Interim Decision #1788

Interim Decision #1788

MATT= OF MESA

In Adjustment of Status Proceedings

A-12901500

A-12901289

Deoicled by Deputy Associate Commissioner September 6, 1967

While a Cuban refugee applicant for adjustment of status who falls within

the provisions of sections 212(a) (15) and 241(a) (8), Immigration and Nationality Act, pertaining to aliens likely to be, or who are, public charges, is

not thereby precluded from establishing statutory eligibility under section 1

of the Act of November 2, 1966 as an alien eligible to receive an immigrant

visa and admissible to the United States for permanent residence, such factors

may be considered in determining eligibility for such relief as a matter of

administrative discretion.

These cases are before us by certification, pursuant to 8 CFR

103.4, of the Southwest Regional Commissioner's decision denying the

aliens' applications for adjustment of status under section 1 of the

Act of November 2, 1966. The denial was based on a finding that the

applicants were inadmissible for permanent residence under section

212(a) (15) of the Immigration and Nationality Act, as persons likely

to become public charges, hence, statutorily ineligible for the status

sought. The decision will be reversed.

The applicants, husband. and wife, 55 and 01 years of age, respectively, are natives and citizens of Cuba. They were paroled into the

United States as refugees from Cuba on April 9, 1962. They have not

since departed from this country and are still in parole status. They

now seek a. change of status to that of permanent resident aliens.

In pertinent part, section 1 of the Act of November 2, 1966 reads

as follows :

". . . the status of any alien who is a native or citizen of Cuba and who has

been inspected and admitted or paroled into the United States subsequent to

January 1, 1959 and has been physically present in the United States for at

least two years, may be adjusted by the Attorney GeneraZ, in his discretion

and under such regulations as he may prescribe, to that of an alien lawfully

admitted for permanent residence if the alien snakes an application for such

adjustment, and the alien is eligible to receive an immigrant visa and is ad-

missible to the United States for permanent residence" (Emphasis supplied).

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Interim, Decision #1788

As the Regional Commissioner has acknowledged, the applicants

have satisfied the arrival and physical presence requirements of the

Act and have made application for such adjustment. However, the

Regional Commissioner has found that they have not met the terms of

the statute with respect to eligibility to receive an immigrant visa and

admissibility to the United States in that they are presently public

charges and, as such, come within the proscriptive provisions of section 212(a) (15) of the Immigration and Nationality Act.

The facts are as follows. The applicants arrived in the United States

at Miami, Florida in April 1962 and thereafter relocated in San Francisco, California in July of that year. The applicants have acknowledged, and the record shows, that since their arrival in San Francisco

they have been jointly supported by funds in the amount of $165.00 a

month received from the San Francisco Department of Public Welfare. The record shows that these funds are furnished under that

Department's "Cuban program".

At the time of their departure from Cuba the husband was the

owner of a coffee roasting firm. Since their arrival in the United States

neither applicant has been employed. At an interview, in connection

with their applications, the husband stated that he was physically able

to work but had not been employed "on account of my age and also

due to my poorness in speaking the English language". Parenthetically, it is noted that the interview was conducted in the Spanish language. The husband stated, however, that they plan to return to Miami,

at which time they would give up their welfare assistance, where he

had offers of employment from two friends, one of whom was a painting contractor and the other the owner of a bakery. He added, "My

children are already permanent residents anti we wish ours too. In that

way we can get better jobs and be better citizens. I am grateful to this

country and by having my residence, I feel part of it."

The applicants, who reside with their married son and his wife and

child, stated that by joining funds received from the welfare department with the wages earned by their son, who has a modest job, they

are able to live comfortably. They have never sought financial assistance from any private organization. They stated that their daughterin law is also employed and during the absence of the son. and

daughter-in-law the applicants care for their granddaughter. The

applicants also have a married daughter who is employed, as is her

husband. This couple also have a child and do not contribute to the

support of the applicants. As previously indicated, both of the applicants married children have acquired lawful resident alien status.

The applicant husband stated that in the event the funds received

-

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Interim Decision #1788

from the welfare department were discontinued he is confident that

their children would take care of them.

Section 212(a) (15) of the Immigration and Nationality Act, a

ground for the exclusion of aliens, the provisions of which the Regional Commissioner has found to be a statutory bar to the granting

of these applications reads as follows:

Aliens who, in the opinion of the consular officer at the time of application for

a visa, or in the opinion of the Attorney General at the time of application for

admission, are likely at any time to become public charges;

A similar ground for the expulsion of aliens, is contained in section

241(a) (8) of that Act and reads:

in the opinion of the Attorney General, has within five years after entry become a public charge from causes not affirmatively shown to have arisen after

entry;

It is well settled that aliens who are likely to be, or who are, supported at the expense of the public }.cause of poverty or some physical

handicap come within the above statutory proscription. See Matter of

M

and Matter of T—? Accordingly, if the provisions of section

212(a) (15) , supra, apply to applicants for adjustment under section

1 of the Act of November 2, 1966, on the facts here these applicants

are, at present, statutorily ineligible for the status sought, as found

by the Regional Commissioner.

In that regard we also find it necessary to consider the above ground

for expulsion under section 241 (a) (8), supra, for the obvious reason

that it would be purposeless to find such applicants to be eligible for

visas and admissible and grant the applications for adjustment if the

factual situation showed that they would immediately thereafter become deportable under that expulsion provision. In fact, - it has been

held that such a situation would support a finding of inadmissibility

even though not a specific statutory ground for excludability.' Assuming arguendo, however, that such would not apply to this particular

expulsion ground, the sound exercise of discretion, provided for in the

Act of November 2, 1966, would generally warrant denial of an application if in fact the alien would be deportable thereunder.

The purpose of the Act upon which these applications are based

is to provide a ready means to permit certain Cuban refugees in the

United States to adjust to permanent resident status, in the discretion

of the Attorney General, if they are eligible to receive an immigrant

visa and are admissible for permanent residence. Many of these refugees are presently impoverished by force of circumstances beyond

their control and are dependent upon Federal assistance. A major ob—

1

2L &N.Dee.191; I:&N. Dec. 841.

Matter of V--,11. & N. Dec. 293 ; Matter of R

434

G

—

—

, 8 L & N. Dec.128.

Interim Decision #1788

jective of this opportunity for adjustment of status was, therefore,

to aid in these refugees' resettlement by enhancing their opportunity to

qualify for employment here and in turn reduce the Government's expenditures in their behalf .°

It. is axiomatic that laws remedial in nature, such as the Act under

discussion, should be construed liberally. This then becom es a question

of statutory interpretation of its qualifying terms relating to eligibility to receive a visa and admissibility to the United States with respect

to section 212(a) (15) and section 241 (a) (8), supra. As was pointed

out in Matter of S. S. Annik, 4 the primary rule in that regard is that

the intent of the legislation is to be carried out. The meaning of the

statute is to be found in its words, without resort to any materials

clehors the words of the statute itself, since it is presumed that the legis-

lature chose apt words to express its intention. But these rules of

statutory construction must yield in situations in which it can be

demonstrated that adherence to them would defeat the intention of the

legislature. It has been said that canons of construction were evolved

as aids in determining the intent of the legislature in enacting statutes,

not as limitations in determining such intention.°

S. S. Anna, supra, goes on to state that a well recognized basis for

departing from the rule that a statute must be given its strict literal

interpretation exists where application Of the rule would lead to an

absurd, unjust, or unreasonable result. One of the classic illustrations

of departure from the strict letter of a. statute is the case reported. in

Plowden, which held that the statute of King Edward II, which provided that a prisoner who breaks prison is guilty of a felony, did not

extend to a prisoner who breaks out because the prison was on fire—

"for he is not to be hanged because he would not stay to be burnt." °

We shall therefore briefly review the history of the legislation under

reference to determine whether strict literal application of the provisions mentioned would be consistent with the intent of the Congress.

'

Commencing early in 1959 the Cuban Government, under Fidel Castro,

turned that country into a Communist dominated area and enacted

laws confiscating private property and other legislation oppressing

H.R. Rep. No. 1978 89th Cong. 2d Sees. (9/1/66).

' 1 I. & N. Dec. 418 at 420.

° Barrett v. Van Pelt, 268 U.S. 85; Van Camp ce Sons Company v. American

Can Company, 278 U.S. 245; Daneiger v. Cooley, 248 U.S. 819; Boston Sand and

Gravel Company v. United States, 278 U.S. 41.

e United Ptatee v. Kirby, 7 Wall. 492.

• Except where otherwise indicated, the general reference sources are as fol.

lows: H.R. Rep. No. 1978, 89th Cong., 2d Sees. (9/1/68) ; S. Rep. No. 1675, 89th

Cong., 2d Bess. (10/4/66) ; 112 Cong. Rec. 170, pp. 24458-55 (10/6/68) ;112 Cong.

Rec. 158, pp. 21988-94 (9/10/68).

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the rights of its people. As a result, Cubans began to seek asylum in

the United States in ever increasing numbers. These refugees, in the

main, because of the circumstances of their departure arrived with

little in the way of money or valuables and most of those that were

fortunate enough to have either, soon found their assets exhausted.

As Miami, Florida was the most accessible port from that country, the

impact of this large number of Cuban refugees was first centered in

that State.

In early 1961, the late President John F. Kennedy directed the

establishment of a Cuban Refugee Program under the Department

of Health, Education and Welfare to alleviate the plight of these refugees. In June 1962 Congress enacted the Migration and Refugee Assistance Act of 1962 ' authorizing the President to, among other things,

render further assistance to qualified refugees who "are in urgent need

of assistance for the essentials of life." In addition to the latter, the Act

provides for assistance to State or local public agencies providing

services for qualified refugees; health and educational services; special training for employment and for the expense of transportation to,

and resettlement in, other areas of the United States, as well as other

benefits.

By Executive Order 11077, effective July 1, 1962, 9 implementation

of these aspects of that Act was assigned to the Secretary of Health,

Education and Welfare. This program has been continued under the

Cuban Refugee Program of that Department. 18

In general, financial assistance is furnished under this program by

the various State and municipal welfare departments who in turn are

reimbursed therefor from Federal funds provided for the program in

accordance with provisions of the Migration and Refugee Assistance

Act, supra. That Act does not foreclose the use of these funds for these

alien refugees after they have had their status adjusted to that of

lawful permanent residents and such financial or other assistance

necessary to the well being of these people is continued to be extended

where needed." The Committee reports clearly reflect that the Congress in considering the enactment of the Act of November 2, 1N6 was

deeply conscious of the financial plight of these people and a major

reason for the bill's enactment, as previously indicated, was to stabilize

these refugees' immigration status as an essential element toward

assisting them to become self-sufficient by removing or alleviating

P.L. 87-510.

'28 FR 629.

"Hearings: Subcommittee #1; House Committee on the Judiciary, A th Cong.,

2d Sens.. #20. August 10, 11 & 17, 1966 (pp. 49-71).

Cong. Rec. 170, p. 24454 (10/6/66) ; 112 Cong. Rec. 158, p. 21987 (9/19/00).

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Interim Decision #1788

some barriers to employment stemming from the lack of firm roots, and

thereby aid in reducing the Government's expenditures in their behalf.

It is clear from all of the foregoing that the Congress was keenly

aware of the need for and receipt of assistance, financial and otherwise,

by the beneficiaries of the then proposed legislation. Also, with regard

to possible deportability of Cuban recipients of financial assistance,

one of the cooperating voluntary social agencies expressed concern to

the Senate Subcommittee that because "'a Cuban refugee has been

receiving public assistance and support * * * through our Cuban

Refugee Program * * * they might be subject to deportation on the

basis of indigency. We would like to see that this situation should not

develop * * *". To which a committee member responded in pertinent

part, "" * the ha: .1 fact, * * * is that economic issues do not permit

the absorption of all these people, and the problem that you suggest

might cause trouble unless we anticipate it. It is a deportable thing,

I am told, for an alien. But I would be amazed if that rule of law was

ever applied in the circumstances we find existing there"."

We conclude that Congress, in setting out the requirement in the

Act of November 2, 1966 that an alien applicant be eligible for a visa

and admissible to this country, did not intend requiring application

of the provisions of section 212(a) (15) or section 241(a) (8) of the

Immigration and Nationality Act, supra, in light of the Congressional

history showing the recognized impoverished circumstances of many

of the refugees it proposed to benefit and the special legislation enacted

to render them Federal assistance. Otherwise, to apply those provisions

would have the effect of materially defeating the humanitarian purpose

for enactment of the Act. Indeed, President Lyndon B. Johnson, in

directing the waiver of permanent resident application fees stated that

he did so "on humanitarian grounds" in that "Cuba requires that refugees coming to this country turn over to the Cuban Government any

worldly assets they own before leaving the country. Most Cuban refugees are able to accumulate very few resources in a two-year period." "

It is found, therefore, that the statutory ground of ineligibility asserted by the Regional Commissioner is not sustained and that the

applicants are eligible for the status sought.

There remains a question as to whether the applications should be

granted as a matter of administrative discretion. The fact that the

above-cited exclusion and expulsion grounds are found not to be a

statutory bar does not necessarily preclude denial of an application as

"Hearings: Subcommittee on L & N., Senate Committee on the judiciary, 89th

Cong., 2d Sess., Vol. 1, August 16, 1966 (S. 1241, S. 3712), pp. 8647.

23 Presidential Documents, Monday, November 21, 1966, Vol. 2, No. 46, pp,

1682-83.

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a matter of discretion 14 if it is found, for example, that circumstances

with respect to the acceptance of public assistance were such that the

applicants were not deserving or that their presence here on a permanent basis would not otherwise be in the best interests of the United

States.

In the foregoing regard, the character of the subjects is unquestioned. It is noted that the monthly monetary amount they receive is

moderate and is supplemented by earnings of their son and daughterin-law, with whom they live; that the applicant husband is willing to

work but has been handicapped by the language barrier and that he has

actually taken action, apparently prior to the notice of denial of their

applications, to separate his wife and self from their children in order

to seek prospective employment in another area. Bearing in mind the

recognized fact that Cubans have a strongly family-centered culture ID

the latter evidences the sincere desire of the male applicant and his

spouse to be self-sustaining. In that regard we note his comments previously quoted. "My children are already permanent residents and we

wish ours too. In that way we can get better jobs and be better citizens.

I am very grateful to this country and by having my residence, I feel

part of it".

It is concluded that favorable exercise of discretion is warranted.

An appropriate order will be entered.

ft is ordered that the order of the Regional Commissioner be, and

hereby is, reversed and the applications granted.

" Compare Matter of H—R—,7 L & N. Dec. 651.

"Hearings: Subcommittee on 1. & N.. Senate Committee on the Judiciary,

89th Gong., 2d Sens., Vol. 1, August 16, 1966 (S. 1241, S. 3712), p.

438