Interim Decision #2766
MATTER OF LEE
Application for Permission to Reapply
A-16027182
Decided by Commissioner December 21, 1978
(1) A record of immigration violations standing alone will not conclusively support a
finding of lack of good moral character ( Matter of Carbajal, Interim Decision 2765
(Comm. 1978) ).
(2) Recency of deportation can only be considered when there is a finding of a poor moral
character based on moral turpitude in the conduct and attitude of a person which
evinces a callous conscience. In such circumstances, there must be a measurable
reformation of character over a period of time in order to properly assess an applicant's ability to integrate into our society. In all other instances when the cause for
deportation has been removed and the person now appears eligible for issuance of a
visa, the time factor should not be considered.
(3) Matter of H R , 5 l&N Dec. 769 (C.O. 1954); Matter of Chim,14I&N Dec. 357 (R.C.
— —
1973), modified to the extent that sections 212(a)(16) and (17) of the Immigration and
Nationality Act, 8 U.S.C. 1182(a)(16) and (17), are interpreted to include remedial
relief for previously deported or excluded aliens.
ON BEHALF OF PETITIONER: Jack Wasserman, Esquire
1707 H Street, N.W.
Washington, D.C. 20006
This matter is before the Commissioner on certification as provided
by 8 C.F.R. 103.4, for review of the Regional Commissioner's decision to
dismiss the appeal from the District Director's order denying an
application for permission to reapply for admission into the United
States after deportation.
The applicant is a 39-year-old native and citizen of China residing in
Hong Kong- He first came to Service attention as a crewman on board
the M/V Eastern Star applying for permission to land temporarily in
pursuit of his calling on June 1, 1965. His application was refused and
he was ordered detained on board as a mala fide crewman. On a
subsequent arrival on the same vessel on November 9, 1965, at Port
Angeles, Washington, he was granted permission to land temporarily
as a crewman. On November 18, 1965, the applicant, accompanied by
two other crewmembers, left the vessel at Port Angeles, Washington,
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and traveled by bus to Seattle, Washington, despite a standing order
issued by the Captain of the M/V Eastern Star that shore leave for all
crewmembers was restricted to the immediate area of Port Angeles.
The applicant and his two companions were taken into custody at the
bus station in Seattle by immigration officers. They were charged with
attempting to desert the vessel on which they arrived, permission to
land was revoked, and they were ordered deported pursuant to section
252(b) of the Immigration and Nationality Act of 1952, as amended, 8
U.S.C. 1282(b). The applicant was returned to his vessel at Port
Angeles on November 20, 1965, and ordered detained on board in
custody of the Master. His deportation from the United States was
effected on November 24, 1965, upon the vessel's departure from the
United States. The applicant was refused landing privileges as a
crewman on five subsequent occasions of arrival on foreign-registered
vessels in the United States. On the fifth occasion of arrival (July 3,
1969), he deserted his vessel, the M/V Deganya, at Newark, New
Jersey. Efforts by the Service to locate the applicant were unsuccessful. On July 21, 1975, a sixth -preference petition was submitted by the
China Garden Restaurant, Incorporated, Raynham, Massachusetts, on
the applicant's behalf. This petition was approved on May 21, 1976. At
the request of this Service, the applicant surrendered himself to this
Service at Boston, Massachusetts, and was granted the privilege of
departing voluntarily from the United States. The record contains
verification of departure on August 21, 1976, from Anchorage, Alaska,
to Tokyo, Japan.
The applicant made application for an immigrant visa at the United
States Consulate in Hong Kong and was informed on October 22, 1976,
that he needed permission to reapply for admission into the United
States after deportation. The instant application was then filed on
October 29, 1976, at Boston and subsequently transferred to the Seattle
office, which had jurisdiction in the matter pursuant to 8 C.F.R.
212.2(c).
The District Director denied the application as a matter of discretion and cited Matter of Tin, 14 I&N Dec. 371 (R.C. 1973), and Matter of
Chim,
14 I&N Dec. 357 (R.C. 1973), as justification for his action. The
Regional Commissioner affirmed the District Director's decision and
dismissed the appeal.
Section 212(a)(17) of the Immigration and Nationality Act of 1952,
as amended, 8 U.S.C. 1182(a)(17), has its roots in section 3 of the Act of
1917. Section 3 made prostitutes and other immoral classes who had
been previously debarred or deported from the United States excludable unless they had received permission from the Secretary of Labor
to reapply for admission. The Act of March 2, 1929, extended this
provision, making it a felony to reenter the United States after having
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been deported unless the Secretary had granted permission to reapply
for admission after deportation.
The Immigration and Nationality Act of 1952, as amended, incorporated the same language but made a distinction between those
previously excluded (section 212(a)(16) of the Act) and those who had
been deported (section 212(a)(17) of the Act). Those previously excluded require permission of the Attorney General to reapply for
admission if that application was to be made within 1 year of the date
of exclusion and deportation. Those previously deported require the
permission of the Attorney General to reapply for adthission at any
time after deportation.
The intent of Congress in enacting section 212(a)(16) and (17) can
best be found in the conclusions and recommendations of the Senate
Committee on the Judiciary in their report (S. Rep. No. 1515, 81st
Cong., 2nd Sess. (1950)) concerning the effectiveness and necessity of
retaining the various laws affecting immigration. A study was conducted pursuant to S. Res. 137, 80th Cong., 1st Sess., for the purpose of
bringing all laws pertaining to imr nigration and nationality under one
-
composite heading. (The Immigration and Nationality Act of 1952 was
the fruit of these labors.) The Committee report issuing from this
study addressed the subject of previously deported or excluded aliens
and made the following conclusions and recommendations.
Speaking of section 3 of the 1917 Act, the Committee stated:
The subcominittee finds that the law as it is now written is adequate to prevent the
abuse of the exclusion and deportation laws by aliens who attempt to reapply for
admission to the United States soon after their exclusion or deportation, as well as to
allow reconsideration when the alien is able to overcome the handicaps which brought
about the original exclusion and deportation. Page 365. (Underscoring supplied.)
The second clause of these conclusions and recommendations directly concerns the instant application. The import of these words is to
give a previously deported alien a second chance and connotes a
remedial relief rather than a punitive provision of statute. In this
regard, I find the several decisions affecting permission to reapply
after deportation lacking this attitude. Matter of H—R—, 5 I&N Dec.
769 (C.O. 1954), and Matter of Chirt, supra, convey a punitive attitude
and attach conditions beyond anything I believe Congress intended in
granting the Attorney General authority to allow previously deported
or excluded aliens to reapply for entry into the United States. The
discussion of the issues raised in the instant case will be made with the
foregoing in mind.
1. Moral character of the applicant:
In a recent case before me on certification, the Regional Commissioner also held that a
record of immigration violations denoted poor moral character and cited this finding
as one of the adverse factors considered. In that case, I ruled that contention was
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without merit, and reaffirmed Matter of T—, 1 I&N Dec. 158 (BIA 1941), in that a
record of immigration violations standing alone will not conclusively support a finding
of a lack of good moral character. In the instant case, I will likewise dismiss the
contention that the applicant is a person lacking good moral character.
2. Recency of the deportation:
The recency of the deportation is mentioned as a factor to be considered in Matter of
Tin, supra. However, there is but a passing reference to this factor. ("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 ....")
I believe that the recency of the deportation can only be considered when there is a
finding of poor moral character based on moral turpitude in the conduct and attitude
of a person which evinces a callous conscience. In such circumstances, there must be a
measurable reformation of character over a period of time in order to properly assess
an applicant's ability to integrate into our society. In all other instances when the
cause of deportation has been removed and the person now appears eligible for
issuance of a visa, the time factor should not be considered.
3. Need for the applicant's services in the United States:
The Regional Commissioner considered the need for the services of the applicant in
the United States and dismissed this as a favorable factor. However, I find there is
merit in counsel's contention that where the applicant will provide services to the
public in a job category where sufficient workers in the United States are not available,
this is a favorable factor in behalf of the applicant
4. Applicant's contention that he did not know he was deported:
This contention will be dismissed without discussion. The record clearly shows he was
deported pursuant to section 252(b) of the Act and does need permission of the
Attorney General to apply for admission to the United States.
5. Length of time applicant had been in the United States:
I can only relate a positive factor of residence in the United States where that
residence is pursuant to a legal admission or adjustment of status as a permanent
resident.
If we were to reward a person for remaining in the United States in violation of law,
the structure of all laws pertaining to immigration would be seriously threatened.
Therefore, I will dismiss counsel's contention that tliis should be considered a
favorable factor.
In item #1, the Regional Commissioner discussed the record of
immigration violations in the context of equating these violations with
a finding of a lack of good moral character. While I dismissed the
finding of poor moral character, I will not lightly dismiss a serious
record of immigration violations. An evinced callous attitude toward
violating the immigration laws without a hint of reformation of
character should be considered as a heavily weighted adverse factor. In
the instant case, I do find that hint of reformation of character in the
attitude of the applicant in surrendering himself to the Service and
departing the United States voluntarily as requested. While it may be
argued that his motivation in doing so was predicated on self-interest,
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it is only natural that positive character reformation is more apt to
take place when a benefit seems likely to accrue to a person.
In applying the principles set forth in this discussion and weighing
all factors present, I find that the applicant should be granted permis
sion to reapply for admission into the United States after deportation
and will set aside the order of the District Director denying the
application and the Regional Commissioner's dismissal of the appeal.
Matter of Chin, supra, and Matter of Tin, supra, are modified insofar
as the weight given to adverse factors is inconsistent with the weight
accorded the adverse factors in this decision.
ORDER: The District Director's decision denying the application
for permission to reapply for admission after deportation and the
Regional Commissioner's dismissal of appeal to that decision is hereby
set aside, and the application is granted.
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