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spouse, parent or child. Although the special inquiry officer held that extreme hardship meant something less than exceptional and extremely unusual hardship, he was not satisfied that the respondent's case met this statutory requirement.
The respondent asserts that his deportation would result in extreme hardship to him and to his father. The latter has lived in this country since his lawful admission on September 20, 1922, and he was naturalized as a United States citizen on June 27, 1958. On November 6, 1961 the respondent testified that his father was partially paralyzed, and the record contains a certificate (Ex. 10) from a physician indicating that the respondent's father has been under his medical care since March 8, 1960 and is permanently disabled. From 1952 until recently, the respondent lived with his father in Los Angeles but the latter, who is 72 years old, is now in the International Guest Home in that city. The respondent testified that the cost of his father's maintenance is about $125 per month; that this is paid by Los Angeles County; that his father has no income; that he receives an old age pension of $125 which he returns to the International Guest Home; that he (the respondent) contributes about $50 monthly toward his father's support and care; and that he takes his father to the doctor each week (pp. 13-15). Apparently the respondent and his father have no close relatives in the United States. In view of the father's advanced age and physical condition, we believe it would be extremely harsh, both to the respondent and his father, to deport this alien from the United States.
The respondent states that he desires to bring his wife and son to the United States from Hong Kong. He testified that he has never been a member of the Communist Party of any country and has not been a member of any organization affiliated with the Party, and there is nothing to indicate such membership. He testified that he fears physical persecution if returned to Communist China because he is opposed to communism and fled China for that reason. However, the special inquiry officer did not direct deportation to Communist China but to the Republic of China on Formosa or to Hong Kong. The respondent also stated that he cannot return to Hong Kong because he never established residence there. The respondent has lived continuously in Los Angeles since March 1952—a period of 11 years. If the respondent were deported to Formosa or Hong Kong, we believe he would experience great difficulty in obtaining employment or in adjusting to life in a new country, particularly since he is now 42 years of age.
In view of the foregoing, it is our considered opinion that the respondent's deportation would result in extreme hardship to him and to his United States citizen father. Hence, his case meets all the statu
tory requirements of section 244(a) (1) of the Immigration and Nationality Act as amended. We also believe that this case merits the exercise of the discretion to suspend deportation. Accordingly, the respondent's application for suspension will be granted.
ORDER: It is ordered that the order of deportation entered by the special inquiry officer be withdrawn and that the deportation of the alien be suspended under the provisions of section 244(a) (1) of the Immigration and Nationality Act as amended.
It is further ordered that if the Congress takes no action adverse to the order granting suspension of the alien's deportation, the proceedings be cancelled, and the alien, if a quota immigrant at the time of entry not then charged to the appropriate quota, be so charged as provided by law.
It is further ordered that in the event the Congress takes action adverse to the order granting suspension of deportation, these proceedings shall be reopened upon notice to the respondent.
MATTER OF McCARTHY
In DEPORTATION Proceedings
Decided by Board March 29, 1963
A native of Canada, who is ineligible to obtain a nonquota immigrant visa because
of his prior criminal convictions, comes within the proviso of section 244 (f) (3) of the Immigration and Nationality Act, as amended, and is, therefore, eligible for suspension of deportation under section 244 (a)(1) of the Act, as amended,
having satisfied all the statutory requirements for such relief. CHARGES : Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251 (a) (1)]-Excludable
at entry, previously deported. Lodged: Act of 1952—Section 241 (a) (1) 18 U.S.C. 1251 (a) (1)]-Excludable
at entry, crime prior to entry.
The case comes forward pursuant to certification of the decision of the special inquiry officer dated January 31, 1963 denying the motion of the District Director dated December 21, 1962 to reconsider the order of the special inquiry officer dated December 14, 1962 granting suspension of deportation under section 244(a)(1) of the Immigration and Nationality Act as amended.
The record relates to a native and citizen of Canada, 45 years old, male, married, who first entered the United States as a child in 1924. He was deported in 1936 after the commission of several crimes. He returned illegally in 1937, and was deported again on July 8, 1948. He has never applied for nor received permission to return to the United States. The respondent last entered the United States at Niagara Falls, New York on January 12, 1952. He is deportable as charged in the order to show cause.
The respondent was convicted on December 22, 1933 in the City Court, Buffalo, New York of the offense of petty larceny. He was similarly convicted in February 1936. Larceny is a crime involving moral turpitude. The respondent is subject to deportation on the lodged charge also.
The respondent has applied for suspension of deportation under section 244(a)(1) of the Immigration and Nationality Act, as amended. He began living with the woman who is now his wife in 1942 and did not legalize their marital status until they married each other on July 4, 1953. His wife is a legal resident alien. They have three children, all native-born citizens of the United States, who are 8, 16, and 19 years of age, all of whom reside at home with their parents. The oldest child is now employed and the respondent's wife and other two children are not employed.
As has been pointed out by the special inquiry officer, the respondent meets all the requirements of section 244(a) (1) of the Immigration and Nationality Act, as amended, including extreme hardship to his legal resident wife and at least two of the United States citizen children in the event he were deported; good moral character; no connection with subversive groups; registration under the Selective Training and Service Act during World War II; and adequate length of residence.
The motion to reconsider dated December 21, 1962 was based upon the amendment to section 244 of the Immigration and Nationality Act by the Act of October 24, 1962, and incorporated a reference to Board of Immigration Appeals decision, file A-15685290 (November 5, 1962). In the latter case, Matter of Vara-Rodriguez, Int. Dec. No. 1254, we held that an alien who entered the United States as a crewman is not statutorily ineligible for voluntary departure under section 244(f) of the Immigration and Nationality Act as amended by the Act of October 24, 1962. This case has no application to the situation before
Section 244(f) (3) of the Immigration and Nationality Act as amended by the Act of October 24, 1962 provides as follows:
(f) No provision of this section shall be applicable to an alien who (3) is a native of any country contiguous to the United States * * * provided that the Attorney General may in his discretion agree to the granting of suspension of deportation to an alien specified in clause (3) of this subsection if such alien establishes to the satisfaction of the Attorney General he is ineligible to obtain a nonquota immigrant visa.
As pointed out by the special inquiry officer in denying the motion to reconsider, this language is essentially the same language as contained in section 244(b) of the Immigration and Nationality Act (8 U.S.C. 1254(b)) prior to its amendment on October 24, 1962, the language therein reading as follows:
* * the provisions of this subsection shall not be applicable to any alien who is a native of any country contiguous to the United States or any adjacent island, unless he establishes to the satisfaction of the Attorney General that he is ineligible to obtain a nonquota immigrant visa.
Thus it can be seen that the amendatory act differed in nowise from its predecessor. In Conference Report No. 2552, Statement of the
Managers on the part of the House, as appended to No. 18 U.S. Code Congressional and Administrative News (87th Cong., 2d Sess.), p. 5489, the only reference to the amended language is a statement that it specifically excludes the granting of relief to (1) alien crewmen, (2) persons who entered the United States under educational exchange programs, and (3) natives of countries continguous to the United States or islands adjacent to the United States with certain specified exceptions. In commenting on the prior law regarding suspension of deportation section 19(c) of the Act of February 5, 1917, as amended, the existing law of suspension of deportation was criticized on the ground that it did not appear that the law is prompted by any necessity to give relief to aliens who were nationals of territory adjacent to the United States; and that alien parents and many alien children entered the United States illegally from territories contiguous to the United States, and suspension of deportation was granted the parents if serious economic detriment would result to the citizen child if the parents were deported, that the cases of alien children were held in abeyance pending determination of the parents' applications for suspension of deportation and that if the parents finally received suspension of deportation and thus became legally resident aliens, application is then made in behalf of the minor alien children. The law as finally enacted prohibited the grant of suspension of deportation to natives and citizens of continguous territory unless they were able to establish that they were ineligible to obtain nonquota immigrant visas.
The respondent, who is a native and citizen of Canada, is ineligible to receive a nonquota visa because of the commission of the crimes which form the basis for the lodged charge of inadmissibility. Although the respondent might be able to obtain the issuance of a visa with the grant of a waiver of the grounds of inadmissibility pursuant to section 5 of the Act of September 11, 1957 (now section 212(g) of the Immigration and Nationality Act as amended by section 14 of the Act of September 26, 1961), it might not be easily accomplished ; and he would be compelled to wait outside the United States, away from his family, who would be forced to seek public relief in his absence.
While the legislative history is silent except as otherwise indicated on the point of granting suspension of deportation to natives of countries contiguous to the United States, the plain language of both sections 244(b) and 244(f)(3) of the Act as amended by the Act of October 24, 1962, is that the benefits of section 244 (a) (1) may not be granted to an alien of contiguous territory unless he establishes that he is ineligible to obtain a nonquota immigrant visa. The alien in the
Senate Report No. 1515, Report of the Committee on the Judiciary pursuant to Senate Resolution 137 (81st Cong., 2d Sess.), pp. 600-601.