ercise of the Attorney General's discretion to consent to his applying for a visa and for admission to the United States. The Southeast Regional Commissioner has ruled that he does not and is of the opinion that the applicant's conduct and behavior of the more recent years has not been persuasive of any reformation on the applicant's part. The basis for this conclusion is fully set out in the decision. of May 28, 1965 and need not be repeated here.

As a prefatory comment to the weighing of whether discretion should be favorably exercised, it must be borne in mind that, although a successful applicant under section 212 (h) of the Act naturally gains a benefit, the basic purpose in granting a waiver is to render relief to a citizen or lawful resident alien who is in extreme need thereof, unless to do so would be contrary to the good of the public in general. We have already found that the requisite hardship exists and that the applicant's admission would not be contrary to the public interest.

It is recognized that for a long period of years prior to 1961, the applicant's life was marked by marital discord, apparently of his own making, and a pattern of irresponsible conduct which eventually resulted in two convictions for petty criminal offenses. However, he has had no criminal record since 1960 and his present marriage, despite his unsuccessful previous ones, appears stable. The latter is evidenced by the persistence displayed by his wife in her efforts to enable him to rejoin her here as well as her many trips abroad to be with him.

The Regional Commissioner has drawn an adverse inference as to the applicant's reformation from the fact that the applicant (and his wife) became the subject of multiple civil suits late in 1963 and in 1964 for debts previously incurred. It is not believed that such an inference is warranted by the record. It is asserted by the applicant and his wife that these debt actions stemmed from his business failure. There is no evidence of wrong-doing in incurring them. It is also noted that no effort has been made to avoid their payment through the medium of bankruptcy proceedings or otherwise.

We draw a favorable inference as to a more responsible attitude on the part of the applicant from his voluntary departure in an effort to correct his immigration status, although he knew that the Service had been unable to effect his deportation.

The only substantial adverse information of record, following his 1963 departure, is the fact that, although excludable, he made three entries to this country in 1964, as a documented non-immigrant, and a statement from the American Consul in Santiago, Chile (with whom he had only official contact) expressing strong doubt as to his

integrity and good reputation in the community. With regard to the former, the record reflects that these entries were made during a period of great stress on the part of his wife and there is nothing to indicate that fraud or misrepresentation was involved in the obtaining of entry documents. As to the Consul's statement, opposed thereto is a letter from another United States Government official attesting to his personal acquaintanceship with the applicant in Santiago and his good character. In addition, there has been received, in connection with this review, a letter from another United States Government officer who also knew the applicant personally, which is entirely favorable to him. In each instance, the writers were aware of his prior difficulties. The record also contains statements from other responsible persons, who knew the applicant in New York City, which reflect favorably on his present character.

The applicant's earlier irresponsibility and misconduct cannot be, and are not, condoned. However, on the basis of the compassionate factors and present record it is concluded that, in the exercise of the Attorney General's discretion, the applications should be granted. ORDER: It is ordered that the application of F-H-B—, also known as F-B—, for permission to reapply for admission to the United States after deportation be and is hereby granted.

It is further ordered that the application for waiver of excludability under section 212 (a) (9) of the Immigration and Nationality Act, be and is hereby granted pursuant to the authority contained in section 212 (h) of the Act, PROVIDED that the waiver shall apply only to the grounds for exclusion described herein.

MATTER OF DE LUCIA*

In Deportation Proceedings

A-11129289

Decided by Board April 21, 1966

(1) Claim of prejudgment is rejected absent evidence the outstanding order of the Attorney General has not been followed which directs all Service and Board officers exercising hearing powers to use their "independent judgment" and "give each alien a fair and impartial trial without prejudgment." (2) Alleged undue publicity in the press does not preclude a fair deportation hearing; neither does Government refusal to permit counsel for respondent to review a character investigation report, not introduced into evidence; nor does denial of respondent's request to subpoena certain Government officials where it is clear from the record their testimony would not have been relevant to the issues of relief under sections 249, 212(h) and 243(h). (3) In finding a lack of good moral character for the purposes of section 249 of the Act, the special inquiry officer did not err in considering respondent's illegal gambling activities in 1962, his imprisonment from July 1959 to October 1961, and his failure to testify truthfully during the reopened hearing. (4) Notwithstanding respondent's long residence and close family ties in the United States, since the creation of a record of admission for permanent residence pursuant to section 249 of the Act, as amended, is a matter of administrative grace, his application therefor is denied where he has submitted no affirmative evidence of his genuine reformation or rehabilitation and by his equivocal answers and his refusal to answer relevant questions during the hearing he has failed to come forward with full information within his knowledge regarding his activities which has a direct bearing on his application.

(5) Reopening of proceedings for the introduction of additional evidence on the issue of political persecution is denied as no purpose would be served thereby since ample evidence of record affirmatively establishes that respondent, if deported to Italy, would not be subject to persecution within the meaning of section 243 (h) of the Act, as amended by Public Law 89-236, because of his criminal record in the United States. CHARGES:

Order: Act of 1952-Section 241(a)(1) [8 U.S.C. 1251(a) (1)]—Excludable

by the law existing at the time of entry, to wit: a

*Affirmed, De Lucia v. Immigration and Naturalization Service, 370 F.2d 305 (C.A. 7, 1966).

person who has not presented an unexpired passport or official document in the nature of a passport issued by the government to which he owes allegiance, or other travel document showing his origin and identity, as required by the Passport Act of May 22, 1918, and the Executive Order in effect at the time of entry.

Act of 1952-Section 241 (a) (1) [8 U.S.C. 1251(a) (1)]—Excludable by the law existing at the time of such entry, to wit: a person who has been convicted of a felony or other crime or misdemeanor involving moral turpitude prior to entry into the United States, under section 3 of the Act of February 5, 1917, to wit: voluntary homicide.

The respondent is a native of Italy. He has been found deportable under the provisions of section 241(a)(1) of the Immigration and Nationality Act as an alien who was excludable at the time of entry, in that, he did not present the required immigration documents and had been convicted of a crime involving moral turpitude prior to entry, to wit, voluntary homicide (8 U.S.C. 1251(a)(1)).

1

The case was last before us in September of 1964. An order entered on that occasion granted the respondent's motion to reopen the proceedings for the "limited purposes" mentioned in a stipulation between opposing counsel which was approved by the Court of Appeals for the Seventh Circuit on August 27, 1964. Pursuant to the Board's order, reopened hearings were accorded the respondent in November 1964, February, March and June 1965.

The respondent has applied for the creation of a record of his lawful entry pursuant to section 249 of the Immigration and Nationality Act (8 U.S.C. 1259); a waiver of the criminal ground of inadmissibility under section 212 (h) of the Immigration and Nationality Act, as amended (8 U.S.C. 1182 (h)) which if granted would remove an existing bar to relief under section 249 (supra) and the withholding of his deportation to Italy under the provisions of section 243 (h) of the Immigration and Nationality Act (8 U.S.C. 1253 (h)). The special inquiry officer in an order entered on October 25, 1965 denied the respondent's applications for discretionary relief and ordered his deportation to England. An alternative order

The "limited purposes" set forth in the stipulation provide in substance that the case be remanded to the Board of Immigration Appeals on motion to reopen "solely for the purpose of presenting to a special inquiry officer (the respondent's) application for relief under section 243 (h) of the Immigration and Nationality Act and for any other discretionary relief to which he deems himself entitled and to have the special inquiry officer designate the country to which deportation shall be effected." There is also a provision in the stipulation which provides that the respondent will waive any discretionary relief now available to him for which he does not apply during the reopened hearing,

of deportation to Italy was also entered if England is unwilling to accept him. The respondent's appeal from this order is now before

us.

The respondent is a male alien, 67 years of age. He last entered. the United States through the port of New York on August 12, 1920. He was found deportable in 1959 as an alien who had entered the United States without proper documents and as an alien who had been convicted of voluntary homicide in 1917, a crime involving moral turpitude committed prior to entry. The order of deportation was affirmed by the Circuit Court of Appeals for the Seventh Circuit in 1961. De Lucia v. Flagg, 297 F.2d 58, cert. den. 369 U.S. 837. The respondent is married to a lawfully resident alien and is the father of two male American citizen children, veterans of World War II and a female American child, the mother of his five grandchildren.

The record created during the reopened hearings consists of some 370 pages of testimony and more than 130 exhibits. Extensive briefs and supplemental briefs submitted by counsel for the alien and the Deputy General Counsel of the Immigration Service are before us for consideration. The record, the briefs and oral argument have been thoroughly reviewed. Our decision, however, will be limited solely to a determination of whether the respondent has been accorded a fair hearing and to a determination of whether an exercise of the Attorney General's discretion is warranted with respect to relief under sections 249, 212 (h) and 243 (h) of the Immigration and Nationality Act (supra).

THE ISSUE OF WHETHER THE RESPONDENT HAS BEEN

ACCORDED A FAIR HEARING

Counsel for the respondent maintains that his client has not been accorded a fair hearing during the reopened proceeding. He alleges that the special inquiry officer prejudged the respondent's applications for discretionary relief; that respondent's case has been prejudiced by undue publicity in the press; that there was prejudicial error in that respondent was not permitted to examine a character investigation report and that favoritism was shown the Government in the issuance of subpoenas and during the cross-examination of the respondent whereas respondent's request to subpoena certain local and Government officials and to cross-examine Government witnesses was wholly denied or extremely limited.

We find no substance to counsel's claim that the respondent has been denied a fair hearing on his applications for discretionary relief.