MATTER OF P In SECTION 249 Proceedings A-4577395 Decided by Regional Commissioner October 16, 1958 Approved by Assistant Commissioner Adjustment of status-Effect of absence on continuity of residence-Good moral character requirement. (1) Applications for adjustment of status under section 249 of the 1952 act pending on August 8, 1958, will be decided under the terms of the amended statute. (2) A temporary absence from the United States will not break the continuity of residence required by section 249, as amended. However, a departure from the United States as a result of exclusion or expulsion proceedings breaks the continuity of the alien's residence regardless of the period of time he is outside the United States. (3) Since an applicant under section 249, as amended, is required to establish good moral character (although not for any specified period of time), the standards set forth in section 101 (f) of the act will be considered along with other factors in determining whether the requirement has been met. APPLICATION: Creation of a record of admission for permanent residence under section 249 of the Immigration and Nationality Act. BEFORE THE REGIONAL COMMISSIONER Discussion: This case comes forward on appeal from the order of the District Director, Detroit, Michigan, dated July 10, 1958, denying the application on the grounds that the applicant was subject to deportation under section 241(a) (2) of the Immigration and Nationality Act for entry without inspection by reason of his entry in 1940 upon a false claim to United States citizenship, and under section 241(a)(1) of the act by reason of his excludability at time of such entry because of lack of required documents. The application for creation of a record of admission was filed prior to the enactment of the Act of August 8, 1958 (72 Stat. 546), which amended section 249 of the Immigration and Nationality Act. The statute does not specifically provide that an application pending at time of enactment be determined in accordance with the provisions of the amended law. However, it is considered that, in the proper exercise of the discretion expressed in the present law, all applications pending on August 8, 1958, must be determined on the basis of the standards set forth by Congress as of that date. Applicant was born in Aberdeen, Scotland, on November 24, 1912, his parents being F-P-P— and C—K- both aliens at that time. His father died on February 21, 1917. On August 8, 1922, his mother (deceased in 1936) was married in Detroit, Michigan, to applicant's stepfather, A—B- a native-born United States citizen. Upon her marriage, she derived United States citizenship pursuant to section 1994, Revised Statutes. Applicant was married in 1934 to a native-born United States citizen and has 4 native-born children, two of whom are presently in the United States Armed Forces. Applicant claims that he originally entered the United States in 1920 but no record of any entry by him can be located. A record has been located indicating that applicant and his mother were debarred from entry into the United States on August 24, 1922, on the grounds that they were likely to become public charges. They were then destined to (A-B—) a friend, who is presumably applicant's stepfather to whom applicant's mother was married on August 8, 1922. There is no explanation for the mother's attempted entry as an alien rather than as a citizen, nor her intended destination to a friend rather than to her United States citizen husband. It is furthermore apparent that this debarment occurred in connection with a visit to Canada, inasmuch as a school record of the Board of Education, Grosse Pointe, Michigan, indicates that applicant attended school there from September 19, 1921, through February 21, 1926. He has established continuous residence in the United States from at least 1922 and that he was absent from the United States thereafter on only one occasion on a short trip to Canada. While there is contradictory testimony by applicant as to the date of reentry into the United States, it occurred prior to June 28, 1940. Under the provisions of section 249, as amended, a record of lawful admission may, in the discretion of the Attorney General, be made as of the date of approval of his application or, if entry occurred prior to July 1, 1924, as of the date of such entry, in the case of any alien who makes application therefor, and who establishes that he: (1) entered the United States prior to June 28, 1940, and no record of such entry exists; (2) has had his residence in the United States continuously since such entry; (3) is not inadmissible under section 212 (a) insofar as it relates to criminals, procurers and other immoral persons, subversives, violators of the narcotic laws or smugglers of aliens; (4) is not ineligible to citizenship, and An applicant for adjustment of status under section 249, as amended, is required by the statute to establish good moral character. This need not be established for any required period of time but the standards set forth in section 101 (f) should be taken into consideration, along with other factors, in determining whether the requirement of good moral character has been met. The applicant has established that he is not inadmissible to the United States under section 212(a) as a member of one of the classes enumerated above, that he is a person of good moral character and is not ineligible to citizenship. The applicant alleges entry into the United States in 1920 and continuous residence here since that time. He has presented evidence to establish his claim, but he has been absent from the United States for brief periods on two occasions, one in August 1922, and again in 1940, but prior to June 28 of that year. An alien who has been absent from the United States at any time since the entry upon which his application is based may be found to have resided continuously in the United States since the date of his original entry if his absence was temporary and his principal actual dwelling place in fact remained in the United States during the entire period of his absence. However, a departure from the United States as a result of exclusion or expulsion proceedings breaks the continuity of residence for the purpose of section 249, regardless of the period of time the alien is outside the United States after such departure. Therefore, the applicant's continuous residence in the United States was broken on August 24, 1922, when he was excluded and deported. He has established that he has subsequently resided in the United States since September 5, 1922. His temporary absence in 1940 is not considered to have broken the continuity of that residence. He has established his eligibility for the creation of a record of lawful admission under section 249, as amended, as of a date prior to July 1, 1924. The applicant has no recollection of his absence from the United States in 1922 and cannot give the date of his reentry. Therefore, a record of entry for lawful admission for permanent residence will be created as of September 5, 1922, since he has established continuous residence from at least that date. Order: It is ordered that the appeal of J-C -P from the denial of the district director of his application for creation of a record of lawful admission for permanent residence be sustained and that a record of his lawful admission for permanent residence be created as of September 5, 1922. 562713-61-13 MATTER OF Z In DEPORTATION Proceedings A-4420140 Decided by Board October 28, 1958 Crime involving moral turpitude-Section 241(a)(4) of the 1952 act-"Single scheme" not established where crimes violating identical statute were separate episodes in continuing criminal plan. Single scheme of criminal misconduct within meaning of section 241(a)(4) of the 1952 act is not established where respondent has been convicted on two counts of an indictment for defrauding the Government of tax on two separate occasions with respect to separate quantities of alcohol in violation of 26 U.S.C. 3321. Convictions which are the result of separate episodes are not part of "single scheme" even though the episodes occur pursuant to a continuing criminal plan or conspiracy. (See note at end of decision.) CHARGE: Order: Act of 1952-Section 241(a) (4) [8 U.S.C. 1251(a)(4)]--Convicted of two crimes involving moral turpitude: Intent to defraud the United States of tax (two offenses). BEFORE THE BOARD Discussion: This is an appeal from the order of the special inquiry officer finding the respondent deportable on the ground stated above and denying his application for discretionary relief. The appeal will be dismissed. Respondent, a 56-year-old married male, a native and citizen of Italy, last entered the United States in 1922. His deportation is sought on the ground that after entry he has been convicted of 2 crimes involving moral turpitude "not arising out of a single scheme of criminal misconduct." The issue is whether the crimes for which he has been convicted arose out of a single scheme of criminal misconduct. On March 25, 1941, respondent was convicted, upon a plea of guilty, on 11 counts of an indictment charging violation of several provisions of the Internal Revenue laws, and on one count charging conspiracy to violate provisions of the Internal 1 Section 241 (a) (4) [8 U.S.C. 1251(a)(4)] provides in pertinent part: "Any alien in the United States * * * shall, upon the order of the Attorney General, be deported who ** at any time after entry is convicted of two crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial." Revenue laws. He was sentenced to imprisonment for a term of 8 years and fined $12,000. The Services relies upon the convictions based on counts 6 and 11. Count 6 charges that respondent and others removed 200 gallons of alcohol with intent to defraud the Government of tax on September 18, 1940, in the County of Sangamon in violation of 26 U.S.C. 3321, 1940 ed. Count 11 charges that on September 9, 1940, the respondent and others committed the same act in the same county with the same intent in violation of the same law in connection with 50 gallons of alcohol. Count 12, the conspiracy count of the indictment, charged that from April 1938 to the date of the presentment (September 1941) respondent combined with others to commit the offenses described in the other 11 counts of the indictment and conspired to commit other like offenses the number of which was unknown. All the allegations concerning the other counts of the indictment were incorporated by reference into the conspiracy count. The special inquiry officer found that although the respondent had entered into a general conspiracy with others to commit the offenses charged in counts 6 and 11, the offense in each of those counts was a complete, individual, and distinct crime and was not a part of a single scheme of criminal misconduct. Counsel contends that the offenses in counts 6 and 11 were committed in pursuance of the conspiracy and, therefore, are part of a single scheme of criminal misconduct. The case most pertinent of those upon which he relies is Jeronimo v. Murff, 157 F. Supp. 808 (S.D. N.Y., 1957). The special inquiry officer dismissed Jeronimo from consideration on the ground that it was decided by a district court in a circuit other than that which would have jurisdiction of the respondent's case. The Service representative reinforced the position of the special inquiry officer but also attempted to distinguish and explain Jeronimo. Without implying that there is only one answer to the 2 The Service representative argues that Jeronimo does not stand for the proposition that unlawful acts performed during the existence of a conspiracy are necessarily committed as part of a single scheme. He believes that in Jeronimo, the existence of a single scheme was found, not because a conspiracy existed but because the court found that all of Jeronimo's acts were directed to a single end. In the instant case, he points out, the indictment reveals that respondent conspired to commit "divers" offenses. He stated that this indicates that the grand jury "apparently considered that the respondent and others had conspired to commit several crimes which would differ in character and quality, and not of the same kind." The Service representative also points out that the conviction on the conspiracy could have been brought about by proof of the agreement and the existence of any one of the 20 overt steps set out. (All but one of the overt acts refer to a date other than September 18 or September 9, 1940, when the acts mentioned in counts 6 and 11 were committed. The relation of the overt acts of September 18 and September 9, if any, to the acts set forth in counts 6 and 11 is not known.) The Service representative also relies upon the "very peculiar and very unusual facts" of Jeronimo. |