Admission of aliens previously deported — Agricultural laborer — Section 115.2, title 8, Code of Federal Regulations.
An agricultural laborer admitted under the Act of April 29, 1943, or prior to that time by order of the Attorney General, is not deportable because he had once been deported for illegal entry or absence of required documents and had not obtained permission to reapply for admission, since under such circumstances section 115.2 (c) (2), title 8, Code of Federal Regulations, provides for a waiver of such ground of inadmissibility under the ninth proviso to section 3 of the Immigration Act of February 5, 1917.
CHARGE:
Warrant: Act of 1917 — No permission to reapply after previous deportation.
STATEMENT OF THE CASE: The respondent is a native and citizen of Mexico, 25 years of age, and single. He last entered the United States on April 3, 1943, at Nogales, Ariz., at which time he was admitted as an agricultural laborer until December 31, 1943. He is in possession of an alien agricultural laborer's identification card, which was issued to him prior to his embarkation for the United States. He has maintained his status as an agricultural laborer since his admission.
The respondent had previously entered the United States illegally in 1938 and was made the subject of deportation proceedings 1 day after his entry. As a result of those proceedings his deportation was ordered and he was actually deported in November 1938, on the grounds that he was not in possession of an immigration visa at the time of his entry and that he had entered by land at a place not designated as a port of entry for aliens. The respondent has never formally applied for or received permission to reapply for admission after deportation. The charge contained in the warrant of arrest is based on the foregoing facts.
DISCUSSION: The respondent's admission as an agricultural laborer was authorized under the ninth proviso to section 3 of the Immigration Act of 1917, by order of the Attorney General dated September 11, 1942, notwithstanding his inadmissibility as a contract laborer, or his possible inadmissibility as a person unable to read. This order did not exempt from the excluding provisions of law aliens inadmissible because they had not received permission to reapply for admission after previous deportation. Subsequently, however, section 115.2 of title 8, Code of Federal Regulations, was promulgated, which provides:
Any agricultural worker who applies for admission into the United States under Public Law 45 of April 29, 1943, and the provisions of this part must —
* * * * * * *
(c) establish that he is * * * in all respects admissible under the provisions of the immigration laws except —
* * * * * * *
(2) the provisions of section 3 of the Immigration Act of February 5, 1917, and section 1 of the Act of March 4, 1929, requiring permission of the Attorney General to reapply for admission in the case of any alien previously arrested and deported or excluded and deported solely because of illegal entry or absence of required documents, if such deportation has not occurred on more than one occasion, and such alien establishes that he is otherwise entitled to temporary admission as an agricultural worker under the provisions of this part;
* * * * * * *
Paragraph 12 (a) of Instruction 136, to the Immigration and Naturalization Service, further enlarges upon this exception, as follows:
8 C.F.R. 115.2 (c) (2) authorizes the temporary admission of agricultural workers notwithstanding inadmissibility because previously arrested and deported or excluded and deported solely because of illegal entry or lack of documents, provided such deportation has not occurred on more than one occasion. This exception, which was authorized under the ninth proviso to section 3 of the act of 1917, may be construed to cover other laborers, generally, previously admitted and furnished Form I-100 and who are now maintaining their status.
It is manifest from the foregoing that the temporary admission of alien agricultural laborers inadmissible because of one previous deportation, on grounds of illegal entry or lack of documents, has been authorized by a blanket waiver of that ground of inadmissibility under the ninth proviso to section 3 of the Immigration Act of 1917. That this waiver was intended to cover agricultural laborers previously admitted is indicated by the last sentence in the paragraph quoted from Instruction 136.
The respondent is clearly within the exception and is not deportable on the ground stated in the warrant of arrest.
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 Mexico;
(2) That the respondent was arrested and deported from the United States in November 1938, after hearing, on grounds of illegal entry and lack of documents;
(3) That the respondent has never applied for or received permission to reapply for admission after previous deportation;
(4) That the respondent last entered the United States as an agricultural laborer at Nogales, Ariz., on April 3, 1943, for a period ending December 31, 1943;
(5) That the respondent is in possession of an alien agricultural laborer's identification card, issued to him prior to his embarkation for the United States;
(6) That the respondent has maintained his status as an agricultural worker since his admission.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 115.2 (c) (2), of title 8, of the Code of Federal Regulations, the temporary admission of the respondent has been authorized under the ninth proviso to section 3 of the Immigration Act of 1917, notwithstanding his inadmissibility as a person who had been arrested and deported in pursuance of law and to whom the proper authority had not granted permission to reapply for admission;
(2) That under section 19, of the Immigration Act of February 5, 1917, the respondent is not subject to deportation on the ground that at the time of his entry he was a member of a class excluded by section 1 (a) of the Act of March 4, 1929, being an alien who had been arrested and deported in pursuance of law and to whom the proper authority had not granted permission to reapply for admission.
ORDER: It is ordered that the warrant of arrest be canceled and the proceedings closed.