A-2221498
Decided by Board July 30, 1952
Deportability: Former naturalized person whose last entry as citizen — Immigration visa; doctrine of relation back invoked in case of former naturalized citizen who had not been a legal resident prior to naturalization.
(1) Alien, who at time of last entry, had the status of a naturalized citizen but whose naturalization was later canceled for fraud and who prior to his naturalization had not been a legal resident of the United States is deportable on the charge of no immigration visa, case being distinguishable from Matter of C----, A-5982828, 3 IN Dec. 275, in which case the alien had been a legal resident prior to his naturalization. Cf. Matter of P----, A-4068102, 4 IN Dec. 373).
CHARGES:
Warrant: Act of 1924 — No immigration visa. Act of 1917 — Admits crime prior to entry — Procuring naturalization through fraud.
BEFORE THE BOARD
Discussion: The case comes forward on appeal from the order dated November 28, 1951, of the Assistant Commissioner ordering the respondent deported on the charges stated in the warrant of arrest.
The record relates to a native and citizen of Italy, 57 years old, male, who last entered the United States at the port of New York on May 26, 1947, ex-S.S. Sobieski and was admitted as a citizen. The facts of the case are fully set forth in the decision of the Assistant Commissioner. Counsel at oral argument took issue with the finding of deportability predicated upon the last entry of the respondent on May 26, 1947, alleging that the respondent is not subject to deportation on the basis of the 1947 entry when he was admitted as a citizen, but if deportable, is deportable on the basis of a previous entry on September 4, 1936, when he was admitted as an alien in possession of a reentry permit.
Counsel relies upon Matter of C----, 3 IN Dec. 275, to support his possession. He concedes that there is a factual difference in the two cases, in that in the cited case the respondent had been a legal resident prior to his naturalization which was later canceled for fraud, whereas in the instant case the respondent had surrendered his legal residence when he left the United States in 1921, and had reentered as a stowaway in 1930.
We find the factual difference of the two cases to be decisive of the question of deportability in the instant case. In Matter of C---- ( supra), the respondent had been lawfully admitted for permanent residence in 1923, was naturalized in 1930, reentered in 1931 as a citizen, and his naturalization was canceled for actual fraud in 1944. It is to be noted however that he was a lawfully admitted permanent resident and at the time of his last entry in 1931 was returning to an unrelinquished lawful residence in the United States. In the instant case, the respondent at the time of his last entry, although admitted as a citizen, was not returning to a lawful residence, but was returning to an illegal residence in the United States, which he had entered as a stowaway in 1930. Under such circumstances, the respondent will not be held to be entitled to the fruits of his fraudulent naturalization. We accordingly find the ground of deportability to be sustained.
There remains for consideration the various forms of discretionary relief requested by counsel. Inasmuch as we find the ground of deportability sustained, suspension of deportation is not available since one of the grounds of deportability is comprehended in section 19 (d) of the Immigration Act of 1917, as amended. Although the respondent has long residence in the United States, he has no family ties here, his wife and three children being citizens and residents of Italy. In the absence of family ties, consideration of 7th proviso relief is not warranted. The request for stay of deportation to permit application for a pardon of the criminal offense would seem to be premature at this time as much as no petition for pardon has actually been filed and authority exists in the Service to stay deportation in the event such action is warranted.
Order: It is ordered that the appeal be and the same is hereby dismissed.