A-6223750 (56196/433).
Decided by Central Office August 13, 1946. Decided by Board September 12, 1946. Approved by Attorney General September 16, 1946.
Stowaway — After exclusion, alien escapes detention — Deportability in warrant proceedings on ground of "entry at a place not designated" — Preexamination — 8 Code Federal Regulations 142.1 (c) — Especially meritorious case.
1. An alien stowaway under 18, who escaped detention after he was ordered excluded and later was placed under warrant proceedings is not subject to deportation on the ground he entered the United States at a place other than designated by immigration officials.
2. Where such alien was a civilian employee with our combat forces abroad and was highly recommended by our officers, had employment and lived here with an aunt, his parents abroad were in favor of his remaining here, and his record was favorable, he was considered as an especially meritorious case who should be granted preexamination under the provisions of 8 Code of Federal Regulations 142.1 (c).
CHARGES:
Warrant: Act of 1924 — Immigrant without immigration visa.
Act of 1918 — No passport.
Act of 1917 — Stowaway.
Lodged: Act of 1917 — Entry at a place not designated.
BEFORE THE CENTRAL OFFICE
Discussion: The respondent is a 17-year-old native and subject of Italy. He last arrived in the United States at the port of Norfolk, Va., on August 20, 1945, as a stowaway aboard the S.S. Dominican Victory. He was excluded and on appeal the excluding decision was affirmed on the same grounds as the charges in the warrant of arrest, without prejudice to his reapplication for admission into the United States within 1 year. Thereafter, he escaped from detention. At the time of his arrival, he was not in possession of an immigration visa and did not present a passport.
The charge that the respondent entered at a time or place other than as designated by immigration officials was lodged, based upon his escape from detention after having been excluded. In a similar case in which an alien had been excluded and had been paroled into the United States and in which the parole was no longer in effect, the Commissioner and the Board of Immigration Appeals rejected a theory that the alien's entry into the United States was not made until the parole was terminated and held that deportation proceedings were proper (A-3995189, Matter of R----, May 29, 1946). Accordingly, the lodged charge is not appropriate. The warrant charges are sustained.
The respondent has applied for voluntary departure and preexamination. He is unmarried. He was a civilian employee with the United States combat forces in Italy and participated throughout the Italian campaign. Various officers in outfits of the United States Army have extolled the services that he rendered and have highly recommended him. He testified that he was wounded in action and was awarded a Purple Heart in the field and that this action was later found to be erroneous. He asserts that if he returns to Italy his life will be in danger. Numerous letters have been received interceding for him.
The respondent is presently living with his aunt. He is employed at a salary of $35 a week. The State Department has conducted an investigation abroad. The results of this investigation were not introduced at the hearing but since they are not prejudicial to him they are being considered in the determination of whether discretionary relief shall be granted to him. His parents have stated that they knew that he was leaving Italy for the United States but that they did not know that he intended to enter clandestinely. They strongly desire that he be permitted to remain in the United States if possible. Private bills for his relief have been introduced in both the House and the Senate. With regard to the enactment of these bills, the Department took the position that the respondent had not exhausted all of the administrative remedies available to him and that it was possible that he could be granted the privilege of voluntary departure. Accordingly, favorable recommendations with regard to the enactment of legislation in his behalf were not made.
The respondent is still under 18 years of age. He has been of service to the United States in its conduct of the Italian campaign and has been wounded in action. He is living with relatives, is self-supporting, and his parents have no objection to his remaining in the United States. Upon consideration of all the circumstances in the case it is believed that discretionary relief in the form of voluntary departure should be granted to him and that he may be granted the further privilege of preexamination as an exceptionally meritorious case.
Order: It is ordered that an order of deportation not be entered at this time but that the alien be required to depart from the United States, without expense to the Government, to any country of his choice within 6 months after notification of decision, conditioned upon arrangements being made with the local immigration office for verification of departure. It is further ordered, That preexamination be authorized, conditioned upon a showing that the alien can obtain prompt issuance of an immigration visa.
As the proposed grant of preexamination is based on factors which are deemed to render the application therefor exceptionally meritorious, this case is referred to the Attorney General in accordance with outstanding instructions.
Discussion: Respondent is a native and citizen of Italy, 17 years old. His only entry into the United States occurred August 30, 1945 as a stowaway. We agree with the Central Office that his escape from detention, after he was found inadmissible, does not make him deportable on the charge that he entered at a time or place other than as designated by immigration officials. Accordingly, the seventh finding of fact proposed by the presiding inspector is omitted, and the fourth conclusion of law is changed to read:
(4) That under section 19 of the Immigration Act of 1917, respondent is not subject to deportation on the ground that he entered by water at a time or place other than as designated by immigration officials.
Upon consideration of the entire record, the findings of fact and conclusions of law proposed by the presiding inspector are hereby adopted, subject to the changes made above.
The presiding inspector, the District Director, and the Central Office recommend voluntary departure and preexamination. Preexamination is available to respondent under 8 C.F.R. section 142.1 (c), as an alien whose case is found to be exceptionally meritorious.
Order: It is directed that an order of deportation not be entered at this time but that the alien be required to depart from the United States, without expense to the Government, to any country of his choice, within six months after notification of decision, conditioned upon arrangements being made with the local immigration office for verification of departure.
It is further ordered, That preexamination be authorized, conditioned upon a showing that the alien can obtain prompt issuance of an immigration visa.
Since this Board finds that the alien should be accorded preexamination as an exceptionally meritorious case, the case is referred to the Attorney General for review.
The decision and order of the Board of Immigration Appeals dated September 12, 1946, are hereby approved.