A-3842166
Decided by the Board June 11, 1953
Suspension of deportation — Section 244 (a) (5) of the Immigration and Nationality Act.
An alien otherwise eligible for suspension of deportation who is deportable on one of the charges prescribed in section 244 (a) (5) of the Immigration and Nationality Act is eligible for suspension of deportation even though he is also deportable on some other charge or charges which are not within the provisions of that section and it is immaterial whether such additional grounds for deportation do or do not relate to acts committed or a status acquired subsequent to entry.
BEFORE THE BOARD
Discussion: This case is before us on the respondent's motion that the proceedings be reopened to permit the filing of an application for suspension of deportation under section 244 (a) (5) of the Immigration and Nationality Act. The field office of the Service recommended that the motion be granted.
The respondent is a 51-year-old female, native of England and of undetermined nationality, who last entered the United States during November 1924. In 1925 she was ordered deported on five charges, namely, under the Immigration Act of 1924 because, at the time of entry, she was an immigrant not in possession of an immigration visa and under the Immigration Act of 1917 for the following reasons: That she was a person likely to become a public charge at the time of her entry; that she entered the United States for an immoral purpose; that she has been found connected with the management of a house of prostitution; and "that her ticket or passage to the United States was paid for with the money of another, or who was assisted by others to come to the United States." Deportation to England or Canada could not be effected due to the fact that the respondent had lost her British nationality by reason of marriage to an Austrian national. She has since remained in the United States. The respondent's motion sets forth that in 1935, believing that her first husband had died, she married a native born citizen; that they have lived together continuously since that time; and that on January 26, 1953, a further marriage ceremony was performed, it having developed that her first marriage had not terminated until 1945.
Of the five charges on which the respondent was found deportable, the only one which is within the purview of section 244 (a) (5) of the Immigration and Nationality Act is the charge that she had been found connected with the management of a house of prostitution, and there is considerable doubt as to whether we would now order her deportation on that ground. Assuming that the charge mentioned is not sustained but that we would still find her deportable on the charge that she entered the United States for an immoral purpose, she would not then come within the purview of paragraph (5) of section 244 (a) and she would be deportable on a ground included in paragraph (4) of that section. However, she could not apply under paragraph (4) because that paragraph is limited to aliens who entered the United States after June 27, 1950. Although it may eventually develop that the respondent is not eligible for suspension of deportation, her case points up a basic problem which we believe should be resolved at this time, namely, whether an alien who is within the purview of paragraph (5) is precluded from applying for suspension of deportation because he happens to be deportable also on some ground which is not included in that paragraph. The question may also be stated in another way, that is, whether the phrase in paragraph (5) reading, "for an act committed or status acquired subsequent to such entry into the United States" bars an applicant for suspension under that paragraph if he is also deportable because of an act committed or status existing prior to or at the time of entry.
The statutory provision, insofar as pertinent, is as follows:
SEC. 244 (a). As hereinafter prescribed in this section, the Attorney General may, in his discretion, suspend deportation * * * in the case of an alien who * * * (5) is deportable under paragraph (4), (5), (6), (7), (11), (12), (14), (15), (16), (17), or (18) of section 241 (a) for an act committed or status acquired subsequent to such entry into the United States or having last entered the United States within 2 years prior to, or at any time after the date of enactment of this act, 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; * * *.
In considering the questions mentioned above, we note that the first portion of paragraph (5) contains only two requirements: First, the alien must be deportable under one of the specified paragraphs of section 241 (a), and secondly, he must be deportable for an act committed or status acquired subsequent to entry. The word "solely" is not used (as in paragraph (2)) and there is no requirement that the alien must be solely deportable on grounds which come within the purview of paragraph (5), nor is there any specific requirement that he must be deportable solely for an act committed or status acquired subsequent to entry, nor is there any specific provision (similar to the provisions in paragraphs (2), (3), and (4)) excluding an alien because he also comes within the provisions of some other paragraph. We believe that since the plain words of the statute specify only the two requirements mentioned as prerequisites to eligibility for suspension, there would be no justification for adding some additional requirement, such as, that the alien must not be deportable on a ground not included in paragraph (5), or that the alien must show eligibility for suspension under each paragraph of section 244 (a) in which the various grounds for deportation would be classified.
We also observe that in the Senate version of H.R. 5678, which went to conference, paragraphs (2), (3), (4), and (5) of section 244 (a) commenced with the phrase "last entered the United States within 2 years prior to, or at any time after the date of enactment of this act; * * *," which phrase did not appear in the House version; that the provision of the Senate version was retained in paragraphs (2), (3), and (4), and that it was also retained in paragraph (5) except that in that paragraph, the two clauses previously quoted were transposed in order to make the requirement applicable only to the "remained longer" cases. There could hardly be a clearer indication of the congressional intention to make it possible for reformed subversives, criminals, and similar classes, who had previously been ineligible for suspension, to apply for that privilege if they were otherwise qualified.
We realize that there is some incongruity in section 244 (a) because of the fact that, when paragraph (1) expires on December 24, 1957, an alien who last entered the United States before June 27, 1950 (even if he has resided in the United States for 20 or 30 years), will not be able to apply for suspension under paragraphs (2), (3), (4) or the second clause of paragraph (5) since all of these contain the requirement that the last entry must have occurred after June 27, 1950. But an alien who comes within the purview of the first clause of paragraph (5) would be eligible for suspension. This is illogical, of course, because it would penalize those who were comparatively innocent and reward those who had been guilty of the most serious offenses. Nevertheless, as we have indicated above, it was obviously the intention of Congress to permit reformed subversives, criminals, and similar classes to apply for suspension, and the elimination of the requirement concerning entry after June 27, 1950, may have been in recognition of the fact that aliens of this class had previously been ineligible for suspension, and some of them might now have the necessary residence and good moral character to permit applications for suspension.
In view of the foregoing, it is our considered opinion that, if one of the grounds on which an alien is deportable comes within the purview of section 244 (a) (5), it is immaterial whether the alien is also deportable on some other charge or charges which are not within the purview of paragraph (5), and it is immaterial whether such additional grounds of deportation do or do not relate to acts committed or a status acquired subsequent to entry. Accordingly, we believe that the respondent is eligible to apply for suspension of deportation under section 244 (a) (5) if the charge relating to deportability for having been found connected with the management of a house of prostitution is sustained, regardless of whether she is found deportable on other charges. We will, therefore, direct that the hearing be reopened in order that the respondent may be further questioned to determine on what charges deportation should be ordered and in order that she may submit an application for suspension of deportation together with evidence of her eligibility for such relief.
Order: It is ordered that the outstanding order and warrant of deportation be withdrawn and that the hearing be reopened for further proceedings in accordance with the foregoing.