Interim Decision #1266

Interim Decision #1266

MAT= OF TARABOOGHIA

In DEPORTATION Proceedings

A-7957351

Decided by Board February 11,1693

An anen lone entered the United States as a crewman', is uLatuLorlly iucligible

for suspension of deportation tinder the provisions of section 244(f) of the

Immigration and Nationality Act, as amended by section 4, Act of October 24,

1962, notwithstanding he had pending on the effective date of the amendment

an application Tor suspension of deportation.

CHARGE

Warrant: Act of 1924—Remained longer--crewman.

The ease comes forward on appeal from the decision of the special

inquiry officer entered November 29, 1962, finding the respondent subject to deportation on the charge stated above; holding that he is not

eligible for the discretionary relief of suspension of deportation because he entered as a seaman or crewman; granting him the privilege

of voluntary departure and providing for an automatic order of deportation should he fail to depart; and further directing that if Aus-

tralia, the country the respondent designated as the place of deportation, is unwilling to accept the respondent, he should then be deported

to Italy.

The record relates to a 49-year-old married male alien, who was

born in Sansego, Italy, which later became Yugoslavia, and who is

presently stateless. His last and only entry into the United States occurred at Newport News, Virginia, on February 27, 1951, "SS Brazil"

when he was admitted under section 8(5) of the Act of 1924 as a

seaman. He has since remained in the United States. The charge

of deportability is established.

The warrant of arrest was originally served on respondent on

October 10, 1952, and he was accorded a hearing on November 19,

1952. The special inquiry officer found him deportable as charged

in the warrant of arrest, denied the application for suspension of deportation inasmuch as the respondent at that time had resided in the

United States only two years, had no family ties in this country and

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•

was not eligible for that form of discretionary relief. The special

inquiry officer denied applications for voluntary departure and preexamination or voluntary departure alone. On June 17, 1953, this

Board dismissed the appeal from the decision of the hearing officer.

On January 31, 1958, this Board dismissed a motion to reopen for the

reason that the motion was unsupported by evidentiary data or points

of law or precedents to support the motion to reopen for suspension

of deportation under 8 U.S.C. 1254(a) (1) of the Immigration and

Nationality Act of 1952 or, in the alternative for the purpose of pre.examination. On May 8, 1958, the Acting Regional Commissioner,

Northeast Region, Burlington, Vermont denied respondent's application for stay of deportation pursuant to section 243 (h) of the Immigration and Nationality Act for failure to establish that the applicant would be subjected to physical persecution if returned to the country to which his deportation was designated, to wit, Italy. On March

24, 1961, a motion requesting that the outstanding order of deportation

be set aside and the proceedings be reopened to permit application for

suspension of deportation under section 244(a) (5) of the Immigration

and Nationality Act was denied for the reason that the motion was not

properly supported. On March 1, 1962, this Board granted the motion to reopen to permit the respondent to apply for suspension of

deportation.

On the issue of discretionary relief it has been established that the

respondent has resided in the United States continuously since his

entry on February 27, 1951, as a seaman. When he first made application for suspension of deportation under section 19(c) (2) of the

Immigration Act of 1917 (8 U.S.C. 155) being on November 19, 1952,

respondent was clearly ineligible because he had no close family ties

in the United States who were dependent upon him for support and

he had not been in this country for a period of seven years; nor did ho

possess those qualifications on December 24, 1952, the date the Immigration Act of 1917 was repealed.

The respondent's present application for suspension of deportation

under section 244 of the Immigration and Nationality Act was made

during the course of the reopened hearing on March 16, 1962. The

hearings were concluded on May 23, 1962. The decision of the special

inquiry officer was handed down on November 29, 1962. In the meantime there had been enacted on October 24, 1962, Public Law 87-885

<76 Stat. 1247). Section 4 of Public Law 87-885 amended section 244

of the Immigration and Nationality Act (8 U.S.C. 1254) by streamlining or condensing the five subsections of section 244(a) into two

subsections; and added paragraph (f) which provides that no provision of this section shall be .applicable to an alien who (1) entered

the United States as a crewman; * ". The special inquiry officer

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held that applications previously made under section 244(a) (1)

through (5) prior to October 24, 1962, have not been preserved and

that he was required to determine the respondent's application for

suspension of deportation under section 241 as presently amended.

Inasmuch as that section specifically provided that suspension of deportation should not be granted to an alien who entered the United

States as a crewman which, by definition in section 101 (a) (10) of the

Act includes a seaman, and inasmuch as the respondent had entered

the United States as a seaman, the special inquiry officer concluded he

fell within this terminology and was barred from suspension of

deportation.

Counsel for the respondent has filed a brief in which he contends

that the amendment of section 244 by section 4of Public Law 81-885 on

October 24, 1962, was prospective in nature and applied only to future

crewman arrivals and not to all persons in that category already in the

United States; and that this respondent, who was already deportable,

was not affected by the new Act. Counsel also argues that under the

savings clause, section 405(a) of the Act, the present application for

suspension of deportation as well as the one made before the effective

date of the 1952 Act should be and are preserved and that the respondent should be found statutorily eligible for the relief of suspension

of deportation. Counsel also states that the respondent, being statutorily eligible, should be granted the discretionary relief requested.

Public Law 87-885 approved October 24, 1962 (76 Stat. 1247)

originated as Senate Bill S. 3361 to facilitate the entry of alien skilled

specialists and certain relatives of United States citizens and for

other purposes. The legislative history of the bill, as finally reported

in the statement. of the Managers on the part of the House, shows that

agreement was reached by the Committee of Conference with regard

to the House amendment numbered 1 to amend the language of section

4 of the Senate Bill to achieve the purpose envisioned by the Senate

in a modified manner. As intended by the Senate, relief would have

been granted to certain aliens physically present in the United States,

but that under the language agreed to by the Committee of Conference,

the granting of relief would be subject to _Congressional review and

it would be predicated on the showing of specified type and degree of

personal hardship which might occur in the absence of such relief.

The amended language specifically excluded the granting of relief to

alien crewman (seaman and airman) and to persons who entered the

United States under educational exchange programs: In commenting

1 18 II.S.C. COW, LE Adm. News, 5488-5489 (87th Cong. 2d Sess. November 5,

1962) : 108 Congressional Record 21981—Conference Report No. 2552 (daily ed.

October 11, 1902).

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on the Bill, Mr. Walter and Mr. Feighan stated that the basic

principles of a sound immigration policy, in the continuous concern

to preserve the integrity of the very important international educational exchange program, caused the conferees to exclude from the

benefits of this legislation those aliens who entered the United States

as crewmen or exchange visitors. 2 Mr. Mansfield commented that section 4 of the Bill, as agreed upon by the conferees, is in the nature of

a substitute for the provisions contained in the Senate version of the

Bill which would have permitted the Attorney General to create a

record for permanent residence in the cases of certain aliens who

entered the United States prior to October 24, 1952; that section 4

now provides a procedure within the framework of the suspension of

deportation procedures presently contained in section 244 of the Immigration and Nationality Act, and that the aliens affected would be

granted substantially the same relief that they would have received

under the provisions of section 4 of the Senate version of the Bill, with

a requirement that the action of the Attorney General in suspending

deportation be reported to Congress for approval. Mr. Seating stated

that the Conference version of section 244 has continuing future

applicability to any alien who can satisfy either the 7 or the 10 year

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-

physical presence requirements in addition to other criteria for suspension of deportation.2

It is believed that the decision of the special inquiry officer should

be affirmed for the reasons set forth in the case of Fassilie, CateZdo

and Fevola v. Evenly, 301 F. 2d 429 (2d. Cir. March 12, 1962). In

that case the aliens involved had entered the United States on January

29, 1960, January 14, 1956 and sometime prior to July 14, 1960, respectively, all of the aliens entering this country in the status of crewmen. The District Judge granted defendant's motion against Fassilis

on two theories first, that there was no abuse by the administrative

officials of the discretion given by the statute; and, second, that the

July 14, 1960 amendment to section 245 of the Immigration and Nationality Act that became law while the administrative appeal was

pending precluded crewmen after that date from obtaining permanent

residence status under that section' On appeal, the Circuit Court

stated that there was a statutory change between the filing of the

appellants' applications and the ultimate administrative deeision disposing of these applications. (The decision of the District Director

as affirmed by the Regional Commissioner made no reference to the

statutory change enacted on July 14, 1960, excluding crewmen from

—

108 Congressional Record 22153 (daily ed. October 12, 1962).

" Volume 108 Congressional Record 22109 (daily ed. October 13, 1962).

192 F. Supp. 884 (S.D.N.Y., 1961).

2

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the benefits of adjustment of status under section 245 (a) of the Immigration and Nationality Act.) The court pointed out that the

amendment of July 14, 1960, was not being applied retroactively and

that while the appellants' applications were still subject to administrative adjudication, the appellants had no established right to the

future status that they were seeking to obtain by their applications,

especially since the statute involved made the granting of such applications a matter wholly within the discretion of the Service. The court

further stated that the aliens in that case had acquired no status prior

to the amendment that they were deprived of by the amendment, for

the status each of them sought the agency to award them was not

acquirable until final administrative action upon their applications.

The court noted, that although not determinative of the result, it was

not without significance that when Congress amended section 245 of

the Immigration and Nationality Act of 1952, to preclude its application to crewmen, it did not enact a savings clause (section 405(a) )

to protect pending administrative proceedings as it had done when that

Act was adopted. The court concluded that it affirmed the decisions

of the District Director on the ground that the Commissioner was

required. by the new amendment to deny the applications and since

the result reached by the Commissioner was one over which he had no

discretion, it was unnecessary to decide whether he properly exercised

the discretion which he erroneously believed himself to have.

We find the reasoning of the Faesilis case, supra., equally applicable

to the circumstances of the case before us. Here, the respondent was

still the subject of administrative adjudication and had not established any right to the future status he was seeking to obtain by his

application. No savings clause was enacted as a part of the amendment

of section 244 by the Act of October 24, 1962. The exclusion of relief

under section 244 applies to crewmen and exchange visitors as the

result of an announced public policy on the part of Congress. The

same exclusion from the benefits of adjustment of status under section

245 of the Immigration Act of 1952 had previously been embodied in

the amendment thereto by the Act of July 14, 1960, which likewise

excluded alien crewmen from the benefits thereof. The law expresses

a clear Congressional policy and intent to exclude alien crewmen from

the benefits of the remedial legislation contained in sections 244 and

245 of the Immigration and Nationality Act. Inasmuch as in the

case of suspension of deportation, a favorable order would still require

a reference to Congress, it would appear incongruous to hold crewmen

eligible for a benefit from which Congress has specifically prescribed

their exclusion.'

5

Cf. U.S. or rel. Hintopoulos et al. v. Shan qknesay, 353 U.S. 72.

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For the reasons set forth at length in the foregoing discussion, we

concur in the opinion of the special inquiry officer that the respondent,

who entered the United States as a crewman, is not eligible for adjust

ment of status under section 244(a) of the Immigration and Nation-

ality Act because of the exclusion of crewmen from the benefits of that

Act by the Act of October 24,1962 (Public Law 87-885) . The appeal

will be dismissed.

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

dismissed.

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