V-949216
Decided by the Board October 6, 1953
Suspension of deportation — Application filed subsequent to June 27, 1952, must be considered under section 244 of the Immigration and Nationality Act — Savings clause, section 405 (a) of the Immigration and Nationality Act.
An application for suspension of deportation filed on November 19, 1952, must be determined in accordance with the provisions of section 244 of the Immigration and Nationality Act. The last sentence of section 405 (a) of that act operates to restrict the meaning of a "proceeding" within the terms of the first sentence, with regard to applications for suspension of deportation, to such applications as were pending on the date of the enactment of that act.
CHARGE:
Warrant: Act of 1924 — Servant of an accredited official of a foreign government-failed to maintain exempt status.
BEFORE THE BOARD
Discussion: Respondent has appealed from the decision of the hearing officer entered on February 13, 1953, finding her deportable on the charge stated in the warrant of arrest and granting her the privilege of voluntary departure. Deportability is conceded. The appeal is directed solely to the denial of the respondent's application for suspension of deportation.
The record relates to a 33-year-old unmarried female, a native and citizen of Spain, whose only entry into the United States occurred at the port of New York, N.Y. on March 31, 1950, at which time she was admitted under section 3 (1) of the Immigration Act of 1924, for duration of existing status. She was then destined to one I---- O---- de M----, of the Spanish Embassy, Washington, D.C., as a house servant. The respondent testified that such employment was terminated on July 4, 1951, in order to avoid embarrassment to her employer, due to the birth of a child born to her out of wedlock on June 15, 1951. The evidence of record establishes the respondent's deportability on the charge stated in the warrant of arrest.
The respondent was served with warrant of arrest on November 19, 1952, and on the same date filed an application for suspension of deportation on the basis that her deportation would result in serious economic detriment to her citizen child. The hearing officer concluded that the respondent's eligibility for suspension of deportation must be determined under section 244 of the Immigration and Nationality Act, that since the respondent entered the United States more than 2 years prior to the enactment of that act, her eligibility must be established under section 244 (a) (1), and that, inasmuch as she had resided in the United States less than 7 years prior to application for suspension as provided therein, she was ineligible therefor, and her application was denied.
Counsel for respondent urges that the respondent's application for suspension of deportation should have been considered under the provisions of section 19 (c) of the Immigration Act of 1917, as amended; that section 405 (a) of the Immigration and Nationality Act saved all substantive rights existing prior to the effective date of the act; that the respondent's substantive right to supsension of deportation existed prior to the effective date of the act inasmuch as her United States citizen child was born on June 15, 1951, and hence her right to suspension of deportation was continued in force and effect notwithstanding the specific language of the last sentence of section 405 (a). He further contends that a literal reading of the first and last sentences of section 405 (a) creates a patent ambiguity which can only be resolved by concluding that Congress intended that preexisting substantive rights with respect to suspension of deportation were intended to be continued in force and effect by the act. He further states that nowhere in section 405 (a) or in the act is it specifically provided that section 19 of the Immigration Act of 1917, as amended, is not to be continued in force and effect.
We cannot concur in counsel's argument.
The pertinent provisions of section 405 (a) follow:
Nothing contained in this act, unless otherwise specifically provided therein, shall be construed to affect the validity of any declaration of intention, petition for naturalization, certificate of naturalization, certificate of citizenship, warrant of arrest, order or warrant of deportation, order of exclusion, or other document or proceeding which shall be valid at the time this act shall take effect; or to affect any prosecution, suit, action, or proceedings, civil or criminal, brought, or any status, condition, right in process of acquisition, act, thing, liability, obligation, or matter, civil or criminal, done or existing at the time this act shall take effect; but as to all such prosecutions, suits, actions, proceedings, statutes, conditions, rights, acts, things, liabilities, obligations, or matters the statutes or parts of statutes repealed by this act are, unless otherwise specifically provided therein, hereby continued in force and effect. * * * An application for suspension of deportation under section 19 of the Immigration Act of 1917, as amended, or for adjustment of status under section 4 of the Displaced Persons Act of 1948, as amended, which is pending on the date of enactment of this act, shall be regarded as a proceeding within the meaning of this subsection.
The repealing provisions of the Immigration and Nationality Act are contained in section 403 (a):
The following acts and all amendments thereto and parts of acts and all amendments thereto are repealed:
* * * * * * *
(13) Act of February 5, 1917 ( 39 Stat. 874).
Thus the Immigration and Nationality Act specifically repeals the provisions of the Immigration Act of 1917, as amended. Certain provisions thereof are saved by section 405 (a).
A savings clause is, like a proviso, an exemption from the general operation of the statute. It is generally employed to restrict repealing acts; to continue repealed acts in force as to existing powers, inchoate rights, penalties incurred, and pending proceedings, depending on the repealed statute. A repeal destroys such rights, powers and proceedings and discharges the penalties. Thus to preserve them a special provision with saving effect is necessary. (Sutherland, Statutory Construction, 3d ed., vol. 3, p. 475). Savings clauses are usually strictly construed ( State v. Brady, 102 Texas 408, 118 S.W. 128 (1909).)
We must conclude that the words of the last sentence of section 405 (a) operate to restrict the meaning of a "proceeding" within the terms of the first sentence, with regard to applications for suspension of deportation, to such applications as were pending on the date of enactment. "It is an elementary rule of construction that effect must be given, if possible, to every word, clause and sentence of a statute." ( State v. Bartley, 39 Neb. 353, 58 N.W. 172 (1894). See also Wilkinson v. Leland, 2 Pet. (27 U.S.) 627, 662, 7 L. Ed. 542 (1829); In re Matthews, 109 Fed. 603 (1901); Ambler v. Whipple, 139 Ill. 311, 28 N.E. 841, 32 Am. St. Rep. 202 (1891); Sherman v. Des Moines, 100 Iowa 88, 69 N.W. 410 (1896); Commonwealth v. Certain Intoxicating Liquors, 108 Mass. 19 (1871); Matter of New York Brooklyn Bridge, 72 N.Y. 527 (1878).) One who contends that a section of an act must not be read literally must show either that some other section of the act expands or restricts its meaning, that the section itself is repugnant to the general purview of the act, or the act considered in pari materia with other acts, or with the legislative history of the subject matter, imports a different meaning. (Sutherland ( supra), pp. 335-6.) Counsel has made no such showing.
In view of the foregoing, it is our conclusion that the respondent's application for suspension of deportation was properly determined under the provisions of the Immigration and Nationality Act. Inasmuch as the respondent is ineligible for suspension of deportation under that act, we must approve the decision and order of the hearing officer and dismiss the appeal.
Order: It is ordered that the appeal be, and the same is hereby, dismissed.