In the Matter of W

Board of Immigration AppealsSep 24, 1943
1 I&N Dec. 543 (B.I.A. 1943)

55933/565

Decided by the Board September 24, 1943.

Suspension of deportation and voluntary departure — Exercise of discretion.

1. The granting of voluntary departure or suspension of deportation pursuant to section 19 (c) of the Immigration Act of 1917, as amended, is discretionary, and where unfavorable factors are present discretion need not be exercised although the alien has been a person of good moral character during the preceding 5 years.

2. Suspension of deportation will not be granted when for several years after the institution of deportation proceedings the alien falsely and knowingly claimed to be a citizen of the United States and refused to testify in the proceedings.

CHARGES:

Warrant: Act of 1924 — Immigrant without an immigration visa.

Mr. Julius H. Selinger and Mr. Joseph Dubovik, for the respondent.

Mr. Leon Ulman, Board attorney-examiner.


The respondent is a native and citizen of Poland, 33 years of age, married. She last entered the United States on February 4, 1936, at New York on the S.S. Pilsudski. It was her intention to remain in the United States permanently and she did not have an immigration visa. The respondent was admitted to the United States by falsely claiming that she was a citizen of the United States.

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 Poland;

(2) That the respondent last entered the United States on February 4, 1936, at the port of New York, N.Y., on the S.S. Pilsudski;

(3) That the respondent entered the United States for permanent residence;

(4) That the respondent did not have an immigration visa;

(5) That the respondent was admitted by falsely claiming to be a citizen of the United States.

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 in that at the time of entry she was an immigrant not in possession of an unexpired immigration visa;

(2) That under section 20 of the Immigration Act of 1917, the respondent is deportable to Poland at Government expense.

SUSPENSION OF DEPORTATION — FACTORS: The respondent is of the white race. On May 6, 1941, she married a citizen of the United States. There is no issue of the marriage. The respondent is employed earning $28 per week. Her husband is employed earning $45 per week.

The respondent is registered under the Alien Registration Act of 1940. The Federal Bureau of Investigation has no criminal record concerning her. She testified that she has never been arrested or convicted of any crime. An independent investigation was conducted in the case and nothing detrimental to the alien's character was ascertained. Two witnesses each of whom has known the respondent for 5 years or more have testified in her behalf that they know her to be a person of good moral character in the community. After inquiry no facts have been developed to establish that the respondent is deportable under any of the provisions of section 19 (d) of the Immigration Act of 1917, as amended.

The presiding inspector recommends that the respondent's application be denied and that an order of deportation be entered. The Central Office concurs. Exceptions have been filed. The proposed action is predicated on the finding that the respondent has not been a person of good moral character for the preceding 5 years. The hearings in the case were conducted over a period of years, beginning in January 1937, and ending in November 1942. Until June 1941 the respondent refused to take an oath or to testify, stating that she was G---- W----, a native and citizen of the United States. The Government contended that the respondent was not G---- W---- but a sister Named J----, a native and citizen of Poland. To support its claim the Government called witnesses who testified that the respondent was J----. Finally after the respondent was married in 1941 she came forward to testify under oath and admitted that the Government's contention was true.

Counsel contends that the respondent was under no duty to take an oath and to testify, and that it was incumbent on the Government to prove her marriage. They state that, "while silence may be deemed in law an admission, it is never a lie." It appears that there is no evidence to support the proposed adverse finding as to the respondent's moral character. However, we think it is not necessary to decide the issue. Even if we should make the required finding so that, as a matter of law, the respondent is eligible for the discretionary relief provided for by section 19 (c) of the Immigration Act of 1917, as amended, we conclude that the case does not warrant favorable consideration. Primarily section 19 (c) contemplates that, within the permitted limits, discretion should be exercised (In re: R---- B---- B---- (56042/24)). The record establishes that the respondent's claim to citizenship was entirely without foundation. She testified that she refused to be sworn because she knew that she was not a citizen. Likewise, she testified that she concealed the true facts from her attorneys. We think that an alien who believes it proper conduct to advance a capricious claim of citizenship and to deliberately withhold the true facts from the Government, has no claim to the Government's favor. An order of deportation will be entered.

ORDER: It is ordered that the alien be deported to Poland at Government expense on the charge contained in the warrant of arrest.