MATTER OF 0—
In SECTION 212(d) (3) Proceedings
A-3904268
Decided by Assistant Commissioner March 19, 1959
Approved by Board April 2, 1959
Excludability—Specific statutory ground not required for exclusion of alien
who would immediately become deportable upon entry—NonimmigrantSection 212(d)(3) may be exercised to waive inadmissibility not based on
section 212(a).
An alien who would upon entry immediately become deportable under section
241(a) (5) of the 1952 act because of prior conviction under the Foreign
Agents Registration Act is deemed excludable in law despite absence of
specific excluding autnorrty in section 212(a) of the act. (Cf. Mutter of
R l) , Int. Dec. No. 950.) however, his admission as a nonimmigrant
may be authorized pursuant to section 212(d) (3) of the act.
Asnue,nrow Adraigsinn ns n n.ffirnmizrant far 2 months under section 212
(d) (3) of the Immigration and Nationality Act notwithstanding excludability by reason of conviction of violation of 18
U.S.C. 88, conspiracy, and 22 D.S.C. 231, Foreign Agents Registration Act.
BEFORE THE ASSISTANT COMMISSIONER
(March 19, 1959)
Discussion; The alien is a 61-year-old native, citizen and resident
of Japan, born in Kitasaitama-ken, Saitama-gun, August 4, 1897.
He first entered the United States at Seattle, Washington, August 4,
1922, and last entered at El Paso, Texas, October 18, 1931, after a
2-month absence in Mexico.
On June 5, 1942, the alien was convicted in the United States
District Court for the District of Columbia of the violations set
out above and sentenced to from 2 to 6 months' imprisonment. He
was repatriated to Japan September 2, 1943.
Since 1054 the subject has been a key employee of Northwest
Orient Airlines in the position of Assistant to the Vice-President
for the Orient. His employers wish to bring him to the headquarters
office in St. Paul, Minnesota, for a period of 2 months to acquire
knowledge of the company's domestic operations.
The Department of State has inquired (1) whether the alien
is considered to be inadmissible by reason of his conviction, (2) if
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so, whether the ground of inadmissibility can be waived pursuant
to the authority contained in section 212(d) (3) of the act.
Has the subject been convicted of an offence, or offenses, involving moral turpitude so as to make him excludable under section
212(a) (9) or (10) of the act? As a matter of law, a conspiracy
to commit an offense involves moral turpitude only when the substantive offense charged therein involves moral turpitude (United
States es rel. Berlandi v. Reimer, 30 F. Supp. 767; Mercer v. Lance,
96 F.ad 122, cart. don. 305 TT.S. 611). The substantive offense here
charged, violation of the Foreign Agents Registration Act of 1935,
as amended, does not involve moral turpitude (Matter of M—,
3 I. & N. Dee 310). Hence, it is found that the alien is not
subject to exclusion under section 212(a) (9) or (10) of the act;
nor is there any other express provision in section 212(a) requiring his exclusion.
Notwithstanding the lack of a specific statutory ground of exclusion, is the alien nevertheless excludable because of his conviction? Section 241 (a)(5) of the act provides that "Any alien
in the United States … °boll, upon the order of the Attorney
General, be deported who— … has been convicted of violating or
conspiracy to violate any provision of the Act entitled 'An Act to
require the registration of certain persons employed by agencies to
disseminate propaganda in the United States, and for other pur•
poses', approved June 8, 1938, as amended …." That section
does not couple deporiability with any partiei lar entry into the
United States: It merely makes deportable such an alien in the
United States. Thus, if the subject were to gain entry he would
immediately become deportable. It has been the long-standing administrative practice to hold such an alice excludable. This conclusion has been reached in cases involving persons previously excluded or deported on charges involving prostitution (Matter of
N—, 55917/905, unreported) ; persons convicted of violating the
narcotics laws (Matter of , 1 I. & N. Dec. 293) ; persons who
have failed to comply with section 265 of the Immigration and
Nationality Act (Matter of S--,
7 I. & N. Dec. 536); and persons convicted under 18 U.S.C. 1546 (Matter of R U , Int.
Dec. No. 950).
Having found the subject excludable, may his admission be authorized under the authority of section 212(0)(3) of the act which
provides for the admission of a nonimmigrant who is inadmissible
under one or more of the paragraphs enumerated in subsection (a),
other than paragraphs (27) and (29)? Since excludability rests
on long-standing administrative practice rather than on a ground
specifically mentioned in section 212(a), a narrow reading of section 212(d) (3) would seem to preclude the exercise of that dis-
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cretionary authority. However, the sole statutory prohibition is the
exercise of section 212(d) (3) in behalf of aliens excludable under
section 212(a) (27) and (29). All other classes of excludable aliens
may be admitted temporarily under section 212(d)(3). Since the
subject is actually excludable, and the excludability does not rest
upon either section 212(a) (21') or (29), it is concluded that section
212(d) (3) is the proper statutory basis for the exercise of the
Attorney General's discretion to authorize temporary admission of
this applicant. His application will be granted.
Order: It is ordered that the subject's admission to the United
States as a nonimmigrant for a period of 2 months be authorized
pursuant to section 212(d) (3) of the Immigration and Nationality
Act, subject to revocation et any time, provided he is found to be
otherwise admissible than by reason of his conviction of -violation
of 18 U.S.C. 88, conspiracy, and of 22 U.S.C. 233, Foreign Agents
Registration Act, and provided he applies for admission within a
period of 3 months from notification of decision.
Pursuant to 8 CFR 3.1(c), this case is certified to the Board of
Immigration Appeals for review.
BEFORE THE BOARD
(April 2, 1959)
Discussion: The Assistant Commissioner, Inspections Division,
on March 19, 1959, ordered that the alien's admission to the United
States as a nonimmigrant for a period of 2 months be authorized
under the authority provided in section 212(d) (3) of the Immigration and Nationality Act, subject to revocation at any time,
provided he is found to be otherwise admissible than by reason of his
conviction of -violation of 18 U.S.C. 88, conspiracy, and of 22 U.S.C.
233, Foreign Agents Registration Act, and provided that he applies
for admission within a period of 3 months from notification of the
decision. The case has been certified to the Board for final decision
in accordance with 8 CFR 3.] (c).
The alien is a 61-year-old native, citizen and resident of Japan.
The facts detailing his first and last admissions to the United States
at Seattle, Washington, and El Paso, Texas, on August 4, 1922, and
October 18, 1931, respectively, as well as his having been convicted
in the United States District Court for the District of Columbia
on June 8, 142, for violations of section 88, Title 18, U.S.C., conspiracy, and section 233, Title 22, U.S.C., Foreign Agents Registration Act, and his being repatriated to Japan in September 1943,
have been adequately covered by the Assistant Commissioner, Inspections Division, in his decision of March 19, 1959.
The appellant, an employee of the Northwest. Orient Airlines, is
the Assistant to the Vice-President for the Orient. His employers
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desire to bring him to the United States for a period of 2 months
for training in connection with the domestic operations of the
aforementioned company. While in the United States the appellants headquarters will be in St. Paul, Minnesota. On the basis of
the evidence before us it is clear that if the appellant were admitted to the United States he would become deportable therefrom under the provisions of section 241(a) (3) of the Immigration
and National Act by reason of his having been convicted on June 5,
1942, of violation of Title 18, U.S.C., section 88. This Board has
held that a specific statutory ground is not required for the exclusion of an alien who would immediately become deportable upon
entry. The Assistant Commissioner, Inspections Division, after a
detailed recital of the, pertinent evidence in his decision of March
19, 1959, authorized the alien's admission to the United Stales as a
nonimmigrant under section 212(d) (3) of the Immigration and Nationality Act and the reasons therefor are stated tersely and with
clarity therein. The decision reached by the Assistant Commissioner
in his decision of March 19, 1959, is concurred in by this Board.
Accordingly, the following order will be entered.
Order: It is ordered that the order entered by the Assistant
Commissioner, Inspections, on March 19, 1959, be and the same is
hereby approved.
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