A-10235421
Decided by Board February 19, 1957
Good moral character — Section 101 (f) (7), Immigration and Nationality Act — Applies to confinement endured by an individual whether he was a citizen or an alien.
An individual who falls within the terms of section 101 (f) (7) of the act is precluded from establishing good moral character regardless of whether he was a citizen or alien during the period of his confinement to the penal institution.
CHARGE:
Warrant: Act of 1952 — Section 241 (a) (1) ( 8 U.S.C. 1251 (a) (1)) — Excludable at time of entry as immigrant-no visa.
BEFORE THE BOARD
Discussion: On August 21, 1956, we dismissed respondent's appeal from the order of the special inquiry officer finding him deportable and ineligible for voluntary departure. This is a motion for reopening of proceedings so that counsel may present additional contentions as to the desirability of granting voluntary departure to the respondent. Accompanying this motion received by the Service on November 27, 1956, is an application for voluntary departure received by this Board on December 27, 1956, in which it is requested that reconsideration be made of our order of August 21, 1956, as far as it finds respondent ineligible for voluntary departure. Deportability is not in issue.
Respondent is a 22-year-old male who was a United States citizen until about July or August 1954, when he lost United States citizenship by entering in the armed forces of Canada. The issue is whether a person who was a citizen of the United States at the time of confinement to a penal institution is precluded from establishing good moral character.
To qualify for the benefit of voluntary departure, an alien must establish that he has been a person of good moral character for a period of 5 years (Immigration and Nationality Act, section 244 (e); 8 U.S.C. 1254 (e)). The Immigration and Nationality Act provides that "No person shall be regarded as * * * a person of good moral character" who has been confined to a penal institution for an aggregate period of 180 days or more, during the period for which he is required to establish good moral character (Immigration and Nationality Act, section 101 (f) (7); 8 U.S.C. 1101 (f) (7)).
On about September 1, 1953, respondent was arrested in Canada and charged with theft of a car. He entered a plea of guilty and on September 8, 1953, was convicted of the offense and sentenced to imprisonment for a year. He actually served 9 months. Counsel argues this confinement cannot bar the respondent from establishing good moral character because it occurred at a time when the respondent was still a citizen of the United States. He argues that only confinement which occurred when an individual was an alien precludes him from establishing good moral character.
We are not persuaded by counsel's argument. Section 101 (f) of the Immigration and Nationality Act concerns itself with persons not with aliens. The distinction is important, for the term "alien" is a defined term meaning a person not a citizen or national of the United States (Immigration and Nationality Act, section 101 (a) (3), 8 U.S.C. 1101 (a) (3)), and is used where reference to only aliens is intended. In contrast, the term "person" is defined as meaning an individual or organization (Immigration and Nationality Act, section 101 (b) (3), 8 U.S.C. 1101 (b) (3)), and is used to designate a class into which may fall either citizens, nationals or aliens (e.g., Immigration and Nationality Act, sections 235 (a), 204, 215, 231, 233 (c); 8 U.S.C. 1225 (a), 1154, 1185, 1221, 1223 (c)).
We believe that section 101 (f) (7) applies to confinement endured by an individual whether he was a citizen or an alien. It is a conclusion required by the wording of the statute. Moreover, the guiding philosophy behind the promulgation of the section undoubtedly was that a person who has served a jail term of a specified length is not worthy for special exemptions from the penalties of the immigration laws. It does not matter whether the individual who served time was a citizen or an alien — he would be just as unworthy for a special exemption.
All the issues in this case have been thoroughly explored — the youth of the respondent at the time of the commission of the offense; the fact that it was obligatory upon the judge sentencing him to require him to be confined for a year or more, although later a change in the law gave a sentencing judge the power to suspend sentence; the close family ties of the respondent in the United States; his apparent rehabilitation. We are without power to grant the respondent relief. His deportation must be ordered.
Order: It is ordered that the motion for reconsideration or reopening be and the same is hereby denied.