Interim Decision #1515

Interim Decision #1515

MATTER

.or DE Lirmt*

In Deportation Proceedings

A-11129289

Decided by Board April 21, 1966

(1) Claim of prejudgment is rejected absent evidence the outstanding order

of the Attorney General has not been followed which directs all Service Ind

Board officers exercising hearing powers to use their "Independent judgment" and "give each alien a fair and impartial tria:without prejudgment."

(2) Alleged undue publicity in the press does not preclude a fair deportation

hearing; neither does Government refusal to permit counsel for respondent

to review a character investigation report, not introduced into evidence; nor

does denial of respondent's request to subpoena certain Government officials

where it is clear from the record their testimony would not have been relevant to the issues of relief under sections 249, 212(h) and 243(h).

(3) In finding a lack of good moral character for the purpose1 of section 249

of the Act, the special inquiry officer did not err in considering respondent'' ,

ilegambnctvsi1962,hmpronetfJuly193Odeber 1961, and his failure to testify truthfully during the reopened hearing.

(4) Notwithstanding respondent's long residence and close family ties in the

United States, since the creation of a record of admission for permanent

residence pursuant to section 249 of the Act, as amended, is a matter of

administrative grace, his application therefor is denied where he has submitted no afflrmative emaenee or nix genuine reformation or rehablittatiOn

and by his equivocal answers and his refusal to answer relevant questions

during the hearing he has failed. to 'come forward with full information

within his knoWledge regarding his. activities which has a direct bearing on

his application.

(5) Reopening of proceedings for the introduction of additional evidence on the issue of political persecution is denied as no purpose would be served

thereby since ample evidence of record affirmatively establishes that respondent, if deported to Italy, would not be subject to persecution within the

meaning of section 243(h) of the Aet, as amended by Public Law 89-236,

because of his •criminal

record in the United States.

••

,

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■

OnenaEs •

Order: Act of 1952--Section 241(a) (1) 18 U.S.O. 1251(a) (1)3—Excludable

' by the law existing at the time of entry, to wit: a

*Affirmed, Le Lucia v. immigration and Naturatientjan Service, 370 F.2d 305

(0.A. T, 1966).

565

Interim Decision #1575

person who has not presented an unexpired passport

or official document in the nature of a passport

issued by the government to which he owes allegiance, or other travel document showing his origin

and identity, as required by the Passport Act of

May 22, 1918, and the Executive Order in effect at

the time of entry.

Act of 1952—Section 241(a) (1) [8 U.S.O. 1251(a) (1)]=Excludable

by the law existing at the time of such entry, to

wit: a person who has been convicted of a felony or

other crime or misdemeanor involving moral turpitude prior to entry into the rnited States, under

section 3 of the Act of February 5, 1.017, -to wit:

voluntary homicide.

The respondent is a native of Italy. He has been found deportable under the provisions of section 241(a) (1) of the Immigration

and Nationality, Act as an alien who was excludable at the time of

entry, in that, he did not present the required immigration documents

and had been convicted of a crime involving moral turpitude prior

to entry, to wit, voluntary homicide (8 U.S.C. 1251(a) (1) ).

The case was last before us in September of 1064. An order -en-

tered on that occasion granted. the respondent's motion to reopen the

proceedings. for the "limited purposes" mentioned in. a stipulation

between opposing counsel which was approved by the Court of Appeals for the Seventh Circuit on August 27, 1964. Pursuant to the

Board's order, reopened hearings. were accorded the respondent in '

November 1964, February, March and June 1965.

The respondent has applied for the creatiqn of a record of his lawful entry pursuant to section 249 of the Immigration and Nation-

ality Act (8 U.S.C. 1259) ; a waiver of the criminal ground of inad- .

missibility under section 212(h) of the Immigration and Nationality Act, as amended (8 U.S.C. I182(h)) 'which if granted would

remove an existing bar to relief under section 249 (supra) and the

withholding of his deportation to Italy under the provisions of section 243(h) of the Immigration and Nationality Act (8 V.S.C.

1253(h)'). The 'special inquiry officer in an circler entered on October 25, 1965 denied the respondent's applications for discretionary

relief and ordered his deportation to England. An alternative order

The "limited purposes" set forth in the stipulation provide in substance that

the case be remanded to the Board of Immigration Appeals on motion to reopen "solely for the purpose of presenting to a special inquiry officer (the

respondent's) application for relief under section 243(h) of the Immigration

and Nationality Act and for any other discretionary relief to which he deems

himself entitled and to have the special inquiry officer designate the country to

which deportation shall be effected." There is also a provision in the stipulition which provides that the respondent will waive any discretionary relief

now minable to him foi.•which he does not apply during the reopened hearing.

566

Interim Decision #1575

of deportation to Italy was also entered if England is unwilling to

accept him. The respondent's appeal from this order is now before

us.

'The respondent is a male alien, 67 years of acce. He last entered

theVnited States through the port of New York on August 12, 1920.

He was found deportable in 1959 as an alien who had entered the

United States without proper documents and as an alien who had

been convicted of voluntary homicide in 1917,' a crime involving

moral turpitude committed prior to entry: The order of deportation was affirmed, by the Circuit Court of Appeals for the Seventh

Circuit in 1961. De Lucia v. Flagg, 297 F.2d 58, cert. den. 369 13.S.

837. The respondent is married to a lawfully resident alien and is

the father of two male American citizen children; veterans of World

War II and a -female American child, the mother of his five grandchildren.

The record created during the reopened' hearings consists of some

370 pages of testimony and more than 130 exhibits. Extensive briefs

and supplemental briefs submitted by counsel for the alien and the

Deputy General Counsel of the Immigration Service are before us

for consideration. The record, the briefs and oral argument }rave

been thoroughly reviewed. Our decision, however, will be limited

solely to a determination of whether the respondent has been accorded a fair hearing and to a determination. of whether an exercise

of the Attorney General's discretion is warranted with respect to

relief under sections 249, 212(h) and 243(h) of the Immigration

and Nationality Act (sutra):

THE ISSUE OF WHETHER TEE RESPONDENT HAS BEEN

ACCORDED A FAIR HEARING

Counsel for the respondent maintains that his client has not been

accorded a fair hearing during the reopened proceeding. He alleges

that the special inquiry officer prejudged the respondent's applications for discretionary relief; that respondent's case has been prejudiced by undue publicity in the press; that there was prejudicial

error in that respondent was not permitted to examine a. character

investigation report and that favoritism was shown the G-ovirriment in the issuance of subpoenas and during the cross-examination

of the respondent whereas respondent's request to subpoena certain

local and Government officials and to cross-examine Government

witnesses was, wholly denied or extremely limited.

We find no substance to counsel's claim that the respondent has

been denied a fair hearing on his applications for. discretionary

relief.

567

Interim. Decision #1575

The respondent supports his claim of -prejudgment by a series 'of

exhibits (A 106 through. 124) which he alleges establish that all

Attorneys General since May of 1952 and some of the Commissioners

of Immigration and Naturalization have stressed the desirability of

giving top priority to the deportation of aliens alleged to be in a

class referred to as "racketeers." Counsel argues that published

statements of the various Attorneys General including the incumbent

Attorney General and certain Commissioners of Immigration and

Naturalization have committed officers within the Immigration

Service to an adverse course of action and bias against any alien

purported to be within the so-called "racketeer" .class.

Similar .claims have been made in previous cases decided by this

Board.2 S WI claims have been supported with some of the documentary eiddence now before us. There was a claim of prejudgment

the Accartli and Marcello cases when they were before the Su

preme Court of the United States.. The claim of prejudgment was

ill

rejected in both instances.'

We reject the claim of prejudgment in the instant case for the

reason that respondent has failed to introduce any substantial evidence that the incumbent Attorney General or the incumbent Commissioner of Immigration and Naturalization has issued an expressed

or implied directive to rule adversely on the respondent's applications for discretionary relief. In fact, there is an outstanding order

of the Attorney General, issued April 23, 1954, which directs all

officers exereisitg hearing powers in the Immigration Service and

the Board of Immigration Appeals to exercise their power "fully and

faithfully" and use their "independent judgment and . . . discretion

as the regulations confer upon them . . . Those charged with the

duty of hearing and deciding (cases) must give each alien a 'air

and impartial trial without prejudgment ..." 6 We find no evidence

that the order of the Attorney General has not been followed in this

proceeding.

Counsel argues that the respondent is entitled to an evidentiary

administrative hearing solely on the issue, of prejudgment of his applications for discretionary relief. He relies on. a decision by the

June 1953.

." Matter of Marcella, 5 I. & N. Dec. 261,

shouchneasy v. Amara, 349 U.S. 280 (1955) ; Moreau v. Bonds, 349 U.S.

302 (1955)

`At this stage of the proceeding counsel has made no claim that the Board of

Immigration Appeals has prejudged the respondent's applications for discretionary relief. The Board is not bound .by the special inquiry officer's order

and has full power of decision on issues of fact, law or discretion. Cf. Matter

of B—, 7 I. & N. Dec. 1 (A.G., 1956).

s See Order No. 48 54 of the Attorney General ente ed as Exhibit A 11.

,

r

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568

Interim bepision. *1575

Circuit Court of Appeals for the District of Columbia in the case'bf

Bufalino v. Kennedy, 322 F.2d 1016 (June 1963) and a recent order

of Judge Oliver Gasch of the United States District Court for the

• District of. Columbia signed on February 23, 1966 (Civil Action No

486-61).

We find counsel's plea for a separate • evidentiary hearing on the

- issue of prejudgment without substance. Counsel has made no claim

that this Board has prejudged the respondent's applications for discretionary relief. This Board has full power of decision with regard

to the special inquiry officer's interpretation of the law, the facts and

the exorcise of the discretionary relief the respondent seeks.

Furthermore, the instant case is distinguishable from Buff alino

(supra). Bufalino's applications for relief under sections 249 and

243(h) of the Inamigrition. and Nationality Act were denied by the

District Director at Philadelphia, Pennsylvania and his order was

thereafter affirmed by the Regional Commissioner. Both of these

officials are charged with enforcement duties. The action' here under

considerition has been taken and is being reviewed by officials of the

Department of Justice who are concerned solely with adjudicative

functions and the record contains a specific directive of the Attorney

General which commands these officials to exercise their own independent judgment and give each alien a fair and impartial hearing

without prejudgMent (supra s) . There has been no judicial finding

in the case before us that a prima fade case of prejudgment has been

presented by the present record.• We find no substance to counsel's

plea for a separate evidentiary hearing on the issue of prejudgment

in light of our review of the record before us.

Counsel also maintains that the respondent's hearing has been

rendered unfair and that his applications for relief have been prejudiced by the fact that the case has received undue publicity in the

press. 8 OFIt'242.16(a) provides in part that "Deportation hearings shall be open to the public, except that the special inquiry officer

may, in his discretion and for the purpose of protecting witnesses,

respondents, or the public interest, direct that the general public or

particular individuals shall be excluded from the hearing in any

specific case." We find nothing in the record. which indicates that

counsel for the respondent requested a closed hearing for the purpose

of proticting the respondent or any of his witnesses from any undue

Publicity which a: case such as this would normally produce.

Counsel alleges that thi publicity in this case created such an atmosphere that the "fountain of justice was poisoned at its source

. . -Before the hearing began" (record of oral argument, p. 3) and

• that under these circumstances it was impossible for the special in,569

Interim Decision #1575

quiry officer to give the respondent a, fair hearing. Again, counsel

has submitted no substantial evidence to support his allegations. At •

page 220 of the transcript -of the record, the special inquiry.officer

stated, "I intend to make my decision in this matter on the evidence

in the record and not on the basis of any newspaper stories ... this

matter is not being tried before a jilry, and I'm, the person that (is)

going to consider the evidence." At page 376 0 of the record, the

special inquiry officer made a similar statement when denying counsel's motion for a change of venue. At page 29 of his opinion the

special inquiry officer stated he would disregard. "preis releases and

newspaper reports relating to the respondent (and) submitted, by raspondent's counsel."

Counsel asserts that the respondent has been prejudiced and his

hearing rendered unfair by reason of the fact th)t the Government

refused to permit examination of a character investigation which the

trial attorney concedes was intensive but which Was not offered in

evidence by the Government. Counsel maintains that an intensive

examination of the respondent could not fail to develop some favorable factors- in support of his (respondent's) application for discretionary relief. Counsel takes the position that "fair.play" requires

the Government to present all the evidence at its disposal and that

the Government should. not' e a party to the suppression of evidence.

An, alien who applies for discretionary relief •has the burden of

establishing his eligibility therefor. Matter of T—A.5-1 7---,7 I. & N.

Dec. 582, B.LA. (September 1957) ; Matter of 7—, 7 L & N. Dec.

697, M.A. (March 1958). • The trial attorney stated for the record s

that there was "no favorable evidence that I know• of'‘(presumably

in the character investigation report) and that counsel for the-respondent was "at liberty to introduce any .favorable evidence (that he

felt would) help (his) cam!' (R pp: 253-254) The respondent did

not produce a single character witness to support. his claim of good

character. Since the Government did not introduce the character

report in evidence, counsel for the respondent was not entitled. to

review it. '

Respondent, through counsel, asserts that he was not accorded

equal treatment with the Government in that his requests for the

subpoenas of witnesses were wholly denied. whereas the Government's

written application for subpoenas submitted. in advance of the hearing was graiited. As we view the record there has been full Compliance with 8- CFR 287.4, the regulation governing the issue of subpoenas. We note that the Government did not call any of the witnesses who had been subpoenaed prior to the start of the hearing.

We find no error in the special inquiry officer's denial of respond570

. • Interim Decision #1575

ant's request to subpoena certain Government officials since it is

clear frcira e the record that their testimony would not have been

relevant to the issues of relief under sections 249, 212(h) and 213(h)

of the immigration. and Nationality Aet and would have only cluttered the record with negative evidence.

Counsel asserts that the Government was. permitted unlimited

cross-examination of the respondent whereas had' the respondent

sought to recall an adverse witness he would have been severely limited (R-255, et seq.). He maintains 'that the respondent had been

thoroughly cross-examined on three days by the original trial attorney and that tho substitute trial attorney sought to reexamine him on

matters already in the record. Section 242(b) of the Immigration

and Nationality Act (8•U.S.C. 1252(b)) provides the special inquiry

officer with ample authority to permit such cross-examination of an

alien as he deems appropriate for a proper disposition of the case.

Where the exercise of discretion is the issue before the special inquiry

officer,,he is pernxitted wide latitude in seeking the truth and exposing falsehood. We find no substance to counsel's allegations that the

special inquiry officer's rulings in this area denied the 'respondent a.

fair hearing. Cf. Matter of S—, 5 L & N. Dec. 60, 33.I.A., January

1953; Matter of T , 9 I. & N. Dec. 646, May 1962.

—

CREATION OF A RECORD OF LAWFUL ADMISSION UNDER SECTION

'249 OF THE IMMIGRATION AND NATIONALITY ACT, AS AMENDED,

AND WAIVER. OF THE CRIMINAL GROUND OF EXCLUSION PURSUANT 'TO, SECTION 212(h). 'OF THE SAME ACT (AS AMENDED) (g

U.S.C. 1259 AND 1182(h))

.

The respondent seeks to set aside the outstanding order of deportation by the exercise of the discretion granted the Attorney General

pursuant to section 249 of the Immigration and Nationality Act, as

amended (8 U.S.C. 1259). This provision of, the statute authorizes

the Attorney General, "in his discretion," to create a record of lawful

admission in the case of any alien who has "no, such record ... otherwise available and who—

(a) entered the United States prior to June 30, 1948;

(b) has had his residence in the United States eontinuously:since

such entry;

(a) is a person of good moral character; and

(d) is not ineligible to citizenship; . . . provided the alien 'is not•

inadmissible under section 212(a) in so far as it relates to

criminals, procurers and other immoral persons . .

e

° There . are other classes of inadmissible aliens not pertinent here.

571

Interim Decision #1575

In conjunction with an application for the creation of a record of

lawful admission an otherwise eligible alien who is inadmissible as

n criminal under paragraph (9) of section 212(a) of the Act "may

request a waiver of such ground of inadmissibility pursuant to the

provisions of section 212(h) of the Act, as amended" (8 CFR 249.1).

The respondent meets the statutory requirements of section 249 of

the Immigration and Nationality Act in so far as they relate to the

nonexistence of a record of his lawful admission for permanent residence; his entry prior to June 30, 1948; his continuous residence in

the United States subsequent to such entry and his eligibility for

citizenship. The only issues before us in connection with the eligibility of the respondent is whether he is a: personof good moral character and warrants an adjustment of his immigration status as a matter

of discretion.

The respondent has the burden of establishing that he is eligible

for the relief he seeks and that he should be granted such relief in

the exercise of the Attorney General's discretion (8 CFR 242.17(d) ).

The special inquiry officer finds that the respondent has not met this

burden.

When an alien seeks the favorable exercise of the. Attorney Gen-

eral's discretion, it is incumbent upon him to supply such inforination that is within his knowledge and is relevant and material to a

determination of whether he is a person of good moral character

(of. Matter of Amando Afariani, Int. Dec. No. 1478, B.1.1., June 8,

1965; Kim v. Rosenberg, 363 U.S. 405, 42 L.ed. 2d 1299 (1960) ;

Mated Stater,' v. Anastasio, 120 F. Supp. 435 (D.C. N.Y., April 1954),

reversed on other grounds 226 F.2d 912, cert. den. 351 U.S. 931).

The special inquiry officer concludes that the respondent has not

established that he is a person of good moral character and accordingly is not statutorily eligible for relief under section 249 of the

Immigration and Nationality Act, as amended. The evidence supporting this conclusion is fully set forth in the special inquiry officer's

opinion of October 25, 1965. It is incorporated herein by reference

and will not be repeated.

The special inquiry officer refers to three basic reasons for denying

respondent's application for relief under section 249 (supra-). He is

convinced that the respondent did not testify truthfully during the

reopened hearings. He gives considerable weight to the fact that the

respondent was in prison for over 20 months during the five-year

period immediately preceding the filing of his application under section 249 and he gives weight to the respondent's admitted large -- scale,

illegal gambling activity 111_1962 (p.. 40, special inquiry officer

opinion).

572

- Interim Decision #1575

During the course of the -hearing, the respondent on numerous occasions, on advice•oPcounsel, refused to comply with the special inquiry officer's directive that he respond to questions concerning his

assets, income and activities (R pp_ 54 339). For example, the

respondent refused to answer relevant questions concerning his criminal convictions in Italy (pp. 269-272) ; his entry into the -United

States under an assumed name (pp. 272-274) ; his fraudulent naturalization (pp. 276-282) ; his conviction in-1944 for conspiracy '

to commit extortion (pp. 282-284) ; his conviction for income tat

evasion in 1957 (pp. 286-288) ; and the source and nature of his income over a period of 36 years (pp. 289-293-297-298). Furthermore, the respondent gave equivocal answers to many questions which should have been within his knowledge and which we

deem relevant to a determination. of 'whether discretionary relief is

-

warranted. He did not remember in whose names some $64,000 in

Government bonds were held at the time he entered jail—"I think

they were in my name or my wife . I don't 'remember." He did

not remember financial transactions involving large sums of money

which occured while he was in jail and which were reported on his

1961 tax returns (pp.. 307-310).

When questioned as to "Where did the money come from to buy

the bonds?" the respondent answered, "I don't remember buying

any bonds." (pp. 311, 312) and he could not explain-how he could,,

make such large financial transactions while he was in jail (p. 316).

He refused to explain where he obtained $101,000 in cash to pay his

income taxes for 1948, 1949 . and 1950 (p. 317). He refused to explain the nature of some $89,000 listed as miscellaneous income in his

1964 income tax returns (p. 318). He declined to furnish a break

down of his race track winnings for 1964 (p. 320) and also refused

to answer the question, "During 1964 did you receive payments of

any kind from any person, group or organization other than the interest payments and the race track winnings listed as miscellaneous

income on your 1964 income tax return?" (p. 324) He refused to

bring in his personal records of the income he received during the

past three years . although he admitted keeping such record (p. 327).

The respondent in-answer to a question which referred to the fact

that he won approximately $91,000 in a period of one and a half

months preceding the time he went to jail testified, "I can't help it

if I win in 30 or 60 days $91,000." (p.s334435)

The respondent's refusal to furnish information which is peculiarly within his knowledge is a factor which may be considered by •

the special inquiry officer in exercising the Attorney General's

ereticm. (Int. Dee. No. 1478, supra).

573

An alien seeking a favorable

Interim Decision #1575',

exercise -of discretion cannot limit the inquiry to the favorable as-

pects of the case and reserve the right to be silent on the unfavorable

aspects. Matter of Y—, 7 I. & N. Dec. 697, 700, B.I.A., March 26,

1958. We 'find on this record a sound: basis for the special inquiry

officer's conclusion that the respondent did not testify honestly and

truthfully and was concealing facts within his knowledge.

Counsel urges that the respondent's illegal gambling activities in

1962 furnishes no basis for the special inquiry officer's conclusion

that the respondent is not a person of good moral character. While

it is true that section 219 of the Immigration and Nationality Act, as

amended, does not require an applicant for relief to establish good

moral character for any specified period of time, nevertheless, we

believe that an illegal $10,000 bet on the World Series and an illegal

$15,000 wager on a prize fight in 1862 are factors properly considered by the special inquiry officer in reaching a conclusion as to-iiiilther the respondent is a person of good moral character (11-pp. 130131). The respondent, in fact, testified that for, most of his life he

has derived his income principally from betting on horse races (pp.

97 & 98). According to the record his last.profitable employment asthe owner of a business was in 1922-1923 when he operated a restaurant (p. 165). We find no error on the part of the special inquiry officer in considering the respondent's illegal gambling activities as a factor, in reaching a conclusion that relief is not warranted

on this record.

Counsel maintains that the respondent's incarceration from July

1, 1959 until his release on parole in October of 19'61 is not a factor-

which should be considered by the special inquiry officer in reaching

a conclusion as to whether respondent is a person of good moral

character because section 249 only requires a finding of present good.

moral character. We. do not agree with counsel? Section 101(f)

of the. Immigration and Nationality Act (8 U.S.C. 1101(f)) is the

congressional expression of standards which must be adhered to in

making a finding of good moral character "for the purpose of this

Act," namely, the Immigration and Nationality Act. The statuteI Section 101(f) of the Immigration and Nationality Act reads in part as follows: For the purpogea of this Act—)To person shall be regarded as, or found

to be, person of good moral character 'who, during the period for which

good -morel character is required to be established, is or was (7) one who

during such period has been confined, as a. result of conviction, to a

penal institution for an aggregate period of one hundred and eighty daysor more, regardless of whether the offense, or Offenses, for which he had been

confined were committed within or withdut such period.' (Bmphasis supplied.).

574

Interim Decision #1575

provides the special inquiry officer with the alternative . of making a

finding of good. moral character as well as an expression of whether

he "regards" the person seeking discretiongry relief to be a person of

.rood moral character. It has been held that the standards set forth

in section 101(f) (supra). should be taken into consideration, along

with other factors, in determining whether the requirement of good

Moral character has been met. Matter of P.—, 8 I. & N. Dec. 167,

169 (1958).

We realize that good moral character does not mean moral excellence. We are also aware of the fact that moral standards differ

from time to time and from place to place. We do not believe that

a person's good moral .character is lost by a single lapse .over an

atended period of time. This respondent, however, has made no attempt to introduce evidence which would establish that he measures

up to the standard of the average Ameiican citizen as it exists today_

It mulct be said that on this record thirespondent's reputation would

pass muster with that of an average man or that he is regarded as a

person of good moral- character.

While there is substantial evidence which supports the special inquiry odder's finding that the respondent is not a person of good

moral, character and therefore statutorily ineligible for relief under

section 249, we prefer to deny relief as a matter of administrative

discretion for the reason that the respondent, as an applicant for administrative grace, has not come forward with full information that,

_is within his knowledge. The information sought hai a direct bearing on his application for relief under section 249 of the Immigration

and Nationality Act, as amended (supra). An applicant for the

creation of a record of his lawful admission for permarient residence

has the burden of satisfying the Attorney General that an exercise

of discretion is warranted. Under the circumstances, he must, upon

the request of the Attorney General or some one acting for him,

supply such information that is within his knowledge and has a direct bearing on his eligibility for relief under the statute. We w,i,;11

deny the respondent's application for relief under section 249 of the

Immigration and Nationality Act, as amended, as a matter of administrative discretion.

The need for a wailer of the criminal grounds of inadmissibility

under section 2124h) no longer exists because the record of the respondent's lawful admission for permanent residence will not be

treated. Under the circumstances, the respondent's application for

relief under section 212(h) of the Immigration and Nationality Act

becoMes moot.

575

Interim Decision' #1575

•

THE APPLICATION FOR A STAY OF DEPORTATION UNDER SECTION

243(h) OF THE IMMIGRATION AND NATIONALITY ACT (8 U.S.C.

1253(h))•

Pursuant to section 243(a) of the Immigration and Nationality

Act, the respondent designated England as the country to which he

wished to be deported in the event an order of deportation was entered (p. '29). The order entered by the special inquiry officer on

. October 25, 1965 directs his deportation to England provided that

country is Willing to accept him, otherwise to Italy, the country of

his birth and the country from which he last entered the United

States.

The respondent applied for the withholding of his deportation to

Italy pursuant to section 243(h) of the Immigration and Nationality

Act (8 U.S.C. 1253(h)) (Ex. A 61). The affidavit supporting respondent's applicationestates in substance that his criminal record in

the United States and the fact that he has been described by public

officials us a "racketeer" and as one of the leaders of the Chicago

"Cosa Nostra" would render him subject to severe limitatjions and

punishment if returned to Italy. He also Claimsthat his deportation

to Italy would injure him physically and mentally because he would ;

be separated from his family and is in Constant need of medical cafe

The evidence supporting the respondent's application for relief is

fully discussed in the opinion of the special inquiry officer dated

October 26, 1965, and will not be repeated. 'file discussion is incorporated herein by reference (pp. 47-52, special inquiry officer

opinion).

The hearing on the issue of withholding deportation' was con- •

ducted and the decision of the special inquiry officer was rendered

prior to the effective data of the amendment of the Immigration and

Nationality Act by Public Law 89-236 (December 1, 1965). Public

Law 89-236 was enacted, however, on October 3, 1965. The special

inquiry officer in his decision of October 25, 1965 fully considered the

respondent's application for relief under section 243(h) in light of

the amended version of the statute 8 which became effective on December 1, 1965.

Counsel urges that if the amended version of section. 243(h) is to

be applied in the instant case then respondent should be afforded an

opportunity in a reopened hearing to prove that he would be perseCuted for political reasons under the Italian law presently in force.

Counsel proposes to show at v. reopened hearing that political conSection 243(h) of the Immigration and Nationality Act (8 U.S.C. 1258(h))

was amended by striking the term "physical persecution" and inserting'in lieu

thereof "persecution on account of race, religion or politick' opinion."

576

Interim Decision #1517,i

stderations decide whether Italy would exile a deportee in the respondent's position of a stateless person without any rights of Ital-

ian citizenship.

The respondent has had ample opportunity to introduce evidence

concerning his claim that he would be "persecuted for political reasons." The record contains an affidavit on Italian law prepared. by

Dr. A. Luini .del Russo (Ex. A 62) and her testimony in another

case involving an application for relief under section 243(h) e the

deposition of Paola Alberto Rossi taken at the American Embassy - in

Rome, Italy on March 1, 1965 (Ex. A 102) and an official communication from the Italian- Government entered as Exhibit A 134.

It is clear from the testimony of Dr. Russo and Feeds _Rossi that

the restrictions imposed by the Italian Publie Safety Act of 1956

(Ex. A 102) apply generally to all Italian citizens and are not di:

rected solely against criminal deportees from the United States. The

"Note Verbale" from the Italian Ministry of Foreign Affairs -(Ex.

A 134) states in part: "A person deported from the United States

for criminal activities is free to select his place of residence in Italy

... A deportee is not subject to police measures, unless he gives rise

to suspicion that he is engaging in illicit activities . . . or associating with people of reputation... It may be useful to add in this connection that the party concerned (respondent) has the right to appeal to a court of appellate jurisdiction and eventually to the Supreme Court against the decision whereby restricted measures" are

assessed on him."

The Italian Foreign Ministry. also stated that there were some MOO

persons now in Italy who were deported from the 'United States

of America for criminal activities. "Although many of these persons

were deported for serious criminal violations committed in the United

• States of America, none of these 200 deportees is at present subject to any special restrictions under the Law of December 27, 1956.

There is no provision of law now in force in Italy under which police

restrictions can be imposed on persons who have committed crimes in

other states in the past, whose conduct is now irreproachable and

law abiding." (Ex. A 134)

We do not believe any purpose would be served in remanding the

case to afford the respondent an opportunity to introduce additional

evidence on the issue of "political persecution" in light of the official

communication from the Malian Ministry of Foreign Affairs intro- •

duced in evidence as Exhibit A pi. Furthermore, the testimony of

the respondent's witnesses, Dr. Russo and Paola Rossi, we believe

supports the position taken by the Ministry of Foreign Affairs of

'Matter 07 Parfet, A-81£46T63,

December 7. IMO.

577

Interim Decision #1575 the Italian Government. There is ample evidence now of record

which affirmatively establishes that the respondent cannot satisfy

the statutory requirement that-he would be subjected to persecution

in Italy "on account of race, religion or political opinion" (section

243(h) as.amended by Public Law 89-236).

Counsel argues that the statement of the Italian. Foreign Ministry

is not admissible as evidence unless an. official of the Italian Government is produced for cross-examination. We note that it was respondent's counsel who originally requested that the statement be obtained from the Italian Government: Furtherinore, relief under section 243(h) is a matter of discretion and as such the respondent does

not have as a matter of right, the cross-examination of witnesses as

provided in section 242(b)-(3). Discretionary action by its very nature permits wide latitude to the authority charged with-its exercise.

The Attorney General may consider any evidence which would be of

assistance in formulating "his opinion •(that) the alien would be

subject to persecution on account- of race, religion or political opinion." Dolma v. Shaughnessy, 206 F.2d. 392 (CA. 2, 1953) ;

Evenly, 299 F.2d 244 (CA. 2, 1961), cert. den. 1369 U.S. 844;

igantisani v. Holton, 248 F.2d 737 (CA. 7, 1957).

Counsel maintains that under the savings clause of the 1952 Act

(section 405(a) ; 8 U.S.C. 1101, footnote) the respondent's application for a. stay of deportation. under section 243(h) must be judged

by the law existing prior to its amendment by Public Law 89-236.

Counsel cites no authority to support this contention. It is well established. that -where a statutory provision as to administrative dis-oration is changed between the hearing before the special inquiry offi-ter and:_ final decision by this Board we must apply the amended version of the law. Poti v. Immigration thad Natetralimtinn &ram,

332 F.2d 424 (CA. 2, May 1964) ; Patsis v. Immigration and Natwra712ation Service, 337 F.2d 733, October 1964; cf. Matter of George,

Int. Dec. No. 1533, B.I.A., December 16, 1965. ,

We affirm the order of the special inquiry officer denying respondent's application for withholding of deportation to Italy pursuant

to the provision's of section 243(h) of the Immigration and Nationality Act as amended by Public Law 88 236, effective December 1, 1965.

-

THE LEGALITY OF THE ORDER DIRECTING DEPORTATION

TO ITALY

Counsel contends that the deportation order entered by the special

inquiry officer is illegal for the reason that there is no evidence of

record that the Italian Government is presently willing to accept

the respondent as a deportee. Counsel takes the position that section 243(a) of the Immigration and Nationality Act (8 U.S.C.

578

Interim, Decision #1575

1253(a.)) provides for orders of 'deportation to alternate countries

only where such country is willing to accept the alien: He cites

in support of his position three•cases concerned with actions brought

by Chinese aliens contesting the execution of orders of deportation

to either Communist China on the mainland or the Nationalist

Government of China on Formosa." We note that counsel did not

raise this issue before the special inquiry officer (R—p. 29).

The cases cited by counsel are easily distinguishable from the case

before us. This case does not present the problem which often

confronts the Government in dealing with aliens of Chinese origin

who were born on the mainland of China prior to the .time the

. Nationalist Government . (recognized by the United States) was

forced to withdraw to Formosa. The cited cases • are concerned

with the execution of an' order of deportation and not' with an

administrative determination of the place of deportation in accordance with the provisions of 8 CFR 242. '8 CFR 242.8 provides the

special inquiry officer' with authority "tO. determine deportability,

.. (and) .. to determine the.country to Which an alien's deportation will be diitected in accordance with section 2,48(a) of the

Act . ." •(8 U.S.C. 1253(a)).

Where there is p,11 ancillary metier before the special, inquiry

officer, such as an application for a temporary withholding of deportation pursuant to section 248(h) of the Immigration and Nationality Act (8upra)i the current regulation (8 CFR 242.17(c))

provides that .the alien shall be notified.of his right to designate

the corn-try to which he•wishes to be deported and that the special

inquiry officer's order shall direct the alien's deportation in the first

instance to the country so designated. 8 CFR 042.17(c) also provides: "The special inquiry officer. shall then' (namely, after

directing deportation to. the deb: country) specify and state

for the record. the country or countries in the .alternatei to which

respondent's deportation will be directed pursuant to section 243(a)

of the Act if the country of his designation will not accept him,

into its territory, or fails to furnish timely notice of acceptance,

. or the respondent declines to designate a country."

. The special inquiry officer's order complies fully with the procedural pattern shelled out by the statute and the regulations set

forth in. 8 CFR 242. The special inquiry officer's decision makes a

finding that the respondent is "a native of Italy, who claims he is

-

"La V. Rogers, 164 F. Saint 320 (D.C: DC. 1958), aff'd 262 F.2d 471

(0.A. D.C. 1958) ; U.S. es reL Torn Man v. Shaughnessy, 142 F. Stipp. 444, D.C.

(1956) ; a S. es re/. Lee Ming Hon y. ffhaugAneaag, 142 F. Stipp. 468

(D.C. S.D.N.x. law).

579

Interim Decision #1575

now stateless" (p. 2 of the special inquiry officer opinion). The

record establishes that the respondent last entered the United States

through the port of New York on August 10, 1920 and that his last

'place of residence prior to entry was Italy (Pm. A '75)_ Section

243(a) of the Immigration and Nationality Act (8 U.S.C. 1253(a))

specifically states that an alien may be deported "(1) to the country from which such alien last entered the United States; (and)

(3) to the country in which he was born" unless the country

•designated by the alien is willing to accept him. Accordingly, we

find no basis for counsel's assertion that the order entered by the

special inquiry officer is illegal. It is elementary that before such

'a claim of illegality can be made there must be a final order of

deportation after appropriate administrative and judicial review.

'Otherwise, there would be no point in negotiating with a foreign

country to determine whether it will accept a deportee,.

Counsel also urges error in that, the order entered by the special

inquiry officer does not conform to section 8(b) of the Administrative Procedure Act which requires findings of fact, conclusions of

law together with the reasons or basis for the administrative action

on material issues of fact, law and discretion. find no error.

The special inquiry officer's decision does make a finding with regard to the place of the alien's birth and there is evidence of record

that Italy is the country of his last residence 'prior to entering the

United States (p. 2, special inquiry officer opinion and Ex : A 75).

Furthermore, the procedural requirements of the Administrative

Procedure Act are not applicable to deportation proceedings under

the immigration laws. Marcella v. Bonds, 349 U.S. 302, 99 Led.

1107 (1955). There is no requirement in either the statute or the

regulations that the special inquiry officer make formal findings of

'fact and conclusions of law to support an order deporting an alien

to a foreign port or place.

We find no substance to counsel's claim that the order entered

by the special inquiry officer directing the respondent'sp,alternate

deportation to Italy is illegal. The order is hereby affiimed.

CONCLUSION

The respondent, now 68 years of age, has resided in the United

States for more than 45 years. He last entered the United States

, with fraudulent documents on August -10, 1920. He married a

lawfully resident alien in 1927 (pp. 109 110). Three children have

been born of the marriage, a daughter and two sons. Both of the

respondent's sons served in the United States Army and were

-

honorably discharged. There is evidende that one of his sons is

580

Interim Decision #1575

mentally ill but capable of handling his own financial affairs. He

receives compensation amounting to $250 per month from the

Veterans Administration (Ens: A 69 & 70).

A physician, called by the- respondent, testified that in his opinion

the respondent's deportation would have an injurious effect on. his

health and life. He diagnosed the respondent's physical condition

as follows: coronary insufficiency, hypertension due probably to art.erioselerosis and emotional factors, a deteriorated kidney, enlargement of the prostate gland, diabetes and low grade anemia (Ex. A

'68). The physician expressed - his belief that the respondent's deportation may cause a relapse in the 'condition. of his mentally ill

son. The witness concedes, however, that the respondent has. had

a kidney ailment since the removal of one of his kidneys in 1948

and that he (respondent) has been afflicted with diabetes since 1942

(pp. 63 & 64).

Against this background of long residence in the United States

after a fraudulent entry, close family ties in the United. States,

and rather poor physical conditiori; we have a 68-year-old alien who

-committed two homicides in Italy prior to his e4try (Ex. 36) ; an

alien who obtained a fraudulent naturalization in 1928; an alien

who was convicted of conspiracy to commit extortion in 1943 and

sentenced to ten years' imprisonment 11 (Ens. A 64 & A 65) ; an

alien , whose fraudulent natdalization was revoked in 1957; and

an alien who was, convicted for income tax evasion in 1959 _and

sentenced to three years' imprisonment -and a $15,000 fine.12 .

A careful review of the voluminous record clearly establishes

that the respondent's plea for adininistrative grace is based, primarily on negative evidence concerned with his criminal Convictions,

the source from which he has derived the major portion of his

income over the past 35 years and the alleged unfairness of the

conduct of the reopened hearing by the special inquiry officer rather

than affirmative evidence of his rehabilitation and present worth in

the community in which he resides. The respondent did not produce a single witness or affidavit to establish his reputation or

support his claim of good moral character. There is nothing to

show that the respondent is aware of the gravity bf his past misconduct. His counsel, in fact, stated for the record, "I concede

that his (respondent's) reputat ion is not good, yes, but I don't

concede that there is justification for it (It-p. 37)

P He served three years and eight months of the ten-year sentence and was

paroled- (Er. A 04, PP. 2 & 10).•

"The respondent was incarcerated

Tidy 1, 1959 until October kit 1961.

continuing on probation for an additional period of three rears:

681

Interim Decision #1515

We" have fully considered the humanitatian aspects of the respondent's case. It is diffichlt if not impossible to define any standard for judging discretionary matters' of the nature presented by

this case. We have in the past exercised - the discretion given the

Attorney General by the immigration laws to•waive criminal grounds

of exclusion where the record affirmatively establishes: (1) long

residence in the United States; (2) close family ties in the United

States who would be adversely .affected by the denial of discretionary

relief; (3) the crime or crimes committed by the alien are remote

from the date of the application for discretionary relief, and most

important of all (4) there is an affiimative showing, of genuine

reformation over a reasonable period of time.

We find no substantial evidence in this record which would support a claim of genuine reformation and rehabilitation on the part

of the respondent. He refused to answer questions &ineerning his

reputation in the City of Chicago (R—pp. 388-341). He refused

to comply with the .special inquiry officer's repeated directives to

furnish a net-worth statement and other information concerning

the source of his ikcsme which according to his income tax returns

'amounted to more titan $100,000 during the years of 1959 and 1962.

(Exs. A 80, A 85 & A. 86) •11—pp. 320, 349, no, 378). He refused

to answer questions as to whether he had ever engaged in bootlegging or extortion; whether he had ever been associated with a

group engaged in illegal activities; and whether he had ever received. any monetary payments from such a group or from such

activities (R pp: 291 292).

The respondent's refusal to answer such questions leaves only'one

inference, namely, that his illegal activities are of a continuing nature. He has submitted no affirmative evidence of a genuine reformation and rehabilitation although the burden is upon him to support his application) for diseretionary relief • with such evidence.

Under the circumstances, we have no other alternative but to dismiss the appeal., An appropriate order will be entered.

ORDER: The order entered by the special inquiry officer denying

relief under sections 249, 212(h) and 243(h) of the Immigration

and Nationality Act, as amended, is hereby affirmed.

It is further directed that the appeal be and the same is hereby

dismissed. .

—

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582