MORCOS

Interim Decision #1624

MAI.I.Ed OF MORCOS

In Deportation Proceedings

A-1392870I

Decided by Board /* 26, 1966

(1) Notwithstanding that respondent's voluntary removal from the United

States in 1938 pursuant to section 23 of the Immigration Act of February

5, 1917, as amended, terminated, as a matter of law, his status as a lawful.

permanent resident, his abandonment of permanent residence is established,

as kmatter of fact, since follohing removal he married, was employed, and

lived abroad with his wife and child; he made no effort to return to the U.S.

' until 1844; and his removal request made in 1938 because he had fallen in

need of public aid and thought lie would be better off to go home belies his

presently advanced self-serving claim that he did not intend to abandon his

. residence in 1938; therefore, he was ineligible for the nonquota immigrant

visa as a returning resident which he acquired deliberately withholding from

the consul information concerning • his removal and with which he gainel

entry in 1965, and he is deportable under section 241(a) (1) of the Immigra-

tion and Nationality Act because he was excludable at entry under section

211(a) (2) of the A4.

(2) Permission to reapply is not• warranted as a matter of discretion where

respondent has been absent from the United States for 27 years after re-

moval at government expense pursuant to his request; when seeking the

visa with which he last gained entry, he deliberately withheld essential in-

formation from the consular officer; his wife and child reside abroad, and

, there appears no reason why he cannot return to .the same employinent

abroad he had prior to entry (he has same employer here).

CRAMS :

Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 3251]Excludable by law

existing at time of entry [section 212(a) (17) ; 8

U.S.C. 11823 Removed from the tilted States—No

—

consent to reapply for admission.

Act of 1952—Section 241(a) (1) [8 U.S.C. 1251]—Excludable by law

existing at time of entry [section 212(a) (19) ; 8

U.S.C. 11821—Visa procured by fraud ormillful mis-

representation •

Act of 1952—Section 241(a) (1) [8 U.S.C. 12511—Excludable by law

existing at time of entry [section 211(a) (3) ; 8

U.S.C. 11811—Not nonquota immigrant as specified

in visa.

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Interim Decision #1624

On January 10, 1966, the special inquiry officer denied the respond-

ent's application for permission to reapply for admission to the

United States, nano pro tune, as of the date of his last entry on

January 4, 1965; granted his alternative request for voluntary de-

parture; and provided for his deportation from the United. States

to Australia, alternatively to. the United Arab Republic (Egypt), on

the first and third charges stated in the order to show cause, in

the event of his failure to so depart. The appeal from that decision,

which brings the case before this Board for consideration, will be

dismissed.

The record relates to a 56-year-old married alien male, 'a native

and citizen of the United Arab Republic, who was originally ad-

mitted to the United States for permanent residence on July 23,

1929. On March 28, 1938, he applied for removal from the United

States to Egypt as an alien in distress or in need of public aid from

causes arising subsequent to entry, pursuant to section 23 of the

Immigration Act of February 5, 1917 (former 8 U.S.O. 102), as

amended by the Act of May 14, 1937 (50 Stet. 164). In said appli-

cation, respondent Stated that he had received:public aid from the

State. Relief Administration, and a 'representative of that agency

certified that the respondent had received food, lodging and Cloth--

ing from February 1, 1935 until November 28, 1938 in the amount

of $168.91. In. a swore . interrogation in connection with the.removal

application, taken oh March 28, 1938, the respondent stated that he

was requesting removal to his native country because: "I am broke,

can't get a job, have been on relief and I think that I can go home,

to Egypt and be much batter off than I am here.". On April 18,

1938, the application for removal was granted and the respondent

was removed from the United States on July 23, 1938. Nevertheless ,

he Was admitted to the United States on January 14, 1965, his las .

entry,upohsainfoqutmgravisedo

him by the United. States Consul in Cairo,- Egypt, on January 4,

1965, as a returning resident.

The pertinent portion of section 23 of the Immigration Act of

February 5, 1917, as amended; by the Act of May 14, 1937, which

was in effect at the time of the respondent's removal from the United

States, provided as follows:

That the Commissioner of Immigration and Nationality • *. • shall have

authority to enter into contract foi the suppoit and relief of such aliens as

may fall into distress or need public aid, and to remove•to their native country,

or to the country from whence they came; or to the country of Which they are

citizens or subjects, at any time after entry, at the expense of the appropria-

tions for the enforcement of 'this lit, such as fall into distress or need public

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Interim Decision #1621

aid from causes arising subsequent to their entry and are desirous of being so•

removed, but any person thus removed shall forever be ineligible for read-.

mission except upon the approval of the Secretary of State and the Attorney.

Genf3ral. (Emphasis Supplied.)

Although the requirement of the approval of the Secretary of State

has been eliminated by section 250 of the Immigration and Nation-

ality Act of 1952 (8 U.S.C. 1260), the provision rendering the re-

moved alien ineligible for a visa and for admission to the United

States, except with the prior approval of the Attorney General, has

been retained. Moreover, section 212(a) (17) of the Immigration

and Nationality Act specifically renders inadmissible an alien who

has been removed pursuant to this or any prior Act unless he has.

received the required consent from the Attorney. General to reapply

for admission to the United States.

The respondent initially stated that he did not know whether he

had obtained permission to return to the -United States following his

removal, supra. Subsequently, however, he acknowledged that he

had never applied for permission to return because he did not know

it was necessary. He thereafter stated that he had never received

permission from the Attorney General to return to the 'United States

after his removal.

The foregoing facts of record bring the respondent's case squarely

within the scope of the statutory provisions hereinbefore discussed,

which are controlling in this case. Accordingly, we concur in the

special inquiry difficer's conclusion that the respondent is deportable

on the first charge stated in the order to show cause. We find un-

availing the respondent's claim that if, under the same set of facts,

he were to apply for removal from the United States today his

application would not be granted. It is established and uncontested

that he did make such an application, it was granted and he was

removed. These facts speak for themselves; they bring the respond-

ent's case clearly within statutory provisions rendering him inad-

missible to and deportable from the United States, and there our

inquiry ends. There has been no substantial change hi the law from

the time of the respondent's application for removal to date.

The -special inquiry officer has held that the second charge of

deportability placed against the respondent is not sustained. We

concur in said official's conclusion in this respect, for the reasons

stated. in his opinicm. Further discussion of _this aspect of the case

is unnecessary, except to make it clear that this factor has no bear-

ing whatsoever on the decision in this case.

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Interim Decision #1624

The special inquiry officer has held that the respondent's volun-

tary removal from the United States in 1938, in and of itself, effected

extinguishment of his status as a lawful permanent resident alien,

as a matter of law. We agree with that holding, for the simple

reason that the clear and unambiguous wording of the controlling

statutory provisions, as discussed in connection with the first charge

of deportability, leave . no room for any other conclusion, legal or

logical. Accordingly, respondent was ineligible for a visa as a re- .

turnigesdwhcambktoisunry1965.Co-

sequently, he was not entitled to status as a nonquota Immigrant

and was subject to exclusion wider section 211(a) (3) of the Immi-

gration.and Nationality Act at that time. He is, therefore, subject

to deportation on the third charge contained in the order to show.

cause.

Also, contrary to the contentions of counsel, the respondent's

abandonment of his status as a lawful permanent resident is estab-

lished by the record, as a matter of fact. He was removed from

the United. States at the expense of the government of this country

on his own request on July 23, 1938, because: "I am broke, can't get

a job, have been on relief and I think that I can go home to Egypt

and be much better' of than I am here" We think this statement,

made at the time his application for removal was made, completely

belies his present self-serving claim, advanced for the first time 27

years afterwards and when he is obviously seeking to overcome the

effect of his much earlier action.

In addition, after his voluntary removal to Egypt in 1938, the

respondent married in that country, lived there with his wife and

daughter, and was employed there. Be made no move to return to

the United States until 1944—a period of six years—when he filed

a preliminary visa application. These facts alone are sufficient to

rebut the present claim that he did not intend to abandon his domi-

cile in 1938. Coupled with the statement he made at that time,

supra, the conclusion is irrefutable that he then abandoned his status

as a. lawful permanent resident, faitually as well as legally.

Respondent's reliance upon the cases of Tejede v.. Inienigration

and Naturalization Service (346 F.24 389) and McLeod v. Peterson

(283 F.2d 180) is misplaced. In the former, there was a possibility

that the alien's rights were prejudiced by incorrect advice on the

pare of a United States Consul in the Philippines who was aware

of all the pertinent facts. In the latter, the alien's rights were

adversely difeefed by his departure to Canada on the advice of an

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Interim Decision #1624

officer of the Immigration and. Naturalization Service. Here, how-

ever, the alien's present predicament is traceable clearly and solely

to his own action in requesting voluntary removal. from the United

States.

The United States Consul's action, long thereafter, in issuing the

respondent a visa is of no assistance to him. In the first place, as

we have hereinbefore indicated, the respondent was not entitled. to

that visa. Second, the mistakes of its officers are not binding on

the government (United States ex rel. Lapides v. Watkins, 165 F.2d

1017). Third, it is .established that the visa issuing officer was not

aware of the respondent's prior removal from the United States.

Finally, in this connection, the respondent has admitted that he did

not inform the Consul of his "removaP' because: "I believed it

would be held against nie" (Ex. 4, p. 6).

The foregoing definitely demonstrates that we are not here con-

fronted with 9. situation involving a gross miscarriage of justice

resulting from actions of government officials. Rather, the respond-

ent's present problem has been brought on entirely by his own volun-

tary acts and/or deliberate withholding of essential information.'

As pointed out by the special inquiry officer, and for the reasons

set forth above, -the respondent is inadmissible to the United States

because the nonquota visa which he presented. on arrival was invalid.

Therefore, he is not admissible to the United States otherwise than

as an alien who lacks merely permission to apply for admission after

"removal." Therefore, under the law, he cannot be granted such

permission. •

In addition, such relief is not warranted as a matter of discretion.

Respondent's wife and child are in Egypt. He has been absent from

this country for a period. of El years following his request to be

removed herefrom at the expense of the- United. States Government.

When seeking to obtain-the visa which he was eventually issued

and used to gain his last entry, respondent deliberately withheld a

vital fact from the United States Consul. There appears to be no

reason why he cannot return to the same employment he had for

six years prior to his last entry—he has the same employer here.

The special inquiry officer .has granted the respondent's alterna-

tive request for voluntary departure, and the record before ns sup-

ports said official's action in this respect. The respondent's applica-

tion for temporary withholding of deportation to Egypt was aban-

doned. The question of whether or not re.siondent can qualify for

preference status, raised after the conclusion of oral argument, is

744

Interim Decision #1624

not material to the • issues involved here and, in any event, is

not properly before us for consideration. No other points having

been raised, and in view of the foregoing, the special inquiry officer's

decision is approved.

ORDER: It is ordered that the appeal be and the same is hereby

dismissed.

745