56092/712
Decided by the Board February 13, 1943.
Entry to the Virgin Islands prior to July 1, 1938.
When an alien entered the Virgin Islands prior to July 1, 1938, at which time the 1917 and 1924 immigration acts were laxly enforced there, it is presumed with respect to deportability that she was admitted for permanent residence. This also applies to aliens who entered the Virgin Islands prior to July 1, 1938, as temporary visitors even though a record of their temporary admission exists.
CHARGES:
Warrant: Act of 1924 — Immigrant without an immigration visa.
Mr. Irving Jaffe, Board attorney-examiner.
STATEMENT OF THE CASE: This record relates to a woman, a native and citizen of Belgium, 44 years old, and single. The respondent is a member of a religious order and teaches in the parochial schools at St. Croix, V.I. She last entered the United States on August 24, 1929, at Frederiksted, St. Croix, V.I., and was admitted for an indefinite period. Her admission to the United States had been authorized by a letter issued under the authority of the Governor of the Virgin Islands.
DISCUSSION: A brief history of the Virgin Islands is pertinent at this time, especially insofar as it affects the administration of the immigration laws in those islands.
The Virgin Islands were purchased from Denmark by the United States under treaty signed on August 4, 1916. Ratifications of this treaty were exchanged on January 17, 1917. However, formal transfer of sovereignty over these islands took place on March 31, 1917. Congress, on March 3, 1917, passed an act providing for a temporary government for the Virgin Islands. Under this act, all military, civil, and judicial powers necessary to govern the Islands were vested in a governor to be appointed by the President. All governors of the Virgin Islands were officers of the United States Navy until February 27, 1931, when, by Executive order, control of the islands was placed in the hands of the Department of the interior. Migration of aliens to and from the Virgin Islands was controlled — to what little extent control was exercised — by these governors.
The Immigration Act of February 5, 1917, was not enforced at all in the Virgin Islands, the majority opinion being that the Immigration Act of 1917 was not applicable to the Virgin Islands since it preceded the enactment of the Act of March 3, 1917. After the passage of the Immigration Act of 1924, it was determined that the 1924 act applied to the Virgin Islands. Actually, enforcement of the 1924 act was not begun until June 1, 1925, when its applicability to the Virgin Islands was proclaimed by the Governor. Aliens who entered the Virgin Islands prior to June 1, 1925, were deemed to have been lawfully admitted.
The Secretary of the Navy was so advised by the Secretary of Labor in a communication dated October 30, 1924.
Immigration laws in the Virgin Islands were administered under the authority of the Governor, and the administrative work was performed by employees holding other public offices in the Islands — principally, the police. Needless to say, the administration of the immigration laws was lax and was certainly not applied in the same manner as elsewhere in the United States. As time progressed, the difficulties attendant upon proper administration of the immigration and naturalization laws became increasingly apparent, especially since the Immigration Act of 1917 was not considered applicable to the Virgin Islands.
On March 31, 1938, the Solicitor of the Department of Labor ruled that the 1917 act as well as the 1924 act applied to the Virgin Islands and, further, that the Secretary of Labor was charged by law with the administration of those acts. It was then determined that proper enforcement of the immigration and naturalization laws required active supervision over their administration in the Virgin Islands by the Immigration and Naturalization Service. Accordingly, the Immigration and Naturalization Service assumed nominal jurisdiction in the Virgin Islands on July 1, 1938. Employees, however, remained the same as before and enforcement of these laws was but slightly improved until March 1, 1941, when complete jurisdiction over the enforcement of the immigration and naturalization laws was assumed by the Immigration and Naturalization Service.
For administrative purposes, however, it is deemed that both the 1917 and 1924 immigration acts were actively enforced in the Virgin Islands beginning with July 1, 1938.
Prior to July 1, 1938, aliens were admitted to the Virgin Islands without full compliance with the immigration laws. In many instances aliens unlawfully or temporarily in the Virgin Islands were permitted to proceed to continental United States or to the territories of the United States in possession of certificates of residence issued by the Governor of the Virgin Islands and were generally admitted in other parts of the United States as exempt from the quota or head tax requirements. These certificates were issued by the Governor on the theory that he had been empowered under the Act of March 3, 1917, to determine who were legal residents of the Virgin Islands, since all civil and judicial powers were vested in him. Any undertaking to investigate and determine which aliens in the Virgin Islands were there unlawfully would have been a herculean if not an impossible task. Undue hardship and grave injustice to these aliens would undoubtedly have resulted. The Solicitor of the Department of Labor, in his opinion dated March 31, 1938, in discussing this point said:
It was the practice of the Governor of the Virgin Islands to issue a certificate of residence to any alien who had resided in the Virgin Islands for 1 year or more, regardless of the manner of his entry.
In Soto et al. v. The United States, 273 F. 628 (at p. 633), the court said: "The only laws of the United States applicable to the Virgin Islands are the Act of Congress of March 3, 1917, and the fundamental law of the Constitution guaranteeing certain rights to all within its protection."
In the cases of the few aliens who, undoubtedly, have been admitted in the Islands for permanent residence, although not required to comply with all the applicable provisions of the immigration laws owing to uncertainty as to which provisions apply to the islands, it would do no violence to the law to regard such admission as lawful for the purposes of the immigration and naturalization laws, under the principle that that is to be regarded as done which ought to have been done.
Administratively, in accordance with the foregoing opinion, we have ruled that an alien who entered the Virgin Islands of the United States prior to July 1, 1938, shall be presumed to have been lawfully admitted even though no record of an entry for permanent residence exists, In re J---- T---- (55981/201). This ruling should be extended to aliens who have entered the Virgin Islands prior to July 1, 1938, as temporary visitors, but who have remained to make their homes in the Islands, even though a record of their temporary admission exists. This presumption is deemed sufficient to cancel deportation proceedings based upon unlawful entry. It does not, however, legalize residence to an extent sufficient for naturalization purposes.
Naturalization is largely the function of the courts and only partially that of the Immigration and Naturalization Service. The failure to record accurately entries of aliens into the Virgin Islands presents more complex problems from the naturalization than from the immigration standpoint. A record of legal admission for permanent residence is a prerequisite to naturalization. No machinery has yet been devised to record the date of arrival of aliens in the Virgin Islands whom we may find not subject to deportation. Congress has provided for the registry of aliens who have entered the United States prior to July 1, 1924. But we are concerned with those aliens who entered the Virgin Islands between July 1, 1924, and July 1, 1938, whose entries have not been recorded and for whom no registry procedure exists. It should be noted that a bill was introduced into Congress on January 28, 1943 (H.R. 1573-78th Cong.), that provides among other things for the amendment of sec. 328 (b) of the Nationality Act of 1940 so that aliens who established residence in the Virgin Islands prior to July 1, 1938, shall be eligible for registry. A similar bill was favorably reported out of committee in the last session of Congress but was not enacted into law before the end of the session (H.R. 6858, 77th Cong.). The current bill, if passed, will make possible the eventual naturalization of aliens whose residence in the Virgin Islands prior to July 1, 1938, can be established. The bill also reflects congressional recognition of the use of July 1, 1938, as a focal date for the treatment of aliens in the Virgin Islands.
In view of our conclusion that the respondent's entry in 1929 shall be deemed a lawful entry, it is not necessary to discuss the validity of the document issued to the respondent by the Governor of the Virgin Islands.
FINDINGS OF FACT: Upon the basis of all the evidence presented, it is found:
(1) That the respondent is an alien, native and citizen of Belgium;
(2) That the respondent last entered the United States on August 24, 1929, at Frederiksted, St. Croix, V.I.;
(3) That at the time of entry, the respondent intended to remain in the Virgin Islands indefinitely;
(4) That the respondent was not in possession of an immigration visa at the time of her entry, although she did possess authorization for her admission from the Governor of the Virgin Islands.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That, administratively, a presumption has been established, in reference to the immigration laws, that aliens who entered the Virgin Islands prior to July 1, 1938, were admitted for permanent residence;
(2) That, by reason of the foregoing, under sections 13 and 14 of the Immigration Act of 1924, the respondent is not subject to deportation on the ground that she was not in possession of an immigration visa at the time of her entry.
ORDER: It is ordered that the warrant of arrest be canceled and the proceedings closed.