A-8863819, 0800-94022.
Decided by Board September 21, 1955.
Voluntary departure — Section 244 (e) of Immigration and Nationality Act — Good moral character.
(1) The five-year period of good moral character which an alien must establish to qualify for voluntary departure under section 244 (e) of the Immigration and Nationality Act does not apply to an alien deportable under sections 241 (a) (4) and (11) of the act.
(2) To qualify for voluntary departure under section 244 (e) of the act, an alien deportable under sections 241 (a) (4) and (11) must also show that he is within the provisions of sections 244 (a) (4) or (5) of the act. Hence, he is required to establish good moral character and continuous residence in the United States for a ten-year period immediately preceding the date of his application for relief.
BEFORE THE BOARD
Discussion: The respondent on motion seeks a reopening of the above-captioned proceedings for the introduction of additional evidence relative to the issue of alienage. Counsel in the alternative seeks a reopening of the proceedings to permit application for voluntary departure, advance exercise of the relief provided in section 212 (c) of the Immigration and Nationality Act of 1952 and preexamination under 8 C.F.R. 485. Counsel further avers that respondent has been called by the Immigration and Naturalization Service to report for deportation on September 22, 1955. A stay of deportation pending consideration of the motion is requested. Oral argument on the motion is also sought.
The facts of the case are fully set forth in the opinion of the special inquiry officer dated April 2, 1954, and are incorporated herein by reference. Briefly, they show that respondent has been found subject to deportation under sections 241 (a) (11) (a narcotic charge) and 241 (a) (4) (a criminal charge) of the Immigration and Nationality Act of 1952. His claim to native birth was found to be unsupported by substantial evidence in the opinion of the special inquiry officer dated April 2, 1954. This Board on June 25, 1954, dismissed the appeal from the special inquiry officer's order of deportation. The evidence establishes that respondent has resided in the United States for 35 years, is married to a United States citizen and is the father of two native-born minor children.
Counsel's plea for a reopening of the proceedings for the introduction of evidence anticipated to be available on the issue of alienage must be rejected. 8 C.F.R. 6.21 relates that a motion to reopen shall state the new facts to be proved and shall be supported by affidavits or other evidentiary material. The motion before us is unsupported and makes no reference to the new facts to be proved. Furthermore, the issue of alienage was firmly settled in the instant case by the United States Court of Appeals, Sixth Circuit ( United States ex rel. Vermiglio v. Butterfield 223 F. (2d) 804, June 9, 1955).
Counsel in the alternative pleads for a reopening of the proceedings to permit application for voluntary departure, advance exercise of the relief afforded in section 212 (c) ( supra) and preexamination under 8 C.F.R. 485. Section 101 (f) (7) of the 1952 act precludes an alien from establishing good moral character if during the period for which good moral character is required he has been confined as a result of conviction to a penal institution for an aggregate period of 180 days or more, regardless of whether the offense or offenses for which he was confined were committed within or without such period. Section 244 (e) of the same act precludes the Attorney General from granting voluntary departure to an alien deportable under sections 241 (a) (4) and (11) unless he "is also within the provisions of paragraph (4) or (5) of subsection (a) of this section" (244). Counsel urges that a liberal and reasonable interpretation of the foregoing provisions which are remedial in substance would require respondent to establish good moral character for only five years as set forth in section 244 (e) and not ten years as provided in section 244 (a) (5). Counsel argues that the two provisions are inconsistent and cites authority to the effect that a liberal construction should be adopted.
Lau Ow Bew v. United States, 144 U.S. 47, 59 (1892); Ozawa v. United States, 260 U.S. 178, 194 (1922); United States v. Kirby, 7 Wall 482, 487 (1869).
Counsel also argues the point that a liberal interpretation of the requirement set forth in section 244 (a) (5) ( supra), viz., "has been physically present in the United States for a continuous period of not less than ten years immediately following the commission of an act, or the assumption of a status, constituting a ground for deportation, and proves that during all of such period he has been and is a person of good moral character * * *" would qualify respondent for relief under section 244 (e) because he can show good moral character for more than 10 years following his second conviction on October 18, 1934, the date he assumed a deportable status as a criminal alien under section 244 (a) (4) of the 1952 act.
We must reject the arguments of counsel. It is our opinion that an alien to be "also within the provisions of paragraph (4) or (5) of subsection (a) of this section" (244) must meet both the 10-year physical presence and the 10-year good moral character requirement set forth therein. This is so because the exception set forth in 244 (e) ( supra) refers to the "provisions," (an all inclusive word), of paragraphs (4) or (5) of section 244 (a) which an alien must come within. The "provisions" set forth in section 244 (a) (5) and pertinent here are in the conjunctive and not the disjunctive.
Counsel's argument that respondent can show 10 years of good moral character subsequent to his second conviction on October 18, 1934, which counsel urges as the cut-off date for the assumption of a deportable status under section 241 (a) (4) ( supra), must also be rejected. The respondent's criminal convictions span a period of from 1929 to March of 1947, any two of which would render him deportable under section 241 (a) (4). Inasmuch as he was last convicted for a crime involving moral turpitude in 1947 and served more than 180 days for said conviction within the 10-year period, he is precluded from establishing good moral character under the provisions of section 101 (f) (7) of the 1952 act. Furthermore, we have held that physical presence and good moral character, insofar as section 244 (a) (5) is concerned, must be proved for 10 years preceding the date the application for relief is filed ( Matter of M----, A-2669541, 5 IN Dec. 261, 268, B.I.A., June 1, 1953).
Since we find no merit to respondent's motion on either the issue of alienage or discretionary relief there is no need for oral argument on the motion or a stay of deportation.
Order: It is directed that the motion be and the same is hereby denied.