IN THE MATTER OF G

Seventh Proviso Relief — Section 3 of the Immigration Act of 1917 — Discretion.

Relief under the seventh proviso to section 3 of the Immigration Act of 1917 is not precluded because the alien committed perjury and practiced fraud before a naturalization court, where there are strong mitigating factors present, the alien is of advanced years, has spent almost his entire adult life here, and his conduct except for the fraud practiced before the naturalization court has been exceptionally good; and under such circumstances such relief will be granted, though the withholding of such relief would not work an unjust burden on innocent third parties. (See 2 IN Dec. 593, 712.)

CHARGE:

Warrant: Act of 1924 — No immigration visa.

BEFORE THE BOARD

Discussion: Respondent, a native of Italy, male, 56 years of age last entered the United States at New York City on July 15, 1930, as a United States citizen naturalized January 16, 1926. A decree canceling his naturalization was entered by the United States District Court, Hartford, Conn., June 21, 1929. A warrant for his deportation on the above-stated charge dated November 19, 1937, is outstanding.

This Board on December 18, 1945, granted the alien's motion to reopen in order that he may file formal application for discretionary relief under the provisions of section 19 (c) of the Immigration Act of 1917, as amended.

Pursuant to this order and the subsequent hearing, the Presiding Inspector and the District Director have recommended voluntary departure and preexamination. The Commissioner in an opinion dated February 5, 1947, denied preexamination but granted voluntary departure. The case is now before this Board for review.

Factors Relating to Discretionary Relief: The alien has been gainfully employed as a building superintendent by the same concern for approximately 15 years. He receives a salary of $30 weekly and has assets in the United States amounting to approximately $3,000. He has no relatives residing in the United States and there appears to be no one in this country dependent upon him for support.

The record adequately establishes that the respondent has no criminal record and that he has been a person of good moral character for the preceding 5 years. He is not deportable on any of the grounds mentioned in section 19 (d) of the Immigration Act of 1917, as amended.

The respondent was admitted to citizenship on January 16, 1926, predicated upon a petition filed at Waterbury, Conn., in which he alleged arrival in the United States on June 12, 1911 and continuous residence in the United States and in the State of Connecticut since his original entry. It later developed that he had visited in his native land for a little more than 3 years between December of 1921 and February of 1925. As a result of this fraudulent statement his citizenship was canceled, as indicated above. The alien during the hearing did not admit the commission of perjury in connection with obtaining naturalization.

This case has exceptional merit. The respondent has had a total of 31½ years actual residence in this country. He originally entered the United States during June of 1911. He resided here until December of 1921 when he returned to his native land for a visit. He next entered on February 28, 1925 in possession of a nonquota immigration visa. He returned to Italy on another visit during December of 1928 and last entered as a citizen on July 15, 1929. The respondent is now approaching 60 years of age. He has a satisfactory employment record. Two American citizens have attested as to his good moral character, honesty, and industry. Under the circumstances, therefore, we will withdraw the outstanding order and warrant of deportation issued November 19, 1937 and grant voluntary departure.

Although the alien has not admitted perjury in these proceedings the fact remains that he did perjure himself before a naturalization court. We would grant preexamination and waive the criminal ground of inadmissibility but for the Attorney General's ruling in Matter of C----, 5911300, August 9, 1946, which denies seventh proviso relief to an alien who committed perjury or practiced fraud before a naturalization court. The respondent does not come within the qualified rule approved by the Attorney General in Matter of P----, 1513280, November 8, 1946 as the withholding of relief will not work an unwarranted and unjust burden upon innocent third parties. However, because of extreme hardship involved and other mitigating factors found in the record we will certify the case to the Attorney General for review of our denial of seventh proviso relief.

Order: It is directed that the order and warrant of deportation dated November 10, 19, 1927, respectively, be and the same are hereby withdrawn. It is further 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 6 months 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 directed, That the alien's application for preexamination in conjunction with an exercise of the seventh proviso to section 3 of the Immigration Act of 1917, as amended, be and the same is hereby denied.

As this case involves a question of difficulty the Board hereby certifies it to the Attorney General for review of the denial of seventh proviso relief in accordance with section 90.12, title 8, C.F.R.