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relating to his departure, and the delays which sometimes result from en forced expulsion are eliminated.
It is a well-settled rule of statutory construction that a case may be within the meaning of a statute and not within its letter or within its letter and not within its meaning, and that a statute should be construed so as to carry out the intent of the legislature, although such construction may seem contrary to the letter of the statute. Stewart v. Kahn, 78 U.S. 493, 504 (1871); Church of the Holy Trinity v. United States, 143 U.S.457 (1892).
We have carefully examined the legislative history of the statutory provision here involved, and we observe that there is a complete absence of anything which would indicate an intention of changing the original provisions of section 244(e) under which voluntary departure could be granted to any alien who met the requirements of that subsection. The discussion in the Senate as it appears in the Congressional Record of October 13, 1962 (Vol. 108, p. 22169) relates entirely to adjustment of status through suspension of deportation without any reference to the relief of voluntary departure. The Congressional Record of October 12, 1962 (Vol. 108, p. 22153) shows that in the House of Representatives Honorable Francis E. Walter, in explaining the bill, stated in part as follows:
Basic principles of a sound immigration policy and our continuous concern to preserve the integrity of the very important international educational exchange program caused the conferees to exclude from the benefits of this legislation those aliens who enter the United States as crewmen or exchange visitors. Similar exclusion, with specified exceptions applies to natives of countries and islands contiguous or adjacent to the United States.
If any alien in these classes becomes subject to deportation proceedings, maximum relief which could be accorded him would be discretionary action by the Attorney General who may permit such alien to leave the United States without prejudice to his future, lawful entry, provided that he or she leaves the United States promptly when ordered by the Attorney General to do so. (Emphasis supplied.)
We believe that Congressman Walter's remarks make it quite clear that it was the intention and understanding of Congress that the provisions of subsection (f) of section 244 applied only to the subsections pertaining to suspension of deportation and were not intended to apply to subsection (e) which authorizes the granting of voluntary departure. In view of the foregoing, it is our considered opinion that section 244(f) does not preclude the granting of voluntary departure to an alien who entered the United States as a crewman. The special inquiry officer concluded that the respondent was statutorily eligible for voluntary departure and apparently found that good moral character for five years had been established. We concur in these conclusions.
With respect to the remaining issue, it is obvious from this record that the respondent was not one who secured employment as a seaman for the purpose of coming to the United States and deserting his ship. He stated that he worked as a seaman for about 18 years and came to the United States on about 15 to 18 occasions, his first arrival being about 1944. He testified that he departed with his vessel each time except on his last arrival and an arrival in 1954 when he inadvertently failed to return to his vessel before its departure. At that time he remained ashore until 1956 when he was apprehended by the Service and was permitted to depart voluntarily. He testified that he has sufficient funds for his departure and is ready and willing to depart voluntarily at his own expense if that relief is granted. His wife and three children reside in Spain and are supported by the respondent. We conclude that this case merits the granting of voluntary departure, and this relief will be granted in the exercise of our discretion. Accordingly, the following order will be entered.
ORDER: It is ordered that the appeal be sustained; that the outstanding order of deportation be withdrawn; and 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, and under such conditions as the officer-in-charge of the District deems appropriate.
It is further ordered that if the alien does not depart from the United States in accordance with the foregoing, the order of deportation be reinstated and executed.
MATTER OF FRISONE
In DEPORTATION Proceedings
Decided by Board November 19, 1962
An alien who has been the beneficiary of a visa petition based on a marriage
found later to have been contracted for the purpose of evading the immigration laws (section 205 (c)) cannot claim the benefit of the waiver provided by section 241 (f) of the Immigration and Nationality Act, as amended.
(c)]–Visa procured by fraud in violation of section 212(a) (19)
Respondent is 35 years of age, married, male, alien, a native and national of Italy. He first entered the United States in June 1954 as a deserting seaman. He was apprehended by the Immigration and Naturalization Service in October 1954 and was paroled for one week to arrange to post a $1,000 bond. He last arrived in the United States on August 8, 1955 and was admitted for permanent residence upon presentation of a nonquota immigrant visa. This case has been before the Board on several occasions. It is necessary to retrace briefly the proceedings to date. On August 21, 1958, following a thorough hearing, during which respondent was represented by counsel of his choice, the special inquiry officer ordered respondent deported on the charge set forth above. Respondent appealed to this Board, and his counsel filed a brief in support of the appeal. On October 22, 1958 we dismissed the appeal. We found that respondent had obtained his visa on the basis of his marriage to a United States citizen at Syracuse, New York on November 13, 1954, and that marriage was annulled on July 9, 1956. We stated (B.I.A., October 22, 1958, p. 3), "Clearly, the respondent has failed to sustain his burden under the statute and the Government has established by a preponderance of the evidence that he entered into his marriage with Frances Buda to evade the quota requirements of the immigration laws."
During the proceedings in 1958 there was an indication that respondent had entered into another marriage with a United States citizen, but he offered no evidence regarding this marriage during the deportation proceedings and inade no request that the second marriage be considered in any grant of discretionary relief. Counsel's memorandum in support of the appeal to this Board stated that respondent was married to a legally resident alien. The record indicates that respondent's present wife is now a naturalized United States citizen and that two citizen children have been born to this marriage.
There was no action taken in this matter after our order of October 22, 1958 until March 20, 1962 when the Board received a notice of motion for a reopening, reconsideration and termination of warrant proceedings filed by present counsel. The Board heard oral argu
the motion, ordered the outstanding order and warrant of deportation withdrawn and the proceedings reopened. We agreed that evidence relating to respondent's present marriage and his two United States citizen children should be made a part of the record, particularly in light of legislation enacted since the entry of the outstanding order of deportation which, counsel alleged, made respondent nondeportable. We pointed out that the proceedings also should be reopened in order to give the Service an opportunity to consider or oppose the grant of relief sought by counsel under the new legislation.
Following the reopened hearing on July 3, 1962, and the filing of briefs by both counsel for the alien and by the examining officer, the special inquiry officer denied respondent's application for the waiver nunc pro tunc provided by section 16 of the Act of September 26, 1961, adding section 241 (f) to the Immigration and Nationality Act. The special inquiry officer granted him voluntary departure. The special inquiry officer found that deportation of respondent would result in serious detriment and hardship to his citizen wife and children, that the wife is unemployed and that respondent is the sole support of the family. The special inquiry officer denied the nunc pro tunc waiver under section 241(f) solely on the ground that he found the alien not to have been "otherwise admissible”, as required by that section, at the time of his last entry on August 8, 1955.
1 Section 16 of the Act of September 26, 1961 provides :
Sec. 16. Section 241 of the Immigration and Nationality Act (8 U.S.C. 1251) is hereby amended by adding the following:
(f) The provisions of this section relating to deportation of aliens within the United States on the ground that they were excludable at the time of entry as aliens who have sought to procure, or have procured visas or other documentation, or entry into the United States by fraud or misrepresentation shall not apply to an alien otherwise admissible at the time of entry who is the spouse, parent, or a child of a United States citizen or of an alien lawfully admitted for permanent residence.
At the time of his last entry respondent was the beneficiary of a visa petition filed by his first wife and previously was accorded nonquota status under section 101 (a) (27)(A). We have again reviewed the entire record. The special inquiry officer's decision restates at some length facts which were adjudicated by the special inquiry officer and this Board in 1958. Counsel argues that this constituted a reopening of the entire record, and justifies his request to cross-examine the alien's first wife. He seeks, first, to readjudicate the issue of whether the first marriage was fraudulent upon the part of the alien, asserting that the marriage broke up after seven or eight months of genuine effort by the alien to make it a good marriage. Counsel pleads that the marriage was basically a misalliance, and that the religious barrier was only one of the obstacles.
There is no claim of new evidence relating to the first marriage which required the presence of the first wife at the reopened hearing. The fraudulent nature of the first marriage was established in 1958. The alien contracted a second marriage which is undoubtedly bona fide. It was to give him an opportunity to show the facts of the new marriage, asserted as the basis for relief, that this case was reopened and returned to the special inquiry officer. The refusal of the special inquiry officer to subpoena the first wife and to treat the case as a hearing de novo was not error.
Counsel argues, second, that respondent did not commit a fraud by entering as the nonquota spouse of a United States citizen, because for some purposes an annulment does not annul the marriage from the beginning, but only from the date of the annulment. Counsel claims that the Domestic Relations Law of New York makes respondent's first marriage void only from the time a judgment is rendered by the court. He quotes section 7 of that statute as follows, "A marriage is void from the time its nullity is declared by a court of competent jurisdiction if either party thereto ... (4) consents to such marriage by reason of force, duress or fraud.” Counsel admits that the New York cases generally sustain the idea, in spite of the statutory declaration, that a voidable marriage declared void by a court is void ab initio. Counsel contends, however, there is a minority view and cites Barker v. Barker, 172 App. Div. 244 (1916).
The special inquiry officer found respondent was not the lawful spouse of a United States citizen at time of entry and was not, therefore, a nonquota immigrant. He states (special inquiry officer, August 9, 1962, p. 11):
Had all the facts been known by the Government on August 8, 1955, the date of respondent's entry, he would have been found inadmissible under section 212