Interim Decision 4t1689
MAI 'EtC or Pimmyrnr.
In Deportation Proceedings
A-14997703
Decided by Board January 80, 1967
Notwithstanding statutory eligibility for voluntary departure, in the absence of
other annealing factors such relief is denied, as a matter of discretion, in the
case of respondent, a 24-year-old single Male, whose first anti only entry into
the United States was made as a stowaway, in knowing and intentional violation of the immigration laws ; who has been here only abotit one year ; and who
has no close family ties in this country.
CHARGE:
Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1) ]—Excludable
at entry—Stowaway.
ON BEHALF OF RESPONDENT: ON BEHALF or SERVICE:
Peter 3. Needham, Esquire R. A. Vielhaber
53 State Street Appellate Trial Attorney
Boston, Massachusetts 02109
(Brief filed)
Respondent appeals from the decision of the special inquiry officer
finding' im depoi4table as charged and denying voluntary departure in
the exercise of discretion.
Respondent is a 24-year-old single male alien, a native and citizen of
Portugal, who entered the Tjnitecl States at Baltimore, Maryland on or
about October 13, 1965 as a stowaway on 'a ship which he had boarded
surreptitiously in Lisbon, Portugal. The record shows that he knew
the ship was coming to the United States and stowed away on it for
that reason. Deportability as charged in the order to show cause was
conceded at the hearing.
It has been established that respondent worked as a fisherman for
seven years and thereafter served in the Portuguese navy, receiving
his honorable discharge therefrom on August 3, 1965. Respondent
testified that for some time it had been his hope to come to the United
States so that he could obtain employment and remain hare (Tr. pp.
12,13). He learned of the particular ship he boarded by reading the
maritime papers to see which ships were coming to the United States.
He hoarded the ship late on the day it sailed, hid himself below until
it sailed, and then transferred to a lifeboat. He remained hidden in
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the lifeboat during the entire passage from Portugal to the United
States, using the food and supplies with which the lifeboat was normally stocked. He left the ship very early in the morning after its
arrival in the United States and simply walked out unobserved. He
then travelled to Newark, New Jersey where he had relatives and apparently began to work ashore immediately after his arrival (Tr. pp.
18-15) .
The record shows that respondent has no criminal record either in
the United States or in Portugal and there is nothing to indicate that
he has ever engaged in subversive activities. He has testified that he
has sufficient passage money to effect his departure from the United
States if permitted to leave voluntarily, and that he would be willing
and able to depart within the time set by the Government. Although
the majority of his family including his mother, father and sisters
are in Portugal, he has some cousins and friends in the United States
and it is indiVated 'that he has a fiancee, a Miss Susan Gomez, who lives
in New Bedford, Massachusetts, and whom he hopes to marry in the
near future.
Respondent was apprehended at a bus station in Philadelphia. When
he was first spoken to by an officer of the Immigration Service there,
he did not tell the officer that he was Portuguese but said instead that
he was Spanish and testified that his reason for this was the following: "I thought since there are so many Spanish speaking and
Puerto Ricans here, he would let me go." (Tr. la, 15). He apparently
also advised the immigrant inspector that he had immigrant papers
in another bag on another' us, as part of his effort "to see if they would
let me go." (Tr. p. 16).
The special inquiry officer rendered an oral decision at the hearing,
finding respondent deportable, and in effect finding him statutorily
eligible for voluntary departure. He summarized the factors in the
case which he took into consideration in deciding whether there should
be a favorable exercise of discretion. The record shows there are few,
if any, equities respondent can claim. He is single, and his parents and
sisters all live in Portugal. His closest relatives in the United States
are cousins. His first, and only entry into the United States, was made
as a stowaway, in knowing and intentional violation of the immigration laws, and as part of a design to live and work here without
complying with the immigration laws. He was in the United States
for barely a year when he was apprehended. He lied to the apprehending immigration officers, both about his nationality and his immigrant status, in an effort to continue his illegal stay here. Respondent's
claim that he is engaged to be married to a native ,born citizen of the
United States was characterized by the special inquiry officer as a
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neutral factor, weighing neither for nor against him. In respondent's
favor are his lack of a criminal record, absence of subversive political
activities, availability of funds to effect his own departure, honorable
discharge after completion of Portuguese naval service and seven years
of work as a fisherman. Balancing these factors, the special inquiry
officer concluded that the favorable were not strong enough to overcome the unfavorable, and denied voluntary departure in the exercise
of discretion.
On appeal, counsel argues that inasmuch a s respondent established
eligibility for voluntary departure, and in view of his past record and
background, the denial of voluntary departure was arbitrary, unreasonable and a clear failure of the special inquiry officer to exercise any
discretion in the matter.
Counsel's argument notwithstanding, the showing of good moral
character, without more, does not justify a grant of voluntary departure. Such a showing is a preliminary factor, going to the establishment of statutory eligibility, which must be satisfied before discretion
can be exercised. The granting of discretionary relief is an act of
administrative grace, and to warrant it there must be a showing of
equities over and above the factors going into statutory eligibility.
We do not find them here.
Counsel contends in effect that the stowing away was the impulsive
act of a young boy. The record shows that it was not a spur of the
moment 'seeking of adventure . by an adolescent; it was done by a
23-year-old, who testified that ever since he had a little knowledge of
life it had been his hope to come to the United States and obtain
employment and remain here, and who knew of the ship's destination
before boarding it because he had read it in the maritime papers (Tr.
pp. 12-13). That respondent comes of a good family and is the son
of a member of the Portuguese merchant marine who allegedly comes
to the United States frequently as a crewman hardly lessens the nature
of his offense (stowing away, it may be noted, is a criminal offense
defined by 18 U.S.C. 2199, punishable by a fine of up • to $1,000 or
imprisonment of up to a year, or both). Rather, it makes it all the more
likely that respondent knew he would be violating the immigration
laws of this country by stowing away and entering the United States
surreptitiously.
That this is respondent's first violation of the immigration laws
likewise does not weigh heavily in his favor, since this is his first and
Only coming to the United States, and every facet of it, from the
moment of his entry into the territorial limits of the United States,
has been in violation of our laws. When discovered by Immigration
Service officers in a bus station in Philadelphia, he admittedly lied
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to them about his nationality and immigration status in an effort to
prolong his illegal stay here.
Stowaways are, and have been for many years, treated separately
in our immigration laws, because of the problems they create in the
enforcement of those laws. They were first made excludable by the
Act of 1917, with the possibility that they might be admitted in the
discretion of the Attorney General if they were otherwise admissible
(e.g., had valid visas and/or other necessary documentation). In 1940,
stowing away was made a criminal offense. In 1952, upon the enactment of the Immigration and Nationality Act, excludability was made
absolute for alien stowaways caught before they had made an entry,
with no discretion in the Attorney General to admit them, whether
they were otherwise admissible or not. They are not entitled to be
landed in the United States other than temporarily for medical treatment or in connection with arrangements for their departure or removal from the United States, and are not entitled to any sort of
hearing to determine whether they are eligible to enter the United
States (Section 278(d) of the Immigration and Nationality Act). It
has, as a corollary, become a matter of policy not to grant voluntary departure to.an alien who enters the -United States as a stowaway unless
there are• appealing factors in his case over and above statutory eligibility (Cf. Matter of P—, 5 I. & N. Dec. 307) .
It is within the discretion of the special inquiry officer to determine
whether such factors exist. Frequently used as guidelines are the
length of time the alien has been in the United States,•whether he has
elms family ties here, and whether there are any exceptional factors
in his case which would warrant special consideration. Here, after rendition of his decision, the special inquiry officer declared:
•I irfoh to state that under. section 244(e) of the Immigration and Nationality
Act voluntary departure is discretionary even though the respondent establishes
that •e has been a person of good moral character for the past five years. I did
not 'deny his request for voluntary departure on the ground that he was statutorily ineligible therefor. I denied it as a matter of discretion. In my opinion
this respondent has absolutely nothing working for him in this case. • • •
(Tr. p. 19.)
From our own reading of the record," we consider that the special
inquiry officer's evaluation of respondent's situation is a valid one, and
that the equities upon which to base a discretionary grant of voluntary
departure to a stowaway, with no ties in this country, who has been
here for only a year, are absent. The respondent has shown no convincing reason why he should be permitted to escape the legal consequences of his unlawful entry and stay in the United States.
ORDER: It, is ordered that the appeal herein be and the same is
hereby dismissed.
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