 1949, and further comment is not necessary here.
(2) The case of W---- D---- S---- involved a native and citizen of Colombia who was permitted to enter the United States in 1913 under diplomatic status, accompanying a consul general of Colombia. In March 1929 he applied for readmission at Rouses Point, N.Y., following a visit to Canada. He was admitted by a Board of Special Inquiry without verification of his original entry. He was issued two reentry permits thereafter on the basis of his admission by the Board of Special Inquiry. In accordance with the practice then followed, no attempt was made to verify his first entry in connection with the applications for the reentry permits. Later, on application for another reentry permit, an investigation developed the facts regarding his 1913 entry. In connection with the investigation, the alien testified that, while the consul general of Colombia was on the same vessel on which he arrived and he knew that official, he was not a member of his household but was traveling with two other men. Under date of October 6, 1936, it was held that the subject was not entitled to the status of a diplomat at the time of his entry in 1913 and it was ordered that, on the payment of head tax, the record be corrected to show him admitted as an immigrant. It appears that consideration was not given at that time to the fact that the alien was not inspected but was merely passed on the occasion of his 1913 entry, and such decision is not considered a precedent.
(3) Counsel argues that by reason of the terms of the Chinese exclusion laws which were enacted to execute certain treaty stipulations, all Chinese were to be excluded unless within the excepted classes, while under the Immigration Act of 1917 all aliens were to be allowed admission except those who fell within the excluded classes specified therein; that the subject belonged to an excepted class under the Chinese exclusion laws by reason of his official position; that he was not excluded by the 1917 act but was specifically exempt from its provisions (tenth proviso to sec. 3 of the 1917 act); that consequently, he is to be regarded as having been admitted for permanent residence. This presents a novel argument but counsel overlooks the fact that admissibility under the Chinese exclusion laws and excludability under the 1917 act are determined at a port of entry after inspection and this person was not inspected and admitted, but merely passed. To follow the argument of counsel would mean that any alien who is not excluded by any of the provisions of the 1917 act and who entered illegally while he held an official position would be entitled to the status of a legal permanent resident. This we do not perceive to be the correct construction of the statutes in question.
Recommendation: It is recommended that no change be made in the order of June 7, 1949.
So ordered.