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so, whether the ground of inadmissibility can be waived pursuant to the authority contained in section 212(d) (3) of the act.
Has the subject been convicted of an offense, or offenses, involving moral turpitude so as to make him excludable under section 212(a) (9) or (10) of the act! As a matter of law, a conspiracy
? to commit an offense involves moral turpitude only when the substantive offense charged therein involves moral turpitude (United States ex rel. Berlandi v. Reimer, 30 F. Supp. 767; Mercer v. Lence, 96 F.2d 122, cert. den. 305 U.S. 611). The substantive offense here charged, violation of the Foreign Agents Registration Act of 1938, as amended, does not involve moral turpitude (Matter of M3 I. & N. Dec. 310). Hence, it is found that the alien is not subject to exclusion under section 212(a) (9) or (10) of the act; nor is there any other express provision in section 212(a) requiring his exclusion.
Notwithstanding the lack of a specific statutory ground of exclusion, is the alien nevertheless excludable because of his conviction? Section 241 (a)(5) of the act provides that “Any alien in the United States * * * shall, upon the order of the Attorney General, be deported who— *** has been convicted of violating or conspiracy to violate any provision of the Act entitled 'An Act to require the registration of certain persons employed by agencies to disseminate propaganda in the United States, and for other purposes', approved June 8, 1938, as amended * * *” That section
. does not couple deportability with any particular entry into the United States. It merely makes deportable such an alien in the United States. Thus, if the subject were to gain entry he would immediately become deportable. It has been the long-standing administrative practice to hold such an alien excludable. This conclusion has been reached in cases involving persons previously excluded or deported on charges involving prostitution (Matter of N-55917/905, unreported); persons convicted of violating the narcotics laws (Matter of V-, 1 1. & N. Dec. 293); persons who have failed to comply with section 265 of the Immigration and Nationality Act (Matter of SM, 71. & N. Dec. 536); and persons convicted under 18 U.S.C. 1546 (Matter of R- -G. Int. Dec. No. 950).
Having found the subject excludable, may his admission be authorized under the authority of section 212(d) (3) of the act which provides for the admission of a nonimmigrant who is inadmissible under one or more of the paragraphs enumerated in subsection (a), other than paragraphs (27) and (29) ? Since excludability rests on long-standing administrative practice rather than on a ground specifically mentioned in section 212(a), a narrow reading of section 212(d) (3) would seem to preclude the exercise of that discretionary authority. However, the sole statutory prohibition is the exercise of section 212(d)(3) in behalf of aliens excludable under section 212(a) (27) and (29). All other classes of excludable aliens may be admitted temporarily under section 212(d) (3). Since the subject is actually excludable, and the excludability does not rest upon either section 212(a) (27) or (29), it is concluded that section 212(d) (3) is the proper statutory basis for the exercise of the Attorney General's discretion to authorize temporary admission of this applicant. His application will be granted.
Order: It is ordered that the subject's admission to the United States as a nonimmigrant for a period of 2 months be authorized pursuant to section 212(d) (3) of the Immigration and Nationality Act, subject to revocation at any time, provided he is found to be otherwise admissible than by reason of his conviction of violation of 18 U.S.C. 88, conspiracy, and of 22 U.S.C. 233, Foreign Agents Registration Act, and provided he applies for admission within a period of 3 months from notification of decision.
Pursuant to 8 CFR 3.1(c), this case is certified to the Board of Immigration Appeals for review.
BEFORE THE BOARD
(April 2, 1959)
Discussion: The Assistant Commissioner, Inspections Division, on March 19, 1959, ordered that the alien's admission to the United States as a nonimmigrant for a period of 2 months be authorized under the authority provided in section 212(d) (3) of the Immigration and Nationality Act, subject to revocation at any time, provided he is found to be otherwise admissible than by reason of his conviction of violation of 18 U.S.C. 88, conspiracy, and of 22 U.S.C. 233, Foreign Agents Registration Act, and provided that he applies for admission within a period of 3 months from notification of the decision. The case has been certified to the Board for final decision in accordance with 8 CFR 3.1(c).
The alien is a 61-year-old native, citizen and resident of Japan. The facts detailing his first and last admissions to the United States at Seattle, Washington, and El Paso, Texas, on August 4, 1922, and October 18, 1931, respectively, as well as his having been convicted in the United States District Court for the District of Columbia on June 5, 1942, for violations of section 88, Title 18, U.S.C., conspiracy, and section 233, Title 22, U.S.C., Foreign Agents Registration Act, and his being repatriated to Japan in September 1943, have been adequately covered by the Assistant Commissioner, Inspections Division, in his decision of March 19, 1959.
The appellant, an employee of the Northwest Orient Airlines, is the Assistant to the Vice-President for the Orient. His employers desire to bring him to the United States for a period of 2 months for training in connection with the domestic operations of the aforementioned company. While in the United States the appellant's headquarters will be in St. Paul, Minnesota. On the basis of the evidence before us it is clear that if the appellant were admitted to the United States he would become deportable therefrom under the provisions of section 241(a) (5) of the Immigration and National Act by reason of his having been convicted on June 5, 1942, of violation of Title 18, U.S.C., section 88. This Board has held that a specific statutory ground is not required for the exclusion of an alien who would immediately become deportable upon entry. The Assistant Commissioner, Inspections Division, after a detailed recital of the pertinent evidence in his decision of March 19, 1959, authorized the alien's admission to the United States as a nonimmigrant under section 212(d) (3) of the Immigration and Nationality Act and the reasons therefor are stated tersely and with clarity therein. The decision reached by the Assistant Commissioner in his decision of March 19, 1959, is concurred in by this Board. Accordingly, the following order will be entered.
Order: It is ordered that the order entered by the Assistant Commissioner, Inspections, on March 19, 1959, be and the same is hereby approved.
MATTER OF 0
In VISA PETITION Proceedings
Decided by Board March 23, 1959
Visa petition-Determining admissibility not within the scope of visa petition
procedure. Visa petition procedure is not the forum for determining substantive ques
tions of admissibility under the immigration laws. When eligibility for the claimed status is established, the petition should be granted.
BEFORE THE BOARD
Discussion: The case comes forward on certification by the Assistant Commissioner, Examinations Division, under the authority contained in section 3.1(c), Title 8, Code of Federal Regulations.
The petitioner, a native-born citizen of the United States, seeks nonquota status on behalf of the beneficiary, her husband, a native and citizen of Italy. The parties were married on September 25, 1929, at Fulton, New York. The petition is supported by the birth certificate of the petitioner and by a marriage certificate. The beneficiary appears, upon the basis of the documents submitted, prima facie eligible for nonquota status under section 101 (a) (27) (A) of the Immigration and Nationality Act as the alien husband of a citizen of the United States.
The beneficiary is the subject of immigration file A-3458045 (E076779). He claims to have entered the United States from Italy in April 1924, as a stowaway, and was found deportable under the Immigration and Nationality Act on the ground that he entered without inspection and that he entered as a stowaway. On July 19, 1954, this Board dismissed his appeal and denied an application for suspension of deportation. At that time the alien alleged that his deportation would result in exceptional and extremely unusual hardship to himself, his citizen wife, and adult daughter. The special inquiry offi
, , cer denied the application for suspension of deportation, finding that his deportation would not result in exceptional and extremely unusual hardship within the meaning of section 244(a)(1) of the Immigration and Nationality Act; and further, that respondent has not established that he has been a person of good moral character since 1946. Although the alien had actually been convicted of only four traffic violations in the United States, examination of the record revealed instances of misrepresentations and false claims in connection with an attempt to obtain a certificate of legal residence in 1938 by falsely claiming the name of one F-A- Attempts to establish residence in the United States prior to July 1, 1924, by affidavits of witnesses claiming to have first met him in April or May 1924, turned out, upon examination, to be false or the affiants had no knowledge of the alien. It was also established that the alien had been convicted in absentia in Italy in May 1928 of two offenses of murder and as an accomplice in two murders and he admitted that an arrest in Italy when he was 18 years old which he had described as "for fighting” was actually an arrest on suspicion of murder. It was noted that the alien's conviction in absentia in Italy would not support a charge of deportability for conviction of a crime prior to entry because of the nature of the conviction. He has been arrested on several other occasions but was acquitted of a charge of murder and a charge of conspiracy to defraud the United States.
Based upon the alien's past history as revealed in his immigration files, the Service concludes that the beneficiary would be ineligible to receive a visa and would be excluded from the United States under section 212(a) (27) of the Immigration and Nationality Act which encompasses aliens who the consular officer or the Attorney General knows or has reason to believe seek to enter the United States solely, principally, or incidentally to engage in activities prejudicial to the public interest, or endanger the welfare, safety or security of the United States. Relying on the words "or the Attorney General” in section 212(a) (27), the Service concludes that the beneficiary is ineligible to receive a visa and is inadmissible to the United States under that section and accordingly denies the visa petition. At oral argument the same contentions were advanced, and the argument was also made that circuity of action should be avoided wherever possible; that it would be anomalous to require approval of the visa petition when a subsequent determination upon the alien's application for admission to the United States will result in a finding of inadmissibility upon the grounds already set forth.
It is believed that the finding of inadmissibility as a basis upon which to deny approval of a visa petition is not sanctioned under the procedure set forth in granting visa petitions. The visa petition procedure for granting nonquota immigrant status under section 101 (a) (27) (A) or quota immigrant status under sections 203(a) (2), 203(a) (3) or 203(a) (4) is set forth in section 205 of the Immigration and Nationality Act. Subsection (c) of section 205 provides that after an investigation of the facts in each case the Attorney