IN THE MATTER OF M

Foreign Agents Registration Act of June 8, 1938, as amended April 29, 1942 — Deportability for conviction thereunder — Discretionary relief — Deportability as undesirable alien resident — Act of May 10, 1920.

(1) An alien convicted under the act of June 8, 1938, as amended April 29, 1942, is deportable on that ground, but he is not barred from discretionary relief by reason thereof.

(2) An alien, not otherwise deportable under the act of May 10, 1920, does not become deportable under that act (as one convicted of violation of the act of June 15, 1917), because of conviction under above Foreign Agents Registration Act.

CHARGES:

Warrant: Act of May 10, 1920 — Undesirable alien resident.

Lodged: Act of June 8, 1938, as amended by the act of April 29, 1942. — Convicted for violation of or conspiracy to violate section 2 of said act. Act of 1924. — No immigration visa.

BEFORE THE CENTRAL OFFICE

Discussion: The subject of these proceedings, aged 48, male, native of Rumania, last a naturalized citizen of Canada, last entered the United States on June 1, 1946, following a short visit to Canada. He has resided continuously in the United States since his admission for permanent residence at Detroit, Mich., on March 22, 1941. On the latter date he was admitted upon presentation of a nonquota immigration visa issued under the provisions of section 4 (d) of the Immigration Act of 1924.

The record shows that the respondent was convicted on January 8, 1945, in the United States District Court at Detroit, Mich., upon his plea of nolo contendere, for violation of section 2 (a) of the Foreign Agents Registration Act of June 8, 1938, as amended by the act of April 29, 1942. Following his conviction, he was sentenced to imprisonment for a term of 5 years and was assessed a fine of $3,000. He was granted a commutation of his sentence by the President on May 1, 1945, and was released from imprisonment, after serving about 4 months of his term.

WITH REFERENCE TO THE CHARGE IN THE WARRANT OF ARREST

The act of May 10, 1920, provides for the deportation of aliens who have been found to be undesirable residents of the United States and who have been convicted of certain specified offenses. In the latter class are included:

(2) All aliens who since August 1, 1914, have been or may hereafter be convicted of any violation or conspiracy to violate any of the following acts or parts of acts, the judgment on such conviction having become final, namely:

( a) An act entitled "An act to punish acts of interference with the foreign relations, the neutrality, and the foreign commerce of the United States; to punish espionage, and better to enforce the criminal laws of the United States, and for other purposes," approved June 15, 1917, or the amendment thereof approved May 16, 1918.

The warrant of arrest charges that the respondent is subject to deportation under the act of May 10, 1920, as a member of the undesirable classes, in that, he has been convicted for violation of an act entitled "An act to punish acts of interference with the foreign relations, the neutrality, etc. * * *," approved June 15, 1917 (Violation of title 22, United States Code, see 233).

The respondent has not been convicted of an offense under the act of June 15, 1917, as charged in the warrant of arrest. His conviction for violation of the Foreign Agents Registration Act of 1938, as amended, cannot be held to bring him within the scope of the 1920 deportation statute. Consequently, the warrant charge is not sustained.

WITH REFERENCE TO THE FIRST LODGED CHARGE

Section 2 (a) of the Foreign Agents Registration Act of 1938, as amended (title 22, United States Code, sec. 612 (a)), reads in pertinent part:

(a) No person shall act as an agent of a foreign principal unless he has filed with the Attorney General a true and complete registration statement and supplements thereto * * *.

Section 8 (a) of that act (title 22, United States Code, sec. 618) reads:

( a) Any person who —

(1) Wilfully violates any provision of this subchapter or any regulation thereunder, or

(2) * * * shall, upon conviction thereof, be punished by a fine of not more than $10,000 or by imprisonment for not more than 5 years, or both.

Section 8 (c) reads:

( c) Any alien who shall be convicted of a violation of, or conspiracy to violate, any provision of this subchapter or any regulations thereunder, shall be subject to deportation in the manner provided by sections 19 and 20 of the Immigration Act of February 5, 1917.

The record shows that the subject alien was convicted for violation of section 2 (a) of the Foreign Agents Registration Act of 1938, in that, he did:

Unlawfully, wilfully, knowingly, and feloniously act as an agent of a foreign principal without having filed with the Attorney General of the United States a true and complete registration statement as required by section 2 (a) of the Foreign Agents Registration Act of 1938, as amended by the act of April 29, 1942, in that, he did on March 22, 1941, begin to act in the United States as an agent of a foreign principal, to wit: King Carol II of Rumania, by directing and participating in the activities of the Free Rumania Movement and by continuing to direct and participate in the activities of the said Free Rumania Movemen up to and including October 25, 1942, thereby becoming a person who was required to register as provided in section 2 (a) of the act of Congress aforesaid.

In view of the clear language of section 8 (c) of the Foreign Agents Registration Act, it must be concluded that the respondent is deportable by reason of his conviction for violation of section 2 (a) of that statute.

WITH REFERENCE TO THE DOCUMENTARY CHARGE

The respondent testified that he last entered the United States at Detroit, Mich., on June 1, 1946, after a few days' visit to Canada. He stated that he was readmitted, after inspection by an officer of this Service, upon presentation of a passport and his resident alien's border crossing identification card. This last entry could not be verified. However, Service records establish that a resident alien's border crossing identification card had been issued to the respondent on September 10, 1942, and that its validity was extended to November 1, 1946. It appears, therefore, that at the time of the alien's last entry this document was still valid. Inasmuch as the respondent was in possession of a valid border crossing card at the time of his last arrival and in view of his uncontroverted testimony that he presented this card for admission at that time, there is no sound basis for urging against him the charge that he failed to present an immigration visa. The evidence does not sustain the second lodged charge.

OTHER FACTORS

The respondent was apprehended in alien enemy proceedings in Dearborn, Mich., on October 29, 1942, and was released on interim parole December 15, 1942. He remained in this status during his prosecution for violation of the Foreign Agents Registration Act. Upon his release from imprisonment, interim parole was ordered reinstated by the Attorney General. Alien enemy proceedings were terminated on November 15, 1945.

The respondent is a regularly ordained priest of the Rumanian Orthodox Church. He presently resides at the headquarters of the Episcopate of the Rumanian Orthodox Church at Grass Lake, Mich. and is employed as Parish Priest and ecclesiastical advisor. He receives a salary of $100 per month, plus board and lodging.

The respondent testified that he was married in Rumania in May 1928, but that his wife obtained a divorce from him on the ground of desertion in 1936. He left Rumania in October 1928 for Canada and resided in that country until March 1941, when he entered the United States for permanent residence. He was naturalized in Canada in 1933 or 1934. He has no close family ties in the United States.

DISCRETIONARY RELIEF

The hearing in this case was ordered reopened on January 21, 1947, to allow the respondent to apply for discretionary relief and to enable this Service to conduct whatever investigation might be necessary with respect to that issue. At the subsequent reopened hearing, respondent applied for voluntary departure in lieu of deportation under section 19 (c) (1) of the Immigration Act of 1917 and for the additional privilege of preexamination. He did not apply for suspension of deportation under section 19 (c) (2) of the act of 1917, because he was not eligible for relief under that statute as then constituted.

Subsequent to the date of the hearings in this case, Congress enacted Public Law 863, approved July 1, 1948, amending section 19 (c) (2) of the Immigration Act of 1917. This amendment authorizes suspension of deportation where an alien has resided continuously in the United States for 7 years or more and is residing in the United States upon the effective date of this act. Although the respondent has not applied for the benefits of Public Law 863, consideration will, nevertheless, be given to whether he can qualify under that act.

Before proceeding to the discussion of the various forms of relief, it is necessary to consider whether the respondent may be denied relief from deportation either because section 8 (c) of the Foreign Agents Registration Act makes deportation mandatory or because he falls within section 19 (d) of the Immigration Act of 1917 and is thereby precluded from relief under section 19 (c) of said act.

IS DEPORTATION MANDATORY UNDER SECTION 8 (c) OF THE FOREIGN AGENTS REGISTRATION ACT?

Section 8 (c) of the Foreign Agents Registration Act of 1938, as amended, is restated herewith:

( c) Any alien who shall be convicted of a violation of, or conspiracy to violate, any provision of this subchapter or any regulation thereunder, shall be subject to deportation in the manner provided by sections 19 and 20 of the immigration Act of February 5, 1917.

It is evident that the word "shall" is used in the imperative sense. Upon initial consideration of the statute, it is possible to reach the conclusion that it was intended by section 8 (c) of the Foreign Agents Registration Act to provide for the mandatory removal from the United States of aliens convicted for violation of said act.

We find it helpful at this point to look at an analogous section of law under the Narcotic Act of February 18, 1931, as amended. The pertinent part of that Act reads:

That any alien * * * who * * * shall be convicted * * * shall be taken into custody and deported in the manner provided in sections 19 and 20 of the act of February 5, 1917 * * *.

If anything, the language of the 1931 act is stronger in tone than that of the statute with which we are dealing. The 1931 act requires that narcotic violators "shall be taken into custody and deported," whereas the Foreign Agents Registration Act provides merely that the violators under that act "shall be subject to deportation."

Notwithstanding the forceful language of the 1931 act, it has been held that a recommendation by the court imposing sentence against deportation of an alien convicted of a narcotic violation effectively nullifies the expulsion process. Dang Nam v. Bryan, 74 F. (2d) 379, appeal dismissed, 78 F. (2d) 720 (C.C.A. Hawaii, 1934, 1935). On the administrative side it has been determined that an alien deportable for a narcotic violation under the 1931 act may nevertheless adjust his immigration status through the exercise of discretionary relief, Matter of B----, A-5994491 (1945 B.I.A.).

In the B---- case, since the ground of deportability placed the alien within a class enumerated in section 19 (d) of the 1917 act, the only discretionary relief available was seventh proviso and voluntary departure. In the instant case, as will be shown hereafter, the ground of deportability does not fall within section 19 (d), so that more general relief may be available, if the alien qualifies therefor.

The two instances cited show that deportation is not compulsory under the 1931 act. Since the language in section 8 (c) of the Foreign Agents Registration Act is less mandatory than that of the 1931 act, then we can permissibly conclude that relief from deportation is not foreclosed by the terms of section 8 (c).

IS SECTION 19 (d) OF THE IMMIGRATION ACT OF 1917 APPLICABLE TO THIS CASE?

The next question which must be decided is whether the respondent falls within section 19 (d) of the Immigration Act of 1917 and is thereby precluded from relief under section 19 (c) of said act (although he might in such instances be eligible for seventh proviso relief).

Section 19 (c) of the Immigration Act of 1917, as amended, authorizes the Attorney General to grant voluntary departure or suspension of deportation to an alien "other than one to whom subsection (d) is applicable." Section 19 (d) of that act states:

( d) The provisions of subsection (c) shall not be applicable in the case of any alien who is deportable under (1) the act of October 16, 1918 * * *, entitled "An act to exclude and expel from the United States aliens who are members of the anarchist and similar classes", as amended; (2) the act of May 26, 1922, entitled "An act to amend the act entitled `An act to prohibit the importation and use of opium for other than medicinal purposes.' approved February 9, 1909, as amended" * * *; (3) the act of February 18, 1931, entitled "An act to provide for the deportation of aliens convicted and sentenced for violation of any law regulating traffic in narcotics", as amended * * *; (4) any of the provisions of so much of subsection (a) of this section as related to criminals, prostitutes, procurers, or other immoral persons, the mentally and physically deficient, anarchists, and similar classes; or (5) subsection (b) of this section (i.e., aliens convicted of certain violations of the Alien Registration Act of 1940) * * *.

The evidence of record clearly indicates respondent does not fall within any of the classes of persons enumerated in section 19 (d) of the Immigration Act of 1917. While subsection (4) of 19 (d) refers to "criminals," this phraseology is related back to aliens who are deportable under section 19 (a) of the 1917 act by reason of conviction or sentence for crimes involving moral turpitude. As has been shown, the subject alien is deportable solely by reason of his conviction under the act of 1938, which is not included in section 19 (d) of the Immigration Act of 1917.

The conclusion that an alien convicted for violation of the Foreign Agents Registration Act does not fall within the provisions of section 19 (d) of the Immigration Act of 1917 is strengthened by the consideration that the latter statute was enacted into law on June 28, 1940, as an amendment to the 1917 act. Congress was then aware of the 1938 act and, if it had been the congressional intention to withhold 19 (c) relief from aliens convicted for violation of the Foreign Agents Registration Act, undoubtedly this class would have been specifically enumerated along with the others mentioned in section 19 (d). Again, the 1938 act was amended in 1942, 2 years after section 19 (d) was enacted into law. This gave still another opportunity to the Congress, if it had so desired, to bar aliens of the respondent's class from discretionary relief. No such action has been taken by the legislature and, consequently, it must be held that the respondent is not precluded by any provision of section 19 (d) from the relief authorized by section 19 (c) of the 1917 act.

FORMS OF RELIEF AVAILABLE TO THE RESPONDENT

The foregoing discussion has shown (1) that deportation of the respondent is not mandatory under section 8 (c) of the Foreign Agents Registration Act, hence, that he is not precluded from the relief from deportation generally, and (2) that he does not fall within section 19 (d) of the Immigration Act of 1917, and, consequently, it is not barred from relief under section 19 (c) of said act.

It would appear that the following forms of relief are available to the respondent:

(1) Suspension of deportation.

(2) Voluntary departure.

(3) Seventh proviso, where required.

(4) Preexamination.

No difficulty would be presented if the respondent were found to be qualified for suspension of deportation under Public Law 863, approved July 1, 1948. In that event, the respondent could adjust his immigration status by remaining in the United States, conditioned upon favorable action being taken on submission of his case to Congress. Again, if it were determined that voluntary departure was the appropriate relief to be granted in this case, no problem would be presented by requiring the alien to depart from the United States in lieu of deportation.

However, the grant of voluntary departure is intended to benefit an alien in that he would be permitted to return to the United States without the disability of prior deportation. Following his voluntary departure an alien would ordinarily be allowed to reenter the United States immediately, if he were in possession of an immigration visa, border-crossing card, or other appropriate document. But where it appears that such alien would, upon reentry, be inadmissible to the United States, then discretion to readmit him under the seventh proviso to section 3 of the Immigration Act of 1917 may be exercised in advance, provided the alien has an unrelinquished domicile in the United States in excess of seven consecutive years, to which he is returning after a temporary absence, Matter of B---- V-292720 (Approved by the Attorney General, Aug. 5, 1942).

It is pertinent to consider whether the seventh proviso may be required in the instant case.

IS SEVENTH PROVISO REQUIRED?

The respondent's conviction under the act of June 8, 1938, as amended, does not specifically place him within the classes of excludable aliens set forth in section 3 of the Immigration Act of 1917. Yet, by the terms of section 8 (c) of the Foreign Agents Registration Act, the respondent's conviction thereunder renders him deportable at all times. It would be futile, then, to authorize his voluntary departure and to permit him to reenter the United States with proper documents, since by the act of returning to the United States he would once again be subject to the deportation process.

Here again an analogy can be drawn to cases arising under the 1931 Narcotic Act. That statute, as we have noted, is similar in scope to section 8 (c) of the Foreign Agents Registration Act of 1938, in that it provides that aliens who have been convicted of certain narcotic offenses shall be taken into custody and deported in the manner provided by sections 19 and 20 of the Immigration Act of 1917. Section 3 of the Immigration Act of 1917 does not specifically call for the exclusions of aliens who have been convicted for narcotic offenses under the act of 1931. Nevertheless, it has been held in an exclusion proceeding that this class of aliens is inadmissible to the United States. Matter of V----, 56096/451 (1942). The rationale employed in the V---- case is based upon a rule of reason, namely, that it would be "circuitous, futile, and unfair to hold an alien admissible, and admit him and promptly undertake his deportation." This conclusion is logical and, as pointed out by the Board of Immigration Appeals, is consistent with the general history and framework of the immigration laws.

It is believed that the decision reached in the V---- case as to narcotic violators is sound and that the same concept is equally applicable to the cases of persons deportable under section 8 (c) of the Foreign Agents Registration Act of 1938. Aliens of the latter class although not specifically excluded by statute must logically be considered inadmissible to the United States.

Having determined that the respondent would be inadmissible to the United States upon reentry, we reach the conclusion that exercise of the seventh proviso is required to enable him to return to this country following his voluntary departure. Since the seventh proviso to section 3 of the Immigration Act of 1917 has been exercised in the case of narcotic aliens deportable under the 1931 act ( Matter of B----, supra; Matter of W---- C---- G----, A-4681644 (1947)) and in the case of subversive aliens deportable under the 1918 act ( Matter of N----, A-5153562 (1946 A.G.)), we can perceive no objection to the utilization of this form of relief in a case involving a charge under the 1938 act.

PREEXAMINATION

On the occasion of his last entry on June 1, 1946, the respondent was inadmissible to the United States under the doctrine enunciated in the V---- case, heretofore considered. By reason of the fact that he was excludable at that time, his entry and subsequent residence in the United States was unlawful. The respondent does not, therefore, have a lawful residence to which he might return, if he should hereafter seek entry into the United States. Consequently, he would need an immigration visa with which to return to the United States following his voluntary departure. Such a document could be obtained in Canada under the preexamination procedure. The regulations pertaining to preexamination (8 C.F.R. 142) indicate that the respondent meets the technical eligibility requirements thereof.

It remains to be determined whether the respondent merits discretionary relief of any kind. A decision as to this issue rests, primarily, upon a consideration of the respondent's moral character and conduct during the period of his residence in the United States.

RESPONDENTS CHARACTER AND CONDUCT

There was introduced into evidence as exhibit 9, a report of a character investigation conducted by an officer of this Service during April and May 1947. Most of the information contained in this report is derogatory to the respondent. Respondent's attorney objected to the use in evidence of exhibit 9 for the following reasons:

(1) The personal bias against the respondent on the part of several of the persons interviewed;

(2) The comments of the investigating officer with respect to the credibility of the witnesses; and

(3) Counsel's lack of opportunity to cross-examine the persons interviewed.

Counsel's objection was sustained as to his right to cross-examine the various persons who, at the time of the interview, had made accusations against the respondent.

Three of the persons interviewed by the investigating officer, Reverend P---- N----, N---- S---- and J---- F---- were called as witnesses for the Government and respondent's attorney was afforded an opportunity to place them under cross-examination. These witnesses accused the respondent of sexual immorality and of irregularities in the administration of ecclesiastical funds under the respondent's control.

An analysis of the testimony shows that these three witnesses have relied largely on hearsay information, and that they lack personal knowledge or competent proof of the alien's alleged misconduct. Under the circumstances, substantial weight cannot be given to the accusations which they have made against the respondent.

In view of the counsel's objection, and as a matter of fair administrative practice, the derogatory statements made during the course of investigation by persons who were not subsequently called for cross-examination should be disregarded.

Counsel presented 12 witnesses in behalf of the respondent, most of whom have known the alien since 1941. These witnesses testified that the respondent bears a good reputation and has conducted himself as a person of good moral character. None of these witnesses had any knowledge of sexual misbehavior or of illegal disbursement of moneys on the part of the respondent.

The testimony of six of the respondent's witnesses was to the effect that they contributed to the church fund, which the respondent had been accused of misappropriating, and that they were satisfied with his administration of the money. Two other witnesses were women with whom the respondent had been accused of being intimate. They denied that they engaged in any improper relationship with the respondent.

Exhibit 8 is a letter, dated May 2, 1947, issued by the President and Secretary of the Council of the Rumanian Orthodox Episcopate of America at Grass Lake, Mich., certifying that the Very Reverend Father G---- M---- has performed his duties faithfully and zealously; that he is capable and reliable; that his services are almost indispensable; that he has been honest in all his dealings; and that despite malicious rumors circulated against him, no disciplinary proceedings have been instituted against him by either the Bishop or any other forum of the church.

The Presiding Inspector has noted that there exists a political and religious achism in the Rumanian language group in the Detroit area, and that the respondent is prominent in one faction. The Presiding Inspector also found that personal bias and bitter factional feeling had been projected into the testimony of most of the witnesses who appeared in the case. Upon evaluation of all the foregoing material, it is believed that a preponderance of the evidence favors the respondent.

Still to be considered, however, in appraising the alien's conduct is his criminal record. The indictment under which he was convicted for violation of the Foreign Agents Registration Act of 1938 shows that he acted as an agent for the former King Carol II of Rumania, by directing and participating in the activities of the Free Rumania Movement from March 22, 1941, to October 23, 1942.

The aims and purposes of the Free Rumania Movement are not a pertinent subject for inquiry in this proceeding. What is pertinent is that the respondent was admitted to the United States as a nonquota immigrant under section 4 (d) of the Immigration Act of 1924, "solely for the purpose of carrying on the vocation of Minister." Yet, from the very day of his admission, the respondent engaged in political activities in violation of the criminal laws of the United States. After the United States entered World War II, the respondent was a further cause of concern to this country and, as has been noted, it was found necessary to apprehend him in alien enemy proceedings.

By reason of these considerations, the respondent's conviction under the Foreign Agents Registration Act must be viewed as a serious blemish on his conduct. This conclusion is strengthened when we consider the severe penalty meted out by the court. There is no doubt that the sentence imposed by the court, 5 years' imprisonment and a fine of $3,000 reflects the gravity with which the court regarded the alien's transgression against the laws of this government. That the sentence was subsequently commuted in no way diminishes the gravity of his offense.

CONCLUSIONS AS TO THE RELIEF ISSUE

To go back, it has been found that there are two ways by which the respondent can adjust his immigration status: (1) Through voluntary departure in conjunction with the advance exercise of the seventh proviso, or (2) through suspension of deportation under Public Law 863, approved July 1, 1948.

There are persuasive reasons why the discretion vested in the Attorney General under the seventh proviso should not be favorably exercised in this case. By reason of his conviction in 1945 for criminal acts committed in 1942 the alien cannot show an unblemished record for the past 7 years. Again, seventh proviso relief is seldom exercised in criminal cases unless the alien has close family ties in the United States or has maintained a fairly long residence in this country. In the much less serious case of an alien who was illiterate, this being the only ground for his inadmissibility, the Attorney General refused to exercise the seventh proviso since the alien had no family ties in the United States and had resided in this country for only 9 years, Matter of B----, A-4631537 (1946).

The fact that the subject alien cannot show an unblemished record for the past 7 years, that he has no close family ties in the United States, and that the period of his residence is relatively short lead to the conclusion that seventh proviso relief should be denied.

Suspension of deportation constitutes a unique form of relief which should be granted not solely because an alien is technically eligible under the requirements of the statute, but upon the more important consideration that his general background and behavior leave no room for doubt as to his fitness for this high privilege. It is conceded that a less strict view might be justified in the case of an alien who has dependent family ties. While we have found in the instant proceeding that a preponderance of the character evidence appears to favor the respondent, the issue is by no means clear cut. Too, the respondent barely meets the residence requirement under Public Law 863, since on July 1, 1948, he had residences in the United States totaling just 3 months more than the required 7 years. When these facts are coupled with his criminal conviction in 1945, the conclusion is reached that he does not merit suspension of deportation. The determination having been made that the respondent is inadmissible to the United States by reason of his conviction under the Foreign Agents Registration Act of 1938 as amended, the privilege of voluntary departure, in itself, would be of no particular benefit to him, save that it would entitle him to depart to a country of his own choice. It is not known whether Canada will accept him since he may have been expatriated by reason of his absence from that country for a 7-year period. The respondent testified that he fears persecution if he returns to Rumania, since he allegedly has been opposed to communism. Upon consideration of the entire record, it is felt that the interests of the United States will best be served by entering an order of deportation in this case, however, the respondent should be allowed to depart voluntarily to any country of his choice under the terms of the warrant of deportation.

COUNSEL'S EXCEPTIONS

The arguments made by counsel (1) that the crime for which the respondent was convicted does not involve moral turpitude, and (2) that the respondent actually received a sentence to imprisonment of less than 1 year, are not material to the issue of his deportability. Section 8 (c) of the Foreign Agents Registration Act requires an alien's deportation where he has been convicted of violation of that act, without reference to moral turpitude or length of sentence.

As to counsel's request for relief, this matter has been fully covered in the foregoing discussion.

Recommendation: It is recommended that the alien be deported to Canada if that country will accept him; otherwise to Rumania, at Government expense, on the following charge:

The act of June 8, 1938, as amended by the act of April 29, 1942, in that, he is an alien who has been convicted of a violation of, or conspiracy to violate a provision of said act or regulations made thereunder, to wit: Section 2 of said act.

It is further recommended that the alien be permitted to depart from the United States, or ship foreign one way, without expense to the Government, to any country of his choice, within 90 days, conditioned upon arrangements being made with the local immigration office for verification of departure, such departure to be considered a satisfactory compliance with the terms of the warrant.

It is further recommended that the alien's application for voluntary departure and preexamination be denied.

So ordered.