IN THE MATTER OF L

Seventh Proviso relief — Section 3 of the Immigration Act of February 5, 1917, as amended — Substitution of the discretion thereunder for the documents required by section 13 of the Immigration Act of 1924 — Section 25 of the Immigration Act of 1924.

An alien, inadmissible because of his lack of the documentary requirement under section 13 (a) of the Immigration Act of 1924, cannot have such documentary requirement waived by use of the discretion contained in the seventh proviso to section 3 of the act of February 5, 1917, as amended.

BEFORE THE CENTRAL OFFICE (August 31, 1951)

Discussion: The question presented is whether an alien who is returning to an unrelinquished domicile of 7 years in the United States, but who is not returning to a lawful residence, may be admitted under the 7th proviso to section 3 of the Immigration Act of 1917 (8 U.S.C. 136 (p)) without the immigration visa or reentry permit required by sections 10 and 13 of the Immigration Act of 1924 (8 U.S.C. 210 and 213 (a) (b)). Counsel contends that the Attorney General has this power. We hold the Attorney General does not. In the discussion that follows, the 7th proviso to section 3 of the Immigration Act of 1917 will be referred to as the "7th proviso."

The alien concerned is a 53-year-old married male, a native and citizen of Greece, who is now residing in Greece and who desires to return to the United States to resume permanent residence. His application for a nonquota visa as a returning resident alien under section 4 (b) of the Immigration Act of 1924 has been disapproved by an American consul abroad.

The alien was lawfully admitted to the United States at New York, N.Y., for permanent residence on July 26, 1915. The entry has been verified. He alleges he departed from the United States about February or March 1921, and that he returned about November 1922, as a member of the crew of the S.S. King Alexander and deserted. This entry could not be verified. In December 1925, he again departed and reentered with a reentry permit on May 7, 1926. The entry was verified. The reentry permit was based upon his original lawful entry for permanent residence in 1915. In securing this permit his absence from 1921 to 1922 was concealed. He again was absent from the United States from May 1931 to April 25, 1932, when he entered upon the presentation of another reentry permit obtained in the manner outlined above. This entry was verified. He last departed from the United States on August 27, 1938. At the time of departure, he was not in possession of a reentry permit. He alleges he left suddenly to be with his wife in Greece who was reportedly, critically ill.

On July 13, 1939, the Board of Review entered an order finding the alien was not entitled to the reentry permits mentioned above, which he obtained on the basis of an entry in 1915, in that there was an absence of record of lawful admission in connection with his alleged entry in November 1922. In effect, therefore, the decision held that the alien was not entitled to a nonquota visa under section 4 (b) of the Immigration Act of 1924 since he was not a lawful resident of the United States returning from a temporary absence abroad.

This Service, by letter dated June 25, 1951, informed the Department of State that "an examination of the files of this Service indicates that he (the alien) has maintained a (domicile) in this country since his original entry in 1915." This aspect of the problem need not therefore be given fuller discussion.

Affidavit sworn to by the alien on April 17, 1938, before a vice counsul of the United States at Athens, Greece, reveals that the alien resided in the United States from 1915 to about March 1921 when he returned on a temporary visit to Greece as a passenger; that in May 1921 he married in Greece; that soon after his marriage he entered the Greek Army from which he was discharged about October 1922; that he returned to the United States in November 1922 as a crew member; that a party of crewmen went ashore from the vessel to purchase supplies; and that he went with them and did not rejoin the vessel. The affidavit reveals that the alien journeyed to the United States in 1922 as a seaman, rather than as a passenger, because he had very little money at the time. The affidavit contains the allegation that the affiant never willfully concealed the fact of his journey to Greece in 1921 and his return to the United States in 1922, in obtaining a reentry permit.

The record contains a copy of a declaration of intention subscribed and sworn to by the alien in the United States on January 25, 1921.

Six affidavits of recent date reveal the affiants have known the alien from about 1919; that his absences from the United States were short; that he was regularly employed in the United States; and that he is a person of good moral character.

The record establishes, therefore, that the alien was admitted to the United States for permanent residence in 1915; that he never relinquished his domicile in the United States; that he departed for Greece about 1921 for a temporary visit; that he alleges he returned to the United States about November 1922 as a deserting seaman; that he was in the United States about 1922; that he thereafter departed and reentered the United States on two occasions; and that on each of these occasions, he was in possession of a reentry permit obtained by concealment of his unlawful reentry in 1922.

These are the facts upon which the Department of State found the alien was not lawfully admitted to the United States in connection with his last entry on April 25, 1932, and that he was therefore not entitled to a nonquota immigration visa under section 4 (b) of the Immigration Act of 1924, as a lawfully admitted resident alien returning to the United States from a temporary visit abroad.

Since the alien desires to enter the United States for permanent residence, he must be regarded as an immigrant. Since he is not a nonquota immigrant, he must be considered a quota immigrant (sec. 5 of the Immigration Act of 1924; 8 U.S.C. 205).

No immigrant, with certain exceptions which do not apply in the instant case, shall be admitted to the United States unless he has an unexpired immigration visa or other permit to reenter the United States issued in accordance with the laws and regulations (sec. 13 (a) of the Immigration Act of 1924, 8 U.S.C. 213 (a); sec. 10 of the Immigration Act of 1924, 8 U.S.C. 210). The alien is not in possession of such an unexpired immigration visa or permit to enter the United States.

Section 13 (b) of the Immigration Act of 1924 provides that an alien who has been legally admitted to the United States and who departs therefrom temporarily may be admitted to the United States without being required to obtain an immigration visa. Since the alien is not an immigrant who has been legally admitted to the United States, in connection with his last entry which controls, this discretionary action which is exercised jointly by the Department of State and the Attorney General may not be exercised herein. ( Matter of G----, 1 IN Dec. 321 (1942); U.S. ex rel. Volpe v. Smith, 289 U.S. 422 (1933)).

Upon the record therefore, it appears that the alien requires a quota immigration visa to enter the United States for permanent residence.

Counsel contends that the Attorney General, pursuant to discretion vested in him by the 7th proviso, may permit the alien in question to return to the United States as an alien returning after a temporary absence to an unrelinquished United States domicile of 7 consecutive years, despite his lack of the immigration visa required by law of quota immigrants.

In support of this view counsel engages in a discussion of the history of the law and cites several court decisions and administrative decisions.

We find nothing in counsel's able review of legislative history which is a clear indication that Congress intended to grant administrative officers power under the Immigration Act of 1917, to admit aliens returning to an unrelinquished domicile of 7 consecutive years, despite their inadmissibility under laws which may be passed in the future.

Counsel cites U.S. ex rel. Polymeris v. Trudell, 284 U.S. 279 (1932) affirming 49 Fed. (2d) 730 (C.C.A. 2, 1931), in support of his contention. He has quoted the language of the circuit court which would indicate that the proper administrative official has the power under the 7th proviso to admit in his discretion, aliens returning to an unrelinquished United States domicile of 7 consecutive years. The language is as follows:

It follows that these aliens were properly excluded under Section 13 (a) of the Immigration Act of 1924 ( 8 U.S.C.A. 213 (a)) since the Secretary of Labor did not admit them in his discretion under 8 U.S.C.A., section 138 (p), and neither presented an unexpired valid immigration visa or an unexpired valid permit to reenter in accordance with the regulations promulgated under section 13(b) of that act.

We note from the opinion of the circuit court that although in passing, it was stated that the proper administrative official had the discretionary power to admit under the 7th proviso, an alien without an immigration visa, that the court stated the issue before it as follows:

* * * The issue now is whether they could enter of right with no return permits and no immigration visas.

It is clear therefore, that the question of discretionary power was not a matter for adjudication before the court. Its statements concerning discretionary relief under the 7th proviso must therefore be viewed in this light.

We note further, that Mr. Justice Holmes in delivering the opinion of the Supreme Court of the United States repeated the first-quoted paragraph of the circuit court, but omitted in the quotation, any reference to the words "under 8 U.S.C. 138 (p)." Since the section of law in which the 7th proviso is contained was omitted by the Supreme Court, it would appear that the Supreme Court was not in agreement with the circuit court concerning the power of the proper administrative official to exercise 7th proviso relief in that case, involving immigrants not in possession of immigration visas or reentry permits. The reference to discretionary action contained in the quotation by the Supreme Court might well be a reference to the discretionary power of the proper administrative official to admit returning resident aliens who were lawfully admitted and who were returning from a temporary visit abroad, under the authority contained in section 13 (b) of the Immigration Act of 1924. Be this as it may, we find nothing in the action or language of the Supreme Court in this decision which would support counsel's contention. The essence of the decision by the Supreme Court is contained in the following language:

By section 13 of the act (8 U.S.C.A., sec. 213) and the regulations under it, as remarked by the Court below, a returning alien cannot enter unless he has either an immigration visa or a return permit. The relators must show not only that they ought to be admitted, but that the United States, by the only voice authorized to express its will has said so. Obviously it has not done so, and therefore the judgment must be affirmed. [Italics added.]

It is obvious from a reference to this language that there is no clear indication by the court that an immigrant who desires to enter the United States may be admitted without immigration documents, under the 7th proviso if he is returning to an unrelinquished domicile of 7 consecutive years.

Counsel cites Weedin v. Ung Sue Chu, 64 F. (2d) 953 (C.C.A. 9, 1933), in support of his contention.

In this case the circuit court of appeals held that a returning Chinese merchant was required to present a passport to be readmitted. The Polymeris case was quoted by the court and the following quotation from that case was used. "The relators must show not only that they ought to be admitted, but that the United States by the only voice authorized to express its will has said so."

A careful review of this case reveals there was no discussion in the case concerning the discretionary power of the proper administrative official to admit the alien. The sole question was whether provisions of the Immigration Act of 1924 requiring immigrants to present visas was in conflict with certain treaty rights. The court held there was no conflict between the treaty and the law requiring the production of the visa in the case of a treaty merchant. The court then cited the Polymeris case as authority for their decision to bar the aliens from entry since the aliens were not in possession of the proper documents. It is therefore apparent that the court, in construing the Polymeris case, felt it stood for the proposition that an immigrant not in possessionn of an immigration visa or reentry permit was inadmissible to the United States. We therefore, do not find the second case cited by counsel is authority for his position.

The last court cited by counsel is Rash v. Zurbrick, 75 F. (2d) 934 (C.C.A. 6, 1935). There, the court in discussing the claim of right of entry to return to an unrelinquished domicile of 7 consecutive years, made the following statements:

Assuming that in the exercise of this discretion, the Secretary may lawfully permit an alien to reenter the country without a permit or an immigration visa or without a showing that he had previously been lawfully admitted, we cannot say from the facts alleged in the bill, that the hearing given the appellant was so unfair or that the Secretary's refusal to admit him was such a manifest abuse of discretion as to confer upon us the power to enjoin the enforcement of the order of exclusion. [Italics added.]

It is therefore self-evident that the court was not passing on the discretionary power to admit under the 7th proviso, but was assuming such a power existed for the sake of argument, and was very careful to show that his statement was an assumption by his use of the word "assuming."

Other cases cited by counsel concern administrative decisions. These cases concern the exercise of the discretionary action under the 7th proviso to section 3 of the Immigration Act of 1917, to remove certain grounds of inadmissibility created by the act of 1917, and in one case with a ground of exclusion created by the Act of February 18, 1931, relating to traffic in narcotics (an act which the decision mentioned by counsel points out has been judicially determined to be virtually interdependent with the act of 1917).

With the proposition that the 7th proviso may be exercised to remove a ground of inadmissibility created by the act of 1917 or Acts amendatory of the Immigration Act of 1917, we have no quarrel. The administrative decisions cited by counsel need therefore not be further discussed.

We believe a court decision more to the point is contained in Madokoro v. Del Gwercio, 160 F. (2d) 164 (C.C.A. 9, 1947), rehearing denied April 4, 1947, certiorari denied, October 13, 1947; 68 S.Ct. 68; 332 U.S. 764.

In this case the alien, a citizen of Japan, a person ineligible to citizenship under the Immigration Act of 1924, entered the United States in 1916 as an alien seaman and remained in the United States continuously, with the exception of certain temporary visits to Mexico in 1926, under authority of a permit issued by the Government of the United States. After the expiration of the permit, the appellant, on December 26, 1926, temporarily crossed into Mexico, returned on the same day, and was admitted to the United States. The Government contended that at the time the alien reentered without a permit he was inadmissible under the Immigration Act of 1924 as an alien ineligible to citizenship, and that therefore, he was deportable.

The alien contended that he was entitled to enter the United States under the authority contained in the 7th proviso as an alien returning after a temporary absence, to an unreliquished United States domicile of 7 consecutive years.

The court stated that section 25 of the Immigration Act of May 26, 1924, provided with reference to all the prior immigration laws, that "* * * an alien, although admissible under the provisions of the immigration laws other than this act, shall not be admitted to the United States if he is excluded by any provisions of this act." The court therefore held, that the Immigration Act of 1924 repealed section 3 of the Immigration Act of 1917 (relating to the 7th proviso insofar as it applied to aliens ineligible to citizenship, and that aliens to whom the regulations relating to relief under the 7th proviso [referred to by the court as rule 12 (of the immigration regulations of 1925)] are those "otherwise admissible" under sections 10 and 13 of the Immigration Act of 1924 [referred to by the court as rule 3 (of the immigration regulations of 1925)] which required an immigrant to present an immigration visa or reentry permit to enter the United States, with the exception of aliens who have been previously lawfully admitted to the United States and who are returning from a temporary visit of not more than six months to adjacent and contiguous territory.

It is clear from section 25 of the Immigration Act of 1924 and the opinion of the court that an alien inadmissible under the Immigration Act of 1924 may not be admitted to the United States under the discretion contained in the 7th proviso. This consistently has been the view of this Service.

Therefore, since the alien's sole ground of excludability arises from his inability to secure immigration documents under the Immigration Act of 1924, his application for relief under the 7th proviso to section 3 of the Immigration Act of 1917, will be denied.

Order: It is ordered that the alien's application for relief under the 7th proviso to section 3 of the Immigration Act of 1917, be denied.