2223768 (56169/114).
Decided by Board June 4, 1946. Approved by Attorney General August 1, 1946.
Seventh proviso relief — Section 3 of the Immigration Act of 1917 — Discretion — Voluntary departure — Section 19 (c) of the Immigration Act of 1917, as amended — Good moral character.
The admission of the commission of the crime of perjury in immigration proceedings within the preceding 5 years need not preclude a showing of good moral character during such period nor the grant of voluntary departure (sec. 19 of the Immigration Act of 1917, as amended), and the advance exercise of seventh proviso relief (sec. 3 of the Immigration Act of 1917), where the alien has resided here for many years, has family ties, and has an otherwise good record.
CHARGES:
Warrant: Act of 1924 — No immigration visa.
Act of 1918, as amended — No passport. Act of 1940 — No visa, reentry permit, or border-crossing card.
Lodged: Act of 1917 — Admits commission of crime before entry; perjury.
BEFORE THE BOARD
Discussion: Respondent is a 34-year-old native and citizen of Canada. He was first brought to this country on November 22, 1918, and at that time was lawfully admitted for permanent residence. He left the United States in May 1928 and established a home in Canada. Except for a 1-week visit between Christmas 1928 and January 1929, respondent lived continuously in Canada until he entered the United States on July 4, 1929. Thereafter he made his home in the United States, only leaving here for brief visits in Canada of 3 or 4 days.
In May 1942 respondent applied for a resident alien's border-crossing card. In his application, executed under oath, he falsely stated that he had resided in the United States since November 1918 and that he had not been absent at any one time for over 6 months. He was thereafter granted a resident alien's border-crossing card and went to Canada on a visit. His last entry occurred at Rouses Point, N.Y., on May 31, 1942, when he was admitted as a returning resident in possession of the resident alien's border-crossing card previously issued to him.
The border-crossing card presented by the respondent at the time of his last entry was invalid because it had been procured by fraud. Under then existing law he was required to present an immigration visa at the time of his last entry. Not having had this document, or any type of valid visa, reentry permit or border-crossing card or passport, he is now subject to deportation of the documentary charges contained in the warrant of arrest.
At the hearing respondent was advised of the definition of perjury. He thereafter freely admitted that he had committed this crime at the time he made the false statements with respect to the continuity of his residence in the United States in his application for a border-crossing card. He is now subject to deportation on the lodged criminal charge, also.
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the respondent is an alien, a native and citizen of Canada;
(2) That the respondent last entered the United States at Rouses Point, N.Y., on May 31, 1942, and was then admitted as a returning resident in possession of a resident alien's border-crossing identification card;
(3) That the border-crossing identification card had been granted to the respondent in May 1942 upon the basis of an application, executed under oath, in which respondent had falsely stated that he had resided continuously in the United States since November 22, 1918;
(4) That the respondent had not resided continuously in the United States since November 22, 1918;
(5) That the respondent had lived in Canada from May 1928 until July 1929, and had not been in the United States during that period except for a 1-week visit at Christmastime 1928;
(6) That the respondent was not in possession of a visa or passport at the time of his last entry;
(7) That respondent admits the commission of the crime of perjury in May 1942.Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under sections 13 and 14 of the Immigration Act of 1924 the respondent is subject to deportation on the ground that at the time of entry he was an immigrant not in possession of a valid immigration visa and not exempted from the presentation thereof by said act or regulations made thereunder;
(2) That under section 19 of the act of February 5, 1917 and the act of June 28, 1940 respondent is subject to deportation on the ground that at the time of entry he did not present a valid visa and was not exempted from so doing, as an emergency case as defined by the Secretary of State, a reentry permit or border-crossing identification card as required by section 30 of title III of the act of June 28, 1940.
(3) That under section 19 of the act of February 5, 1917 and the Passport Act approved May 22, 1918, as amended, respondent is subject to deportation on the ground that at the time of entry he did not present an unexpired passport or official document in the nature of a passport issued by the government of the country to which he owes allegiance or other travel document showing his origin and identity as required by the Executive order in effect at the time of entry;
(4) That under section 19 of the act of February 5, 1917, respondent is subject to deportation on the ground that he admits having committed a felony or other crime or misdemeanor involving moral turpitude prior to entry, to wit: Perjury.
(5) That under section 20 of the act of February 5, 1917, respondent is deportable to Canada at Government expense.Other Factors: The Presiding Inspector recommended that the alien's case be forwarded to the Attorney General for consideration under the seventh proviso to section 3 of the act of February 5, 1917. This recommendation was predicated on the fact that the alien had established his good moral character, on the alien's continuous residence since 1929, and his marriage to an American citizen. The District Director at Boston, Mass., also recommended that the alien be permitted to adjust his immigration status by way of voluntary departure and advance exercise of the seventh proviso to section 3 of the act of February 5, 1917. The Commissioner, however, is of the opinion that the alien should be deported to Canada.
Respondent has been married to a native-born American citizen since October 16, 1940. Both he and his wife are gainfully employed. The respondent works for the Boston Maine R.R. as a trackman and earns about $30 weekly. The alien's wife earns $40 weekly as a machine operator. The alien and his wife own their own home, which is worth about $3,000. Their joint liquid assets amount to about $500. The alien has been in trouble with the police authorities on two occasions, in 1936 and 1937. On one occasion he was arrested for a traffic violation and fined about $14. On the other occasion he was arrested for a Hallowe'en prank which resulted in the destruction of some property and was fined $10 following his conviction of this offense. It is interesting to note that the United States attorney has declined to prosecute the alien because of his last illegal entry.
The alien is highly recommended by the manager of the Clarmont, N.H., Daily Eagle, by his section foreman at the Boston Maine R.R., and by his parish priest.
We agree with the Presiding Inspector and the District Director at Boston, Mass., that the alien has established his good moral character for the past 5 years. We also agree with these immigration officials that this alien should be permitted to remain in the United States with his American-born wife by granting his application for voluntary departure and the advance exercise of the seventh proviso. In our opinion the alien's almost 27 years' residence in the United States and his family ties here, as well as his record of good moral character since 1929 justify the grant of such relief.
Order: It is directed that an order of deportation be not 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 his choice, within 90 days after notification of decision, on consent of surety. Departure in accordance with the foregoing will be deemed sufficient to cancel the outstanding delivery bond.
It is further ordered, That if the alien reapplies for admission within 3 months after his authorized departure herefrom and is found otherwise admissible than as a person who admits the commission of the crime of perjuyr in May 1942, his admission under the seventh proviso to section 3 of the act of February 5, 1917, is hereby authorized.
As this case involves the exercise of the seventh proviso to section 3 of the act of February 5, 1917, the Board certifies its decision and order to the Attorney General for review in accordance with 8 C.F.R. 90.12.
The decision and order of the Board of Immigration Appeals dated June 4, 1946, are hereby approved.