A-7596142
Decided by Board January 31, 1951 Decided by Acting Attorney General March 23, 1951 Decided by Board August 3, 1951
Seventh proviso — Section 3 of the Immigration Act of February 5, 1917 — Discretion exercised as of date of grant — Effect of subsequent passage of section 6 (a) of the Act of October 16, 1918, as amended by the Internal Security Act of 1950.
The action of exercising the authority in the seventh proviso to section 3 of the Immigration Act of February 5, 1917, occurs on the date it is granted even though it is to be effective at some future time when there is to be a physical entry into the United States; so that a grant of 7th proviso relief in 1949, covering a case falling within the purview of section 1 of the act of October 16, 1918, as amended by the Internal Security Act of 1950 is not affected by the provisions of section 6 (a) of that act, as amended and may be utilized on a physical entry into the United States, after the amendment of that act in 1950. (See 3 IN Dec. 784 for previous decisions in this case.)
BEFORE THE BOARD
(January 31, 1951)
Discussion: This case is now before the Board on a motion filed by the Acting Commissioner asking that the decision of this Board of November 8, 1949, approved by the Acting Attorney General November 16, 1949, which authorized the admission of the applicant under the provisions of the 7th proviso in regard to past membership in the German Communist Party, be withdrawn. Mr. Sternberg on behalf of the applicant, filed a memorandum in opposition to the Acting Commissioner's motion.
The applicant involved was born in Germany in 1900. In 1919, when he was but 19 years of age, he joined the Independent Social Democratic Party of Germany. That party merged into the Communist Party of Germany in 1921. He remained with the party until December 1928 when he was expelled. He has not been a member of the Communist Party or affiliated with any Communist organization, or any organization that has espoused communistic doctrines since 1928, and alleges at no time did he believe in the philosophy of force espoused by the Communists. The applicant has lived here since April 16, 1941. He has been thoroughly investigated and no evidence whatever of subversive activities or subversive inclinations has been discovered.
The motion of the Service points out the provisions of section 6 (a) of the act of October 16, 1918, as amended by the Internal Security Act of 1950. This provision of law reads as follows:
The provisions of the 7th proviso to section 3 of the Immigration Act of February 5, 1917, as amended ( 39 Stat. 875; 8 U.S.C. 136), relating to the admission of aliens to the United States, shall have no application to cases falling within the purview of section 1 of this act.
It is clear, of course, the applicant's case is included within section 1 of the act of 1918, as amended. The only question before us is whether this amendment, which became law on September 23, 1950, has any application to a grant of the 7th proviso occurring prior to its enactment. In explanation of his position, the Acting Commissioner merely states that it would appear that if the alien departed from the United States, he would, upon return, be found excludable under the 1918 act, and at such time could not be admitted under the 7th proviso.
It is our view that the applicant's admission under the 7th proviso was authorized on November 16, 1949, when the Acting Attorney General approved the decision of this Board. If the applicant departs from the country, no action upon his return is needed to direct admission under the 7th proviso. That action was taken November 16, 1949. The language of the amendment, in terms, relates to future cases. It does not purport to affect past action. It is true that the grant of 7th proviso relief by the Acting Attorney General on November 16, 1949, becomes effective upon the applicant's return to the United States, but that is not synonymous with action authorizing admission taken upon the applicant's return to the United States.
A reference to procedure will make this point clear. If the Internal Security Act had not intervened, when the applicant left the country and secured an appropriate immigration visa and returned, he would have been admitted on primary inspection with the immigration visa, notwithstanding his membership in the German Communist Party in the twenties. Primary inspectors have no power to admit under the 7th proviso. On what authority then could the applicant have been admitted? Only on the basis that on November 16, 1949, the Attorney General had directed the applicant's admission under the 7th proviso. The action of exercising the authority in the 7th proviso took place on November 16, 1949, and that is the controlling date, even though it related to an entry thereafter to occur. Section 6 of the act of 1918, as amended by the Internal Security Act, proposes to revoke the authority of the Attorney General (and those to whom he may delegate his authority) to exercise the 7th proviso in reference to subversive cases in the future. This clearly being past action, the statute does not apply.
Although not germane to the issue before us, the applicant's representative points out in detail the efforts the applicant has been making to secure lawful admission under this grant or discretionary action. It is clear that the applicant has been diligent and the delays in securing lawful entry are beyond his control.
The question of law involved in this case is of very limited application. Besides this case, there are four other possible cases where the ruling might be applicable. Within recent times the 7th proviso admission in reference to aliens who have previously been members of the Communist Party or like organizations has been authorized by this Board in but five cases. Whether the aliens in the other four cases have taken advantage of the grant of discretion and have been legally admitted to this country, we do not know; but in any event, the group covered is extremely limited.
It is our conclusion, therefore, that the motion of the Acting Commissioner should be denied. Since, however, there is involved a question of discretionary action relating to a subversive case, we feel that the matter should be brought to the attention of the Attorney General.
Order: It is ordered that the motion of the Acting Commissioner be denied.
The decisions and order of the majority of the Board of Immigration Appeals dated January 31, 1951, are hereby approved.
Discussion: On November 8, 1949, this Board authorized the admission of respondent under the provisions of the 7th proviso to section 3 of the Immigration Act of February 5, 1917, as amended. The Acting Attorney General approved that order on November 16, 1949. On January 31, 1951, we denied a motion of the Acting Commission asking that the grant of 7th proviso relief to respondent be withdrawn because of the provisions of the newly enacted Internal Security Act of 1950 limiting the operation of 7th proviso in this kind of case. Our decision was approved by the Attorney General on March 23, 1951.
The period which respondent has been granted during which to avail himself of this relief has been extended from time to time. His attorney last stated (motion for extension of time in which to perfect preexamination, January 29, 1951), that his extension of time in which to effect entry expired on February 1, 1951, and asked that he be granted an extension until September 1, 1951. A memorandum from the District Director at Philadelphia, Pa., to the Assistant Commissioner, Enforcement Division, Central Office, May 2, 1951, states that the order of this Board dated September 13, 1950, granted respondent only until December 1, 1950, to effect his entry into the United States in accordance with the terms of the original order of this Board dated November 8, 1949, granting 7th proviso relief.
A survey of the file indicates that we never acted upon counsel's motion to extend time to February 1, 1951, filed on November 28, 1950, with this Board, nor upon a similar motion asking an extension to September 1, 1951, filed on January 29, 1951.
In view of the present disposition of this case it appears that respondent should be granted a further extension of time within which to avail himself of the relief granted him. We believe that he should be granted a period of 90 days from the date of notification of decision.
Order: It is ordered that the time within which the respondent may effect his entry into the United States in accordance with the terms of the Board's order of November 8, 1949, be extended until 90 days from the date of notification of decision.
We are compelled to dissent from the opinion of our associates on the legal issue presented by the motion of the Acting Commissioner. Section 3 of the Immigration Act of 1917 (8 U.S.C. 136), after stating that certain classes of aliens, as specified therein, shall be excluded from admission into the United States, provides as follows:
Provided further (7). That aliens returning after a temporary absence to an unrelinquished United States domicile of seven consecutive years may be admitted in the discretion of the Attorney General, and under such conditions as he may prescribe: * * *.
In our consideration of this case on November 8, 1949, we entered an order the pertinent portion of which was as follows:
Order: It is ordered that * * * if the appellant applies for admission to the United States within 6 months from the date of this order, in possession of an appropriate immigration visa, he be admitted under the 7th proviso to section 3 of the Immigration Act of February 5, 1917, if then in all respects admissible, except for his affiliation with one of the aforementioned excludable classes from 1921 to 1928.
It is clear from the language of the statute and the order that the time of operation of the waiver authorized by the Attorney General is the time the alien applies for admission into the United States. The alien has not yet applied for admission; he contemplated doing so when he obtained an immigration visa. Meanwhile the Internal Security Act was enacted. It narrows the scope of operation of the 7th proviso. The act provides:
Section 6 (a). The provisions of the 7th proviso to section 3 of the Immigration Act of February 5, 1917, as amended ( 39 Stat. 875; 8 U.S.C. 136), relating to the admission of aliens to the United States, shall have no application to cases falling within the purview of section 1 of this act.
That language limits the scope of operation of the proviso and its effect, as we believe, is to nullify any outstanding order in conflict therewith. The order of November 8, 1949, authorizing admission pursuant to the 7th proviso, has not been effectuated by the contemplated entry into the United States; and now by reason of the change in the law the authority to enter no longer exists.
The fact that the administrative order was entered pursuant to law as it then existed is beside the point, inasmuch as the amendment provides in specific terms that the proviso "shall have no application to cases falling within the purview of section 1 of this act."
The power of the Attorney General to withdraw an order granting relief under the 7th proviso has never been questioned, and it has been exercised whenever circumstances made such action desirable. If the administrative officer has the power to revoke his grant of relief, there seems to be no reason to question the power of the Congress, from which the administrative officer derives his authority, to withdraw or modify any such grant by the officer, previous to the time that the authority so granted had been brought into execution.
We would grant the motion of the Acting Commissioner for the reasons stated herein.
It is further ordered that the case be certified to the Attorney General in accordance with the provisions of section 90.12 of title 8, Code of Federal Regulations, for review of the Board's decision.