MATTER OF 0
In DEPORTATION Proceedings
A-1287626
Demoted by Board November 20, 1959
Relief under section 5, Act of September 11, 1957, not available to aliens in
United States who failed to qualify for preexamination by June 30, 1959.
Relief under section 5 of Act of September 11, 1957, having been available to
aliens in the United States only when eligible for preexamination, an alien
who failed to qualify for preexamination by June 30, 1959 (terminal date
established by regulation) is precluded from obtaining reconsideration of
previously denied section 5 application.
CHARGES :
Warraut. Act of 1952—Section 241 ( a ) (1) LS U.S.C. 1251 (a ) (1)—Immigrant, no immigrant visa.
Act of 1952—Section 241(a) (12) [8 U.S.C. 1251(a) (12)]—Manager of house of prostitution after entry.
Act of 1952—Section 241(a) (12) [8 U.S.C. 1251(a) (12)1—Connected with management of house of prostitution after entry.
Lodged: Act of 1952—Section 241(a) (1) [9 U.S.C. 1251(a) (1 )]—Convicted
of crime or misdemeanor prior to entry, to wit, operating house
of Ill fame and prostitution.
BEFORE THE BOARD
Discussion : Respondent is married, male, a native and national of
Russia, who last entered the United States at Miami, Florida, in
1950 following a brief visit to Cuba for pleasure. Respondent
first entered the United States on November 00, 1900, at 10 years
of age, accompanied by his family, and was admitted for permanent residence. Respondent has admitted that at the time of his
last entry he claimed to be a ri I izp,n of the United States and was
admitted as such by the primary inspector. This case has not
previously been before the Board, although the warrant for the
arrest of the alien was issued on February 3, 1953.
On February 13, 1953, the special inquiry officer found respondent to be deportable on the first charge set forth in the warrant of
arrest, as an alien who entered without presenting a valid visa
or other document, and under the lodged charge, in that: he i s a
person who has been convicted of a felony or other crime or mis-
demeanor involving morel turpitude prior to entry, to wit, operating a house of ill fame and prostitution. The special inquiry officer
ordered him deported and denied the application for discretionery
relief and voluntary departure on the ground that his conviction
for the offense of operating a house of ill fame and prostitution,
having occurred within the preceding 5 years, precluded the finding
of good moral character.
On the basis of respondent's marriage on January 13, 1959, to a
native United States citizen, the special inquiry officer ordered that
the outstanding warrant of deportation against respondent be withdrawn and granted the motion to reopen the proceedings to permit •
him to apply for voluntary departure with preexamination. On
May 11, 1959, the special inquiry officer found that respondent, married to a native-born United States citizen, is eligible for a non
quota status and issuance of an immigrant visa ; that the respondent's wife would file a visa petition in his behalf; that respondent
]tad filed an application for pretiAamination, and granted respondent voluntary departure with preexamination. The special inquiry
officer stated further that the respondent had filed an application for
preexamination "so that he may adjust his immigration status under
that procedure by obtaining an immigrant visa from a consul in
Canada after he receives his nonquota status." There is no mention
in that order of section 5 of Public Law 85-316. However, on
June 12, 1959, respondent was notified by the special inquiry officer
that he could appear before that officer on June 16, 1959, at Jacksonville, Florida, for hearing in connection with his application for a
waiver (of certain excluding provisions) under section 5 of the
Act of September 11, 1957 (
Public Law 85-316). The purpose
of this hearing, respondent was informed, was to afford him an
opportunity to establish that his exchmion or deportation would
result in extreme hardship to his United States citizen spouse,
children, de. The special inquiry officer was informed by the
alien and by counsel that respondent could not appear in Jacksonville for the hearing on June 16. The special inquiry officer told
the alien that if he appeared in Miami on any business day before
July 1, 1959, his hearing would be completed, but that the special
inquiry officer would not again be in Jacksonville or Pensacola
before July 1, 1959. Respondent did appear on June 30, 1959, at
4 :10 P.M., which was the last day on which the relief of preexamination was available under the regulations.
The special inquiry officer on June 30, 1959, denied respondent's
application for a waiver under section 5 of the Act of September 11,
1957, as a matter of discretion, stating that respondent, while seeking a benefit from the Service, concealed three arrests during the
recent past, indicating that he has not rehabilitated himself, or
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shown respect for the orderly processes of law, criminal or administrative, and is not yet ready to receive the privilege of residing permanently and legally in this country and petitioning one
day for United States citizenship. The special inquiry officer
granted respondent voluntary departure in lieu of deportation and
certified the case to this Board.
Following the decision of the special inquiry officer on June 30,
1959, respondent retained present counsel who filed a motion with
the special inquiry officer for rehearing and reconsideration, and
also filed a statement to accompany the record to this Board in the
event that rehearing and reconsideration should be denied. He enclosed letters of character reference relating to respondent. In oral
armiment before this Board the Service Representative argued that
the special inquiry officer's denial of preexamination was proper on
the merits. He also requested the Board to consider the motion
for reopening and rehearing on the ground that preexamination is
no longer available.
The Act of September 11, 1957, Public Law 85-316, section 5, w as
applied to aliens in the United States only where eligible for preexamination. A terminal date was then provided by regulations.
8 CFR 235a.1, issued September 1, 1958, provided that an application for preexamination must be made prior to August 21, 1958.
That time was extended by 8 CFR 235a.1, issued November 1, 1958,
providing that an application for preexaminatiOn must he filed on
Form I-63 prior to December 1, 1958. 8 CFR 235a.2 provides that
the applicant, if found admissible in preexamination proceedings,
shall be given a sealed letter not later than June 30, 1959, addressed
to the Canadian immigration officer at the port through which he
will enter Canada, showing the purpose of his visit to Canada and
guaranteeing if admitted to Canada he. will be readmitted to the
United States or, if found inadmissible when seeking reentry to the
United States, he will be paroled into the United States.
During oral argument before the Board the Service Representative was requested to inform the Board as to whether or not the
whole preexamination process must have been concluded by June 30
1950, or whether cases in process on that date were continued am
concluded after June 30. The Board had been informed by at
torneys in other cases that in some districts cases were still 'twin
processed if application was made, but it had not been possib
to complete them by June 30. The Board felt the procedure show
be consistent and uniform in all cases. On September 17, 195
the Immigration and Naturalization Service, through the Servi
Representative, informed the Board as follows: "All applicat
for preexamination who were given appointment dates by Americ
consuls in Canada prior to July 1, 1959, were preexamined by
480
Service on or before June 30, 1959, and, if found admissible, were
issued Forms I-62 for use in departing to Canada. The appointment dates with the consuls in many instances were dates after
July 1, 1959, but all Service action was completed prior to that
date."
On the basis of the above information, all Service action having
been concluded in the instant case on June 30, 1959, and respondent
having been notified by the American Consul at Niagara Falls,
Ontario, Canada, that he could appear in person at that consulate
on July 27, 1959, to apply for a visa, he would have been eligible
for the waiver he seeks, if the decision of the special inquiry
officer had been favorable. However, the action was unfavorable,
and at this time a motion for reopening and rehearing in connection
with an application for waiver under section 5 of the Act of
September 11, 1957, is too late. The motion, made on July 17,
1959, could not be granted, because the alien's case for preexamination had to be completed before July 1, 1959.
Aside from the procedural technicality, it is our opinion that the
special inquiry officer's denial of the waiver on the merits was correct. These proceedings have been pending since 1953. In the 5
years prior to 1953, respondent was arrested and convicted for a
deportable, offense. As the special inquiry officer has pointed out,
in the most recent hearings respondent failed to disclose arrests
during the years 1955, 1956 and 1958, and only admitted these
arrests as the result of the special inquiry officer's questioning based
on independent investigation. Respondent pleads that he did not
realize he was being arrested, but under the circumstances of this
record we are not persuaded that he is so unsophisticated. He has
been granted voluntary departure in lieu of deportation, and that
is the maximum relief to be granted on this record at this time.
Order: It is ordered that the order of the special inquiry officer
be affirmed.
It is further ordered that the respondent's motion be and is
hereby denied.
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