56158/554
Decided by the Board August 12, 1944
Lawful Residence — Visa as Returning Lawful Resident — Section 4 (b) of the Immigration Act of 1924.
An alien admitted to the United States for permanent residence in possession of an immigration visa, though at the time of entry subject to exclusion as one who was convicted of a crime involving moral turpitude, does not become a lawful resident of the United States on the basis of such admission, and is not thereafter entitled to an immigration visa issued under the provisions of section 4 (b) of the Immigration Act of 1924 to a returning lawful resident, when applying for readmission after a brief absence to contiguous territory.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — Immigrant without immigration visa.
Act of 1917 — Admits commission and was convicted of crime involving moral turpitude, to wit: Theft (Larceny).
BEFORE THE BOARD
Discussion: The appellant, a 40-year-old native and citizen of Mexico, applied for admission at Laredo, Tex., on March 27, 1944, to resume his residence in the United States. After hearings held on March 28, 1944, and May 5, 1944, a Board of Special Inquiry excluded him on the grounds above stated.
The appellant originally entered the United States legally in August 1919 and continued to reside here until 1924. He testified that in 1924 he was convicted of theft of a suit of clothes in Buffalo, New York, and was sentenced to serve a term of imprisonment of 90 days. Following his conviction and sentence the appellant was served with a warrant of arrest in deportation proceedings, and after hearing thereon was deported to Mexico on September 28, 1924, on the ground that at the time of his entry (in 1919) he was a person likely to become a public charge. During the instant hearing the appellant admits that he committed the crime of theft and was convicted upon his plea of guilty to that offense in the city court of Buffalo, New York, in 1924. The record of conviction was not introduced in evidence.
Probably larceny, since the New York Penal Law contains no offense described as "theft."
After his deportation in 1924, the appellant remained outside the United States until 1927. On June 10, 1927, he was admitted to the United States for permanent residence at Laredo, Tex., upon presentation of an immigration visa. The appellant testified that he was not asked and did not reveal his conviction for theft either to the American Consul who issued the visa or to the immigration officers who passed on his admissibility. The appellant resided in the United State continuously from the time of his admission in 1927 until February 8, 1944. On the latter date he departed to Mexico to visit his sick mother, leaving behind in the United States his wife and four children. He remained in Mexico until March 27, 1944, at which time he made the instant application for admission to resume his residence. He presents a nonquota immigration visa issued by the American Vice-consul at Nuevo Laredo, Tamps., Mexico, on March 27, 1944, under section 4 (b) of the Immigration Act of 1924.
The Board of Special Inquiry found the appellant inadmissible on the grounds above stated. The visa presented by the appellant is rejected by the Board of Special Inquiry on the theory that his residence in the United States since 1927 was illegal because he had obtained his original visa and admission by fraud (concealing his conviction for theft), and therefore cannot enjoy the status of a returning legal resident. Although there is no evidence that the appellant practiced any fraud or misrepresentation in securing his original visa in 1927, he must nevertheless be regarded as an illegal resident, since he was subject to deportation at all times that he lived in the United States by reason of his conviction of a crime involving moral turpitude prior to his entry (section 19 of the Immigration Act of 1917).
We have, however, presented all the facts in this case to the Department of State, and on June 30, 1944, that Department amended the visa presented by the appellant to indicate its issuance by the American Consulate at Nuevo Laredo under Section 4 (c) rather than 4 (b) of the Immigration Act of 1924. This amendment was made, however, with the understanding that this Board would exercise the discretion authorized by the seventh proviso to section 3 of the Immigration Act of 1917 with respect to the appellant's inadmissibility as a person who has been convicted of or who admits the commission of a crime involving moral turpitude.
We shall exercise such discretion in the appellant's behalf. The record shows that the appellant is married to a legal resident of the United States and is he father of four children, the two youngest of whom are natives and citizens of the United States. The appellant is a coal miner by occupation and resides with his family at Hoult, W. Va., where he has made his home since 1934. Prior to that time he resided in Lynch, Ky. Aside from the appellant's arrest and conviction for theft in Buffalo, New York, in 1924, he has not run afoul of the law save for two arrests for drunkenness. He appears in all other respects to be a law-abiding resident.
By reason of the foregoing the appellant is admissible to the United States to resume his residence. Although the record does not sustain the appellant's inadmissibility as a person who has been convicted of a crime involving moral turpitude (the record of conviction is not in evidence), we shall assume his conviction in exercising discretionary relief. Findings of Fact: Upon the basis of all the evidence presented, it is found:
It might be mentioned in passing that the appellant's deportation in 1924 and subsequent reentry in 1927 places him outside the requirements of the act of March 2, 1929, insofar as permission to reapply for admission after previous arrest and deportation is concerned. Although the 1929 act applies to aliens deported both before and after its enactment it cannot be said to apply to those deported aliens who have reestablished residence in the United States prior to the effective date of the Act of March 2, 1929.
(1) That the appellant is an alien, a native and citizen of Mexico;
(2) That the appellant is applying for admission to resume his residence in the United States;
(3) That the appellant was admitted to the United States for permanent residence at Laredo, Tex., on June 10, 1927;
(4) That the appellant presents a nonquota immigration visa issued by the American Consulate at Nuevo Laredo, Mexico, on March 27, 1944, under Section 4 (b) of the Immigration Act of 1924;
(5) That the appellant admits the commission of "theft" committed in Buffalo in 1924;
(6) That the Department of State has amended the visa referred to in Finding of Fact 4 to indicate its issuance under section 4 (c) rather than 4 (b) of the Immigration Act of 1924;
(7) That this board shall exercise the discretion authorized by the seventh proviso to section 3 of the Immigration Act of 1917 with respect to the appellant's inadmissibility as a person who has been convicted of and who admits the commission of a crime involving moral turpitude, to wit: Theft (larceny) committed in Buffalo, N.Y., in 1924.Conclusions of Law: Upon the basis of the foregoing findings of fact it is concluded:
(1) That under Section 13 of the Immigration Act of 1924 the appellant is not inadmissible as an immigrant not in possession of a valid immigration visa because the Secretary of State has amended the visa he presents to show its issuance under section 4 (c) of the Immigration Act of 1924;
(2) That under section 3 of the Immigration Act of 1917 the appellant is not inadmissible as a person who has been convicted of and/or who admits the commission of a crime involving moral turpitude, to wit: Theft (larceny) committed in Buffalo, N.Y. in 1924, because this board exercises the discretion contained in the Seventh Proviso to Section 3 of the Immigration Act of 1917 with regard thereto.Order: It is ordered that the appellant be admitted to resume his residence under the seventh proviso to section 3 of the Immigration Act of February 5, 1917, notwithstanding his inadmissibility as a person who has been convicted of, and who admits the commission of a crime involving moral turpitude, to wit: Theft (larceny), in Buffalo, N.Y., in 1924.