A-1058627
Decided by the Board October 28, 1953
Seventh proviso — Not effective with respect to a ground of inadmissibility created by the Immigration and Nationality Act — Voluntary departure.
(1) The seventh proviso to section 3 of the Immigration Act of 1917, as amended, cannot be used to waive a ground of inadmissibility created by the Immigration and Nationality Act.
(2) The discretionary relief of voluntary departure is granted even though the respondent may not be in a position to obtain an immigrant visa or to secure readmission to the United States.
CHARGES:
Warrant: Act of 1924 — Visa procured by fraud or misrepresentation.
Act of 1924 — Not nonquota as specified in visa.
Lodged: Act of 1917-Admits crime prior to entry-Perjury and forgery.
BEFORE THE BOARD
Discussion: This case is before us on the basis of the Acting Assistant Commissioner's order of May 13, 1952, directing the respondent's deportation and certifying the case to this Board for final decision.
The respondent is a 51-year-old female, native and citizen of Italy, whose only entry occurred on August 25, 1925, when she was admitted for permanent residence on presentation of an immigration visa. She secured a nonquota immigration visa by impersonating her younger sister who had been born in Argentina. The respondent, having been born in Italy, was not entitled to nonquota status. At the immigration hearing, the respondent admitted that she committed perjury and forgery on July 13, 1925, when she secured the immigration visa which she used in obtaining admission to the United States. In view of the foregoing, we conclude that the charges stated in the warrant of arrest and the charge lodged at the hearing are sustained.
The respondent was coming to the United States for the purpose of marriage to her fiance and, as a matter of fact, was married 2 days after her arrival. She and her husband have lived together since that time and now own a farm valued at about $30,000 which is clear of encumbrance. She has two native born children. The respondent has no criminal record and the only offense which she committed was in connection with the procurement of the nonquota visa which took place over 28 years ago. Apparently, the respondent voluntarily submitted herself to deportation and applied for suspension of deportation by the execution of Form I-256 on March 31, 1949.
The respondent desires to adjust her immigration status to that of a lawful permanent resident of the United States, and we have given careful consideration to her case with the view of affording any relief which may be possible. We would have no hesitancy in granting to the respondent voluntary departure, preexamination and the advance exercise of the seventh proviso to section 3 of the Immigration Act of 1917 since we consider this case to be clearly one in which that discretionary relief would be warranted. However, section 212 (a) (19) of the 1952 act provides that an alien who has procured a visa by fraud or by willfully misrepresenting a material fact shall be ineligible to receive a visa and shall be excluded from admission into the United States. Hence, if the respondent were to depart from the United States she would not be in a position to obtain a new immigrant visa nor to secure admission to the United States because of the fraud connected with the procurement of the visa in 1925. While we could exercise the seventh proviso to section 3 of the Immigration Act of 1917 to waive the ground of excludability relating to the respondent's admission of the commission of perjury and forgery, we cannot use the seventh proviso to waive the ground of inadmissibility under section 212 (a) (19) since that was not a ground of inadmissibility under section 3 of the Immigration Act of 1917. We are also not in a position to exercise the discretion contained in section 212 (c) of the Immigration and Nationality Act of 1952 since, by the specific terms of that provision, the discretion can be exercised only with respect to aliens lawfully admitted for permanent residence who are returning to a lawful unrelinquished domicile of 7 consecutive years whereas the respondent has never been lawfully admitted for permanent residence. Section 244 (e) of the Immigration and Nationality Act permits us to grant voluntary departure to the respondent since she is not within any of the enumerated paragraphs of section 241 (a) and we are satisfied that she has established good moral character for more than the last 5 years. While it appears that the grant of voluntary departure in this case will be of little value to the respondent since it does not appear that she will be in a position to obtain an immigrant visa or to secure readmission to the United States, we will, nevertheless, grant her this form of relief which is the only relief available in this case. Accordingly, the following order will be entered.
Order: It is ordered that the outstanding order of deportation be withdrawn and the alien be permitted to depart voluntarily from the United States without expense to the Government, to any country of her choice, within such period of time, in any event not less than 3 months, and under such conditions as the officer-in-charge of the district deems appropriate.
It is further ordered that if the alien does not depart from the United States in accordance with the foregoing, the order of deportation be reinstated and executed.