A-2272155
Decided by Central Office January 19, 1948
Literacy requirement — Exemption — Legal resident returning after an absence from the United States of less than 6 months — Section 3, Immigration Act of 1917.
The term "United States" as defined in section 1 of the Immigration Act of 1917, includes both Hawaii and Guam and consequently an illiterate alien returning to his home in Hawaii (where he had his lawful permanent residence) is exempt from the literacy test provided for in section 3 of that act notwithstanding a stay of more than 6 months in Guam, since the exemption is applicable to returning legal residents of the United States who, among other things, are returning after an absence of not more than 6 months from the United States.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917 — Illiterate.
BEFORE THE CENTRAL OFFICE
Discussion: On July 1, 1947, the appellant applied for admission into the United States at Honolulu, T.H., so that he could resume residence. He was held for a Board of Special Inquiry which, after a hearing conducted on July 11, 1947, ordered him excluded on the above-stated ground. He has appealed from this decision. On August 25, 1947, this Service ordered the hearing reopened so that there would be incorporated into the record the results of investigation, so that consideration could then be given to the invocation of seventh proviso relief. The field office brought to attention the decision of this Service dated July 18, 1947 (A-3629094) and requested reconsideration in this case.
The appellant is a 39-year-old male, single, an alien, a native and citizen of the Philippine Islands of Filipino stock. The Board of Special Inquiry was satisfied that the appellant was lawfully admitted to Hawaii for permanent residence on September 22, 1928, and that he resided there until August 1946, when he departed to Guam on a United States Navy boat for work with the Guam Dredging Contractors, a Government contractor. The Board of Special Inquiry was satisfied that in regard to documentary requirements the appellant came within the purview of the waiver of such documentary requirements set forth in 8 C.F.R. 175.44 (e). The Board of Special Inquiry found him otherwise admissible except on the literacy ground. He was found unable to read, though physically able to do so.
The question now raised is whether the appellant is exempt from the literacy requirements. He has been a lawful resident in Hawaii since 1928 and his only "departure" from Hawaii appears to have been 1946, when he worked for a period of 10 months for a United States contractor at Guam.
Certain classes of persons are exempt from the operation of the illiteracy test (section 3 of the act of February 5, 1917). Such exemption applies to aliens who have been lawfully admitted to the United States and have resided therein continuously for 5 years, and who returned to the United States within 6 months from the date of their departure therefrom (8 C.F.R. 110.43 and 8 C.F.R. 110.47 (d), section 3 of the act of February 5, 1917).
"Lawfully admitted" means lawfully admitted to the United States for permanent residence. ( Domenici v. Johnson, 10 F. (2d) 433.)
Prior to May 1, 1934 (the effective date of the Philippine Independence Act) Filipinos were admitted to the United States in the same manner as citizens of the other insular possessions of the United States. Consequently Filipinos whose residence in this country began prior to May 1, 1934, are deemed to have been lawfully admitted for permanent residence.
"Resided therein continuously for 5 years" includes residence with absences provided that no absence is greater than 6 months; or it may be comprised of separate periods of residence in the United States adding up to 5 years ( Navigazione Generale Italiana v. Elting, 66 F. (2d) 537), unless more than 6 months intervened between any of the periods of residence. ( United States ex rel. Amuso v. Curran, 299 Fed. 214 (D.C.); United States ex rel. Devenuto v. Curran, 299 Fed. 206), or it is established that there was no intent to maintain a residence here ( United States ex rel. Engel v. Tod, 294 Fed. 820; United States ex rel. Illuzzi v. Curran, 11 F. (2d) 468).
In this case, the appellant has resided in Hawaii since 1928 up to his departure in 1946. Since the appellant was lawfully in Hawaii, the question arises as to whether he may be deemed to have resided in the United States within the contemplation of the act of February 5, 1917. Section 1 of the act of February 5, 1917, provides the following:
That the term "United States" as used in the title as well as in the various sections of this act shall be construed to mean the United States, and any waters, territory, or other place subject to the jurisdiction thereof, except the Isthmian Canal Zone; but if any alien shall leave the Canal Zone or any insular possession of the United States and attempt to enter any other place under the jurisdiction of the United States, nothing contained in this act shall be construed as permitting him to enter under any other conditions than those applicable to all aliens.
Insofar as residence in the United States is concerned, it is clear that the appellant's residence in Hawaii constituted residence in the United States within the contemplation of section 1 of the act of February 5, 1917. However, for the purposes of inspection and entry under the provisions of the act of February 5, 1917, when the appellant departed from Hawaii to go to Guam, he was to be considered in the same manner as though entering Guam from a place other than the United States. Likewise, when the appellant left Guam to come to Hawaii, for the purposes of inspection and entry under the provisions of the act of 1917, he was also to be considered in the same manner as though entering Hawaii from a place other than the United States.
Accordingly, insofar as residence in the United States is concerned within the meaning of the act of February 5, 1917, the appellant is deemed to have resided in the United States when in Guam, and will be deemed to be residing in the United States when he reenters Hawaii.
Thus, the only absence from the United States encountered in this case is the interval used in travel between Hawaii and Guam and Guam and Hawaii. This interval of travel was clearly less than 6 months. Accordingly, it may be found that the appellant has not been absent from the United States for a period more than 6 months and thus comes within the exemptive provisions of section 3 of the act of February 5, 1917, inasmuch as he has been a lawful resident of the United States continuously for more than 5 years and has not been absent from the United States for a period greater than 6 months. He is returning to the United States within 6 months from the date of his departure from the United States, within the meaning of the act of February 5, 1917.
Similar issues were involved in an opinion signed by the Deputy Commissioner on October 30, 1943 (files 56056/509, 56118/338, dealing with the question of the admission of illiterate resident aliens of Puerto Rico to the mainland of the United States), and the decision of this Service on July 18, 1947, in the cases of T---- B----, A-3629094, L---- C----, A-5730676, and N---- G----, A-3323319.
In this case, no restriction is placed upon the appellant's readmission to Hawaii as a returning resident. It may, therefore, be concluded that this appellant may be admitted into Hawaii as a returning resident, documentary requirements being waived under 8 C.F.R. 174.44 (e).
Accordingly, the order entered by this Service on August 25, 1947, in this case will be withdrawn and it will be recommended that the alien's appeal be sustained.
Recommendation: It is recommended that the order of August 25, 1947, directing a reopening, be withdrawn.
It is further recommended that the alien's appeal be sustained and that he be admited to Hawaii as a returning legal resident.
So ordered.