Interim Decision #2207
MATTER OF TIN
Application for Permission to Reapply
A-15977562
Decided by Regional Commissioner June 4, 1973
(1) Absent substantial equities in the instant case where applicant has no family
ties in the United States and there is no indication that denial would result in
hardship to anyone (except for the unsubStantiated allegation of temporary
hardship to the employer who employed applicant while illegally in the United
States), permission to reapply for admission after deportation is denied, as a
matter of discretion, in the light of applicant's disregard for the immigration
laws, particularly his reentry following deportation, having been smuggled
across the Canadian border into this country.
(2) In determining an application for permission to reapply after arrest and
deportation, consideration should be given to all pertinent factors These
factors include, but are not limited to, the basis for deportation; recency of
deportation; length of residence in the United States; applicant's moral
character; his respect for law and order; evidence of reformation and rehabilitation; his faintly responsibilities; any inadmissibility under other sections of
law; hardship involved to himself and others; and the need for his services in
the United States.
(3) Matter of H--R—, 5 I. & N. Dec. 769, is superseded to the extent that that
decision requires the existence of at least one of the four conditions specified
therein before permission to reapply may be granted.
ON BEHALF OF APPLICANT: Jack Wasserman, Esquire
1707 TT Street, N.W.
Washington, D.C. 20006
The applicant is a 36-year-old native and citken of China. He
had been admitted as a crewman on a vessel on May 25, 1966 for
the time the vessel was in port, not to exceed 29 days, and failed to
depart on the vessel or within that time. He was apprehended by
an officer of this Service on December 19, 1966. After a special
inquiry hearing, he was granted the privilege of departing voluntarily from the United States, but he failed to do so and on
December 14, 1967 he was deported. It is because of this deportation that he now requires, and has applied for, permission to
reapply for admission to the United States.
On Lhe date of the filing of the application, January 2, 1972, he
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was in the United States after having been smuggled into the
country on kiigust 5, 1970 across the Canadian border. He had
arrived in Canada as a crewman on a vessel and had deserted it.
He surrendered voluntarily to this Service at Washington, D.C. on
May 18, 1972. Thereafter, a special inquiry officer granted him the
privilege of departing voluntarily from the United States within a
time to be set by the District Director with a proviso that if he
failed to depart he would be deported. He departed voluntarily on
February 10, 1973.
The applicant has no relatives in the United States. The record
shows him to have a wife and four children in mainland China. His
own foreign address is shown as in Hong Kong. He was not
prosecuted for his illegal entry across the Canadian border, and
there is nothing in the record to show that he is other than a
person of good moral character. While in the United States in an
illegal status, he was employed in Chinese restaurants. His previous employment is shown as a bridge boy, sailor and quartermaster on vessels.
The applicant is the beneficiary of a labor certification dated
June 21, 1972 issued pursuant to section 212(aX14) of the Immigration and Nationality Act, as amended, as a cook, Chinese style
food, requiring a minimum of two years of experience. It is evident
from the record that all of this required experience was gained by
the applicant while he was illegally in the United States.
The offer of employment on which the labor certification is
based is by a restaurant which was the last place of employment
of the applicant. Attorney for the application in oral argument
stated the restaurant is in urgent need of regaining the services of
the applicant. This is because the owner's wife, who normally
helps out, is pregnant and currently unable to assist in the
operation of the restaurant. This is additional information which
was not before the District Director when he made his decision to
deny the application.
However, there was in the record when the District Director
made his decision a copy of the labor certification which had been
submitted by the attorney. The District Director's decision did not
refer to the need for the services of the applicant in the United
States. The attorney argues that the need should have been cited,
since it is one of four categories of eases in which permission to
reapply may be granted according to the precedent decision,
Matter of H—R, 5 I. & N. Dec. 769. The other three categories
mentioned in that decision are eases in which (1) unusual hardship
would result to persons lawfully in the United States if the
application should be denied, or (2) the applicant is a bona fide
crewman who has no means of earning his livelihood other than
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by pursuing such calling, which necessitates his coming to the
United States, or (3) it is necessary for the applicant to enter the
United States frequently across the international land border to
purchase the necessities of life or in connection with the business
in which he is engaged or for some other urgent reason.
The decision in Matter of II—R --isupra, was made in 1954. It
indicates that permission to reapply for admission may not be
granted unless the alien is within one of the categories of cases
described above. The Service in recent years has not observed that
restriction literally. While the circumstances described in those
four categories are favorable factors to be considered with unfavorable factors in determining whether an application for permission to reapply for admission should be granted as a matter of
discretion, the Service no longer regards them as exclusive factors.
For example, in the absence of significant unfavorable factors, the
Service would not be averse to approving an application for
permission to reapply by a refugee even though denial would
result in unusual hardship only to himself and not persons
lawfully in the United States. As a further example, an alien who
was deported many years ago solely for a minor immigration
violation and who has a bona fide reason for wanting to immigrate
to the United States, may be granted permission to reapply even
though the hardship to the citizen would not be unusual, absent
any adverse factors. The Matter of fl R is, therefore,
— —
superseded to the extent that it is inconsistent with the decision in
this case.
Consent to reapply for admission is required in the case of an
alien who has been arrested and deported, in order to be removed
from the class of excludable aliens described in section 212(aX17) of
the Immigration and Nationality Act. That section describes as
excludable:
Aliens who have been arrested and deported, or who have fallen into distress
and have been removed pursuant to this or any prior act, or who have been
removed as alien enemies, or who have been removed at Government expense
in lieu of deportation pursuant to section 242(b), unless prior to their embarkation or reembarkation at a place outside the United States or their attempt to
be admitted from foreign contiguous territory the Attorney General has
consented to their applying or reapplying for admission.
In determining whether the consent required by statute should
be granted, all pertinent circumstances relating to the applicant
which are set forth in the record of proceedings are considered.
These include but are not limited to the basis for deportation,
recency of deportation, length of residence in the United States,
the moral character of the applicant, his respect for law and order.
evidence of reformation and rehabilitation, his family responsibili-
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ties, any inadmissibility to the United States under other sections
of law, hardship involved to himself and others, and the need for
his services in the United States.
In this case the applicant has no family ties in the United
States. His wife and children reside in mainland China. There is no
indication that denial of the application would result in hardship
to anyone, with the possible exception of his intended employer.
The manner of his last entry into the United States after his
deportation evidences a disrespect for law. The experience,
through which he qualified for the labor certification issued to his
intended employer, was acquired while in an illegal status subsequent to that entry. He thus obtained an advantage over aliens
seeking visa issuance abroad or who abide by the terms of their
admission while in this country. Under these circumstances, including the possibility that approval of the application would
appear to be a condonation of his acts and could encourage others
to enter to work in the United States illegally, approval would be
appropriate only if there were substantial equities in the applicant's favor.
We have taken note of the fact that there is no indication that
the applicant is ineligible for visa issuance or admission to the
United States; that he surrended to the Service voluntarily; and
that his recent departure (on February 10, 1973) was accomplished
voluntarily; at his own expense; and counsel's allegation that the
applicant's services are urgently needed by the intended employer
to provide services in the latter's restaurant normally provided by
the employer's wife who is incapacitated because of pregnancy.
On balance, it is concluded that the unfavorable factors outweigh the favorable ones and that approval of the application is
not warranted as a matter of discretion.
ORDER: The decision of the District Director at Washington,
D.C. is affirmed and the appeal of the applicant is hereby dismissed.
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