A-6250408
Decided by Central Office, August 19, 1949 Decided by Board, November 25, 1949
Suspension of Deportation — Section 19 of the Immigration Act of 1917, as amended — "Serious economic detriment".
Whether the deportation of the alien mother would result in a serious economic detriment to the minor (about 2 years old) United States born child, living here with the mother and the legally resident alien father, within the meaning of section 19 (c) of the Immigration Act of 1917, as amended, is a question determined from all the relevant factors and circumstances involved, and the child's need of an unbroken home with joint parental care may be a consideration (among others) in reaching such a determination.
CHARGE:
Warrant: Act of 1924 — Remained longer, visitor.
BEFORE THE CENTRAL OFFICE
Discussion as to deportability: The record relates to a 36-year-old married female, a native and citizen of Greece, who entered the United States at Baltimore, Md., on February 20, 1946, as a visitor for 6 months. That entry has been verified. The alien admits that this was her only entry into this country and that at the time of such entry it was her intention to return to Greece at the expiration of 6 months. She further testified that she was granted extensions of stay to July 1947, and has resided continuously in the United States since her entry on February 20, 1946. On March 3, 1946, she was married, after which she decided to remain permanently in the United States. She has never been admitted to the United States for permanent residence. The alien is, therefore, deportable under the Immigration Act of 1924.
Discussion as to eligibility for suspension of deportation:
The record shows that the alien was legally married to T---- P. T---- on March 3, 1946. She was previously married and submitted a certificate showing the death of her first husband on May 26, 1939. Respondent and her husband have one child born on August 23, 1947, at New York, N.Y. She testified that she had assets of $100,000 in cash and securities and that her son is dependent upon her and her husband for support. Her husband came to the United States as a diplomat in 1924 and has applied for suspension of deportation based upon his long residence in the United States. The respondent's husband is a general partner in the firm of Delafield Delafield, stock brokers in which firm he has contributed to the capital in the sum of $15,000 in cash and has present drawing averaging $2,000 per month. It is apparent that the alien's deportation would not result in any serious economic detriment to her minor native-born child.
Recommendation: It is recommended that the application for suspension of deportation be denied.
It is further recommended, 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 her choice within 90 days after notification of decision, conditioned upon arrangements being made with the local immigration office for verification of departure.
So ordered.
Discussion as to deportability: This matter is before us on appeal from a decision of the Assistant Commissioner of Immigration and Naturalization dated August 19, 1949, wherein the subject of this proceeding was found deportable because she remained longer than permitted under the provisions of the act approved May 26, 1924 and the regulations made thereunder (8 U.S.C., Secs. 214 and 215).
The evidence of record shows that the appellant was born in Greece on January 29, 1913, and that she is a citizen of the country of her nativity. This individual arrived at Baltimore, Md., on February 20, 1946, on S.S. Ameriki, and following her arrival, she was admitted to this country as a nonimmigrant visitor for a period of 6 months under the provisions of section 3, sub. 2 of the Immigration Act of 1924 (8 U.S.C. sec. 203). About a month subsequent to her arrival, she married one T---- P. T---- who, according to his statement, came to this country during the year of 1924 as a diplomat, and thereafter remained.
The alien applied for an extension of her temporary admission, and such extension was granted to July 1947. A further application for an additional extension of temporary admission was denied on July 1, 1947, but notwithstanding such denial, the alien remained in the United States.
A male child was born of this union on August 23, 1947.
The husband applied for suspension of deportation, and on August 19, 1949, his application therefor was granted. Discussion as to eligibility for suspension of deportation: The evidence of record reveals that the subject of this proceeding was married to T---- P. T---- on March 3, 1946. A prior marriage of the appellant was dissolved by the death of her prior spouse. Suspension of deportation is sought by reason of alleged serious economic detriment to the male child born in New York on August 23, 1947.
The Assistant Commissioner of Immigration and Naturalization in his decision of August 19, 1949, points out the circumstances under which the alien's husband came to the United States in 1924, and his subsequent long residence, and that the said husband is a general partner in the firm of Delafield Delafield, stockbrokers in New York City, in which firm he has capital investment of $15,000, and a monthly drawing averaging $2,000. The alien has assets of some $100,000, and by reason of the financial worth of these persons, an application of suspension of deportation was denied in that —
"It is apparent that the alien's deportation would not result in a serious economic detriment to her minor native-born child."
The Assistant Commissioner of Immigration and Naturalization granted the alien permission to depart from the United States, without expense to the Government, to any country of her choice, within 90 days after notification of decision. However, by reason of the preemption of the quota for Greece, the enforced departure of the alien would in all probability result in a long absence abroad.
Counsel in brief filed in connection with the present appeal asserts that the decision of the Assistant Commissioner of Immigration and Naturalization is obviously shocking and inhumane, and wholly contrary to law, and that the conclusion that the alien's deportation would not result in a serious economic detriment to her minor child is arbitrary, capricious and opposed to both the letter and the spirit of the statute.
As a basis for this assertion, counsel indicates that as a matter of ordinary common sense, no one could possibly take the position that the loss of a 2-year-old child's mother for an indefinite period would not be a serious detriment to the child, because no amount of nurses, governesses or pediatricians can take the place of this or any child's life of love and care of his mother. On the other hand, if the child were to be taken to Europe, he would be forced to suffer the detriment of being brought up in the foreign land without the love, care, and guidance of his father. Counsel further contends that Mr. T---- would not be in a position to accompany his wife and child to Greece, as he would have no means of support in that country.
It is conceded that Mrs. T---- has cash and securities amounting to $100,000, but counsel points out under the social welfare law of New York, section 101, that both the father and mother of a minor child are legally responsible for his support, and that a married woman is a joint guardian of her child with her husband, with equal powers, rights and duties in regard to him (New York Domestic Relations Law, sec. 81). The latter section thus eliminates the common law preference for the father as the child's guardian.
Counsel points out other considerations in addition to the foregoing, and more particularly the interpretation which he feels should be placed upon the statute that the term economic as need therein may include all that pertains to the satisfaction of man's needs, and that the child's greatest needs are the love and care of his mother and father in an unbroken home.
This Board has given careful consideration to all the evidence of record, as well as all of the representations of counsel, and to the decision of the Assistant Commissioner of Immigration and Naturalization, and it is our conclusion that to enforce the departure of this appellant from the United States would in our opinion result in a serious economic detriment to this minor United States born child, particularly in the light of the condition of the quota for Greece, as well as the present chaotic condition abroad, particularly in the country of the alien's nativity. Moreover, we feel that the assertions of counsel as hereinabove set forth more nearly accurately establish the serious economic detriment obtaining in this case were the alien to be deported. The evidence establishes that the alien is a person of good moral character.
Suspension of deportation — findings of fact: Upon the basis of all the evidence presented, it is found:
(1) That the alien is not ineligible for naturalization in the United States;
(2) That the alien is a person of good moral character, and has been of such good moral character for the preceding 5 years;
(3) That deportation of the alien would result in serious economic detriment to the minor infant son, a native born citizen of the United States;
(4) That after diligent inquiry, no facts have been developed which would indicate that the alien is subject to deportation under any of the provisions of Section 19 (d) of the Immigration Act of February 5, 1917, as amended.Suspension of deportation — conclusion of law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That the alien is eligible for suspension of deportation under the provisions of section 19 (c) (2) of the Immigration Act of February 5, 1917, as amended;Order: It is ordered that deportation of the alien be suspended under the provisions of section 19 (c), sub. (2) of the Immigration Act of February 5, 1917, as amended.
It is further ordered, That the order entered by the Assistant Commission of Immigration and Naturalization on August 19, 1949, be and the same is hereby withdrawn.
It is further ordered, That if during the session of the Congress at which this case is reported, or prior to the close of the session of the Congress next following the session at which this case is reported, the Congress passes a concurrent resolution, stating in substance that it favors the suspension of such deportation, the proceeding be canceled upon the payment of the required fee and that the alien be charged to the quota for Greece.