Imagini ale paginilor
PDF
ePub

(1) The term "child" means an unmarried person under twenty-one years of age who is

(A) a legitimate child; or

(B) a stepchild, whether or not born out of wedlock, provided the child had not reached the age of eighteen years at the time the marriage creating the status of stepchild occurred; or

(C) a child legitimated under the law of the child's residence or domicile, or under the law of the father's residence or domicile, whether in or outside the United States, if such legitimation takes place before the child reaches the age of eighteen years and the child is in the legal custody of the legitimating parent or parents at the time of such legitimation.

(D) an illegitimate child, by, through whom, or on whose behalf a status, privilege, or benefit is sought by virtue of the relationship of the child to its natural mother;

(E) a child adopted while under the age of fourteen years if the child has thereafter been in the legal custody of, and has resided with, the adopting parent or parents for at least two years: Provided, That no natural parent of any such adopted child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act.

(2) The terms “parent," "father,” or “mother” mean a parent, father, or mother only where the relationship exists by reason of any of the circumstances set forth in (1) above. (Emphasis supplied.)

The Department of State, in a case involving an illiterate mother of a twenty-nine year old American citizen, held that the mother was a "parent" and entitled to the exemption from illiteracy provided in section 212(b) on the ground that the language contained in section 101(b)(2) which reads “circumstances set forth in (1) above” refers to circumstances leading to a child-parent relationship as specified under subparagraphs (A), (B), (C), (D), or (E); namely, a legitimate birth, a stepchild relationship, a legitimated child, illegitimacy in relation to the mother, or adoption. The word "circumstances" as used in section 101(b)(2) does not relate to the words "unmarried” or “under twenty-one years of age” as used in section 101(b) (1) of the act. (Note 7, Revised August 1, 1958, Visa

) Handbook 22 CFR 42.1).

In view of the differing interpretations, the Commissioner of the Immigration and Naturalization Service requested that the conflict be resolved. The Commissioner, while not expressing any views on the matter, may be regarded as tacitly agreeing with the interpretation reached by the special inquiry officer, since the Service Representative, in oral argument on July 24, 1958, was content to rest on the record.

In a communication dated May 6, 1959, the Department of State expanded its views expressed in the note referred to above. The Department agreed that the terms "parent" and "child” are interrelated and that the definition of a "child” as contained in section 101(b) (1) of the act is a limitation upon the meaning of the term "parent.” It did not agree, however, that an alient is a “parent” only where the person through whom such alien claims an exemp

[ocr errors]

tion, benefit, or status under the immigration laws is unmarried and under twenty-one years of age. This view is based on a belief that the crucial word in the definition of "parent" is relationship. With respect to the exemption of a parent from the illiteracy test under section 212(b), the State Department resolved the doubt in favor of that interpretation which tended to give effect to the legislative purpose in providing the exemption in the first place, namely, unification of the family. Since the principal consideration which led to the enactment of the Act of September 11, 1957 was the unification of families, an interpretation of the word "parent" as used in section 7 of the Act of September 11, 1957 which tended to keep members of families separated would seem to be inconsistent with the legislative purpose. In sections 5 and 6 of the Act of September 11, 1957, Congress granted discretionary relief to any alien who "has a son or daughter who is a United States citizen or an alien lawfully admitted for permanent residence ***” The words "son"

.

” and “daughter" are broader than the word "child” and, therefore, section 7 of the Act of September 11, 1957, which deals with "parents” of citizens or permanent resident aliens, must be given a more restrictive application than sections 5 and 6, a result which it was doubtful Congress ever contemplated. The Department of State pointed out that if only an unmarried alien under twenty-one years of age could benefit under the provisions of section 202(a) (4) (which permits an alien born within any quota area in which neither of his parents was born and in which neither of his parents had a residence at the time of such alien's birth to be charged to the quota area of either parent), the legislative purpose would be defeated since this rule of quota chargeability was intended primarily for the benefit of adult aliens. Similarly, the adoption of the strict limitation as to child as an unmarried person under 21 years of age in relation to the various categories would, if applied to the term "parent," limit section 203 (a) (2) of the Immigration and Nationality Act to unmarried adult United States citizens, since that section refers to parents of citizens over twenty-one years of age and makes no mention of their marital status which is referred to in the definition under section 101(b) (1).

There can be little doubt that the legislative history of the Immigration and Nationality Act clearly indicates that the Congress intended to provide for a liberal treatment of children and was concerned with the problem of keeping families of United States citizens and immigrants united. In waiving the excluding provisions of existing law relating to persons afflicted with tuberculosis, the Congress desired that this waiver be extended in behalf of close relatives of United States citizens or aliens admitted for permanent residence in the belief that enactment of this section, under which families of United States citizens and of aliens lawfully residing in the United States would be given an opportunity to be reunited, was not contrary to the public interest, while it would greatly contribute to the stability of the home life of many American and immigrant families directly affected. Similar considerations were expressed in granting discretionary authority in waiving grounds of exclusion in the cases of spouses, parents or children (including minor adopted children) of citizens or lawful resident aliens and in providing for leniency for those applications made by close relatives of United States citizens and permanent resident aliens.?

1 United States Code Congressional and Administrative News, 85th Congress, 1st Session, 1957, pp. 20, 21.

It is, therefore, apparent from the legislative history that Congress had in mind the family unit as such, that is, close relatives of United States citizens and permanent resident aliens, which it desired to keep together in order to alleviate the hardship of enforced separations. Of course, as to the term "child," the restrictive limitations of age and marital status were kept but the categories of relationship were widened to include illegitimate stepchildren, illegitimate children in relation to the mother and adopted children. While for immigration purposes a "child" ceases to be a child even if it fits into the various categories when it reaches the age of twenty-one or becomes married, the parent, once the required relationship has been established, always remains a parent. This conclusion is warranted not only by a study of the legislative history but from a careful reading of the words of the statute. In view of the conclusion reached, the conflict has been resolved and the need for certification to the Attorney General no longer exists.

The meritorious factors in the case has already been dwelt upon. The respondent has already been granted advance permission to reapply for admission after deportation. In addition, we will authorize voluntary departure and preexamination. In preexamination proceedings, the respondent will be eligible for consideration of the relief contained in section 7 of the Act of September 11, 1957.

Order: It is ordered that the outstanding order and warrant of deportation be and the same is hereby withdrawn.

It is further ordered that the alien be permitted to depart from the United States voluntarily without expense to the Government, to any country of his choice, within such period of time, in any event not less than 90 days, and under such conditions as the officer-incharge of the district deems appropriate.

It is further ordered that preexamination be authorized, conditioned upon a showing by the alien that he can obtain the prompt issuance of an immigrant visa.

2 Congressional Record, Vol. 103, No. 157, August 28, 1957, pages 14789–14790. MATTER OF V

In DEPORTATION Proceedings

A-8583853

Decided by Board June 1, 1959

Deportability-Section 241(a)(4) of 1952 act—Commitment under Federal

Youth Corrections Act not "sentence to confinement." Commitment for an indefinite term for treatment and supervision under the

Federal Youth Corrections Act of September 30, 1950, as amended (18 U.S.C., chapter 402, sections 5005-5026), is not a "sentence to confinement" within the meaning of section 241 (a) (4) of the 1952 act. (Cf. Matter of R-, A-6881251, Int. Dec. No. 985; Matter of P-, A-8378327, Int. Dec. No. 1043.)

CHARGE:

Order: Act of 1952-Section 241 (a) (4) (8 U.S.C. 1251 (a) (4) ]-Crime

within five years—Embezzlement.

BEFORE THE BOARD

Discussion: This case is before us on appeal from a decision of a special inquiry officer directing the respondent's deportation.

The respondent is a 21-year-old unmarried male whose date of birth appears to be January 23, 1938. He is a native of Czechoslovakia and is either a citizen of that country or of Israel. He last entered the United States on December 9, 1953. Apparently he was lawfully admitted for permanent residence at that time and had not previously resided in this country. On June 2, 1958, the respondent was convicted of having embezzled funds on April 15, 1958, from a Federal savings and loan association in violation of 18 U.S.C. 657, and the court committed him to the custody of the Attorney General for an indefinite term for treatment and supervision pursuant to the Federal Youth Corrections Act (18 U.S.C. 5010(b)) until discharged as provided by 18 U.S.C. 5017(c). The latter provision requires that such a person shall be released conditionally under supervision on or before the expiration of four years from the date of conviction and shall be discharged unconditionally on or before six years from the date of conviction. The issue to be determined is whether the respondent is deportable under 8 U.S.C. 1251 (a)(4).

Counsel contends that there were certain extenuating circumstances in connection with the commission of the offense. He stated that the respondent came to the United States with his parents, his brother and his sister in 1953; that during the period when he was attending high school in this country he fell in love with another student; that she returned to Puerto Rico; and that he followed her there in December 1957. Up to that time, he had lived with his parents in New York City. In April 1958 he was employed as a teller at a Federal savings and loan association in Miami Beach, Florida, and reported a shortage in his cash account of $420. Subsequently, he admitted that he had taken the money and he returned $410 of the sum. When he was arrested, he was ashamed to tell his parents in New York City and was represented by a court-appointed attorney. Apparently the respondent has not been arrested on any other occasion. During the oral argument, counsel stated that the respondent's father was naturalized as a United States citizen on March 9, 1959. None of this information appears in the record itself, and we must determine the issue of deportability on the basis of the statutory provisions and without regard to whether there were mitigating circumstances. For the reasons hereinafter stated, we conclude that the respondent is not deportable and other contentions of counsel need not be discussed.

8 U.S.C. 1251 (a) (4) requires the deportation of any alien who “is convicted of a crime involving moral turpitude committed within five years after entry and either sentenced to confinement or confined therefor in a prison or corrective institution, for a year or

The respondent was committed under the Federal Youth Corrections Act of September 30, 1950, as amended (18 U.S.C., chapter 402, sections 5005–5026). The question here is whether this respondent's commitment is within the purview of the language of 8 U.S.C. 1251 (a) (4).

The word "convicted” in 8 U.S.C. 1251(a) (4) has been construed to require finality of conviction (Matter of L-R-7 I. & N. Dec. 318 (Atty. Gen., 1957); Matter of 0-71. & N. Dec. 539

;

I. (1957)). In the first case, the Attorney General ruled that the "conviction” did not satisfy the requirement of the deportation statute because the sentence had been entered under a provision of the law of Texas that "neither the verdict of conviction nor the judgment entered thereon shall become final,” except upon final conviction for another felony. There is also a statutory provision in California which permits a defendant, after completion of probation, to withdraw a plea of guilty or have a verdict of guilty set aside, after which the court is required to dismiss the accusatic is or information against the defendant. Thereafter, the expunged conviction is not a basis for deportation (Matter of 0-1, 4 I. & N. Dec. 265 (1951)).

* * *

more

562713-61-25

« ÎnapoiContinuați »