Interim Decision #1858
MASTER Or CUING
In Deportation Proceedings
A-6154994
Decided by Board April 4, 1968
Since the phrase "is deportable, as used in section 244(a) (2) of the Immigration and Nationality Aet, as amended, relates to an alien who has been charged
and found deportable under one or more of the paragraphs of section 241(a)
of the Act enumerated in section 244(a) (2), respondent, who has been convicted of a narcotics violation bnt is not charged nor found deportable under
section 241(a) (11), is statutorily eligible for suspension of deportation under
section 244(a) (1), as amended, where he is charged with deportability on
grounds encompassed within section 244(a) (1).
CHARGES :
Warrant: Act of 1924—No immigration visa.
Act of 1929—Reentered within one year of arrest or deportation.
ON BEHALF OF RESPONDENT : Haskell R. Thirst, Esquire
84 William Street
New York, New York 10038
The respondent, a native and citizen of China, has been found deportable on the above stated charges. An order entered by the special
inquiry officer on January 8, 1858 grants the respondent :suspension of
deportation pursuant to the provisions of section 244(a) (1) of the
Immigration and Nationality Act The case has been certified to the
Board of Immigration Appeals for final decision of the legal question
involved in the respondent's eligibility for suspension of deportation.
Discussion as to deportability: The respondent, a married male
alien, 55 years of age, last entered the 'United States at the port of
New York on March 6, 1952. He was admitted under section 3(5) of
the Immigration Act of 1921 as a member of the crew of the SS
"Simeon Reed" for a temporary period of shore leave not to exceed
29 days. He testified that at the time of his entry, it was his intention
to remain in the United States permanently and that he was not in
possession of an immigration visa. Prior to the respondent's entry on
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Interim Decision #1858
March 6, 1952, he had been arrested and deported through the port
of Newport News, Virginia on January 15, 1952. The evidence of
record affirmatively establishes the respondent's deportability as
charged in the warrant of arrest issued on Apri121, 1952.
Discussion as to eligibility for suspension of deportation: The
respondent has applied for suspension of deportation under the pro-
-visions of section 244 of the Immigration and Nationality Act. The
application raises the issue of whether the respondent's eligibility for
suspension of deportation should be determined under the provisions
of paragraphs (1) or (2) of section 244(a) (1) of the Act. The special
inquiry officer concludes that as a matter of law the respondent is
eligible for suspension of deportation under the provisions of section
244(a) (1) of the Act. He has certified his conclusion on this issue to
the Board of Immigration Appeals for final decision.
The warrant of arrest issued on April 21, 1952 charges that the
respondent is deportable under the provisions of the Act of May 26,
1924 as an immigrant not in possession of a valid immigration visa
and the acts approved March 4, 1929 and February 5, 1917, in that he
is an alien who had been arrested and deported and who reentered the
United States before the expiration of one year following his deportation. The aforestated charges 'are not enumerated in section 244(a) (2)
of the Immigration and Nationality Act but are encompassed within
section 2A1 (a) (1).
-
There is evidence of record, however, that the respondent was convicted on two occasions in 1945 for violation of narcotic laws relating
to possession, receiving and importing narcotics (Ex. 4 of File 0801-
2566, hearing of October 2, 1945 entered as Ex. 5 in the hearing of
May 28, 1952). He was committed to the United States Public Health
Service Hospital at Lexington, Kentucky to serve a two-year sentence. During a deportation hearing accorded the respondent on October 2, 1945 at the Public Health Service Hospital in Lexington,
Kentucky, he was found to be "addicted to the use of narcotic drugs,
and . . . not a dealer in or peddler of such drugs." It appears that
the respondent has been cured of his addiction. The charge in the
warrant of arrest issued on September 18, 1945 and predicated on the
respondent's narcotic convictions was not sustained.
Section 244(a) (1) of the Act provides for the suspension of deportation of an alien who "is deportable under any law of the United
States except the provisions specified in paragraph (2) of this subsection . . ." Suspension of deportation under paragraph (2) of section 244(a) is limited to aliens who are deportable as criminals,
anarchists, prostitutes and includes within its provisions an alien who
"is deportable"- under section 241(a) (11) of the Act as a narcotic
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Interim Decision #1858
violator (emphasis supplied). The issue with regard to whether the
respondent's deportation may be suspended under section 244(a) (1.)
depends upon an interpretation of the phrase "is deportable" as used
in section 244(a) (2). The question before us is whether the phrase
"is deportable" means that an alien is to be considered within section
244(a) (2) only if he is charged with and found deportable as an
alien within one of the classes of aliens mentioned in paragraph (2)
of section 244(a) or does the quoted phrase require an application for
suspension of deportation to be considered under paragraph (2) where
the record establishes that had deportability been charged under one
or more of the specified provisions of section 244(a) (2), it would have
been sustained but no such charge was in the warrant of arrest, the
order to show cause or lodged during the course of the hearing.
The deportation process is not automatic. The procedure prescribed
under section 242(b) of the Act "shall be the sole and exclusive pro..
cedure for determining the deportability of an alien." An alien within
the United States, unlike one applying for entry at the border, is
entitled to the full benefits of procedural due process in accordance
with the Fifth Amendment to the Constitution. Sung v. McGrath, 339
U.S. 33,
94 L. Ed. 616 (1950) ; Chao v. Calling,
344 U.S. 590,
97
L. Ed. 576 (1953).
Section 244(a) (2) requires that an alien be one who "is deportable."
8 CFR 242.14(a) provides "A determination of deportability shall not
be valid unless it is found by clear, unequivocal and convincing evidence that the facts alleged as grounds for deportation are true"
(emphasis supplied). Section 242(b) commands 'that determination of
deportability may emerge only from a record made in a proceeding
before a special inquiry officer. The regulations (8 CFR 242), promulgated pursuant to section 242 of the Act provide, inter alia, that an
alien must be furnished with notification of the charge against him,
must be given an opportunity to defend against it and an application
for suspension of deportation "under this section . . . shall not be
held to constitute a concession of . . . deportability in any ease in
which the respondent does not admit his . . . deportability" (8 CFR
242.17 (d) ) (emphasis supplied).
There is no charge or ground for deportation lodged against the
respondent in this proceeding relating to his conviction for a violation of the narcotic laws. It is our conclusion, based upon the foregoing,
that the phrase "is deportable" as used in section 244(a) (2) of the
Act, as amended, relates to an alien who has been charged with and
found deportable on one or more of the provisions of section 241 of
the Act enumerated within section 244(a) (2). Since the respondent
has been charged with and found deportable on charges encompassed
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within section 244(a) (1) of the Act, as amended, his application for
suspension of deportation will be considered under that subsection.
We next turn to whether the respondent is eligible for and merits
the grant of suspension of deportation under section 244(a) (1) of
the Act. There is affirmative evidence of record that the respondent
has been physically present in the United States since his last entry
on March 0, 1952. He originally entered the United States hi December 1944 as a member of the crew of the SS "Malvena." Following
this entry, he was deported through the port of New York on January 18, 1946. He reentered the United States in April of 1946 as a
crewman and was thereafter arrested and deported pursuant to law
through the port of Newport News, Virginia on January 14, 1952.
It is alleged that the respondent maintained a residence in New York
during the period 1944 to 1952. We conclude that the respondent has
the requisite period of continuous physical presence in the United
States as contemplated by section 244(a) (1) of the Immigration and
Nationality Act.
A report of an investigation, dated July 28, 1967 (Ex. R.,1), is
favorable to the respondent. A current check of the records of the
New York City Police Department, the Bureau of Narcotics, the
Bureau of Criminal Identification, the Federal Bureau of Narcotics
of New York City, the United States Customs and other agencies
developed no record of the respondent since his conviction for the
possession of narcotics in 1945. The respondent has submitted letters
from his employer and from a benevolent association which state
that the respondent has a good reputation among his fellowmen and
that he is a thoroughly capable, dependable and honest employee. We
conclude that the respondent has been a person of good moral character for the period required by section 244(a) (1) of the Act.
The respondent is now 55 years of age. He married his second wife,.
a lawful permanent resident alien, on June 10, 1965. The respondent
was a widower prior to his second marriage. The respondent and his
wife have a joint savings account amounting to over $18,700. He
is employed as a cook in a restaurant in New York City and earns
$125.00 per week. The respondent's -wife is employed as a sewing
machine operator and earns $50.00 per week. There are no relatives
of either the respondent or his wife residing in the United States.
He has a sister in Singapore and a brother whose whereabouts are
unknown. There are no living children from either of the respondent's
marriages.
The respondent testified that if he were deported from the United
States, he would be unable to find work to support himself and his
wife. He further testified that he has become adjusted to the manner
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Interim Decision *1858
of living in the United States and could not adjust elsewhere as he
has maintained a residence in this country for more than 20 years.
The respondent's wife testified that if her husband were deported,
there would be no one to take care of her as she is now 54 years of
ageThe respondent testified that he has submitted annual address reports as required by the alien registration provisions of the immigration laws, that he has never been the recipient of public or private
relief or assistance, that he is opposed to communism and that he
could not depart from the United States to obtain an immigration
visa because he has never acquired residence in any country. We
conclude on the basis of the foregoing that the respondent's deportation would cause him extreme hardship within the meaning of
section 244(a) (1) of the Immigration and Nationality Act,. We affirm
the order entered by the special inquiry officer granting suspension
of deportation under section 244(a) (1) of the Immigration and
Nationality Act, as amended. An appropriate order will be entered.
We note in passing that the respondent has been physically present
in the United States for a continuous period of more than ten years;
has been a person of good moral character during this period and
his deportation would result in extreme hardship to his lawful resident
alien wife. Even if we were considering the application under the
more stringent provisions of section 244(a) (2), we would suspend
the respondent's deportation.
ORDER: It is directed that the order entered by the special inquiry
officer granting the respondent suspension of deportation under the
provisions of section 244(a) (1) of the Immigration and Nationality
Act, as amended, be and the same is hereby affirmed.
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