Matter of G-

Cite as 5 I&N Dec. 559

IN THE MATTER OF G-

In DEPORTATION Proceedings E-079411

Decided by the Board December 9, 1953 Motion for reconsideration denied January 8, 1954

Prostitution-Excludability under section 212 (a) (12) of the Immigration and Nationality Act when practiced prior to entry and not regarded as a crime where committed-Deportability-Good moral character-Voluntary departure.

(1) A person who had abandoned the practice of prostitution more than 2 years prior to her arrival in the United States was, nevertheless, excludable under section 212 (a) (12) of the Immigration and Nationality Act since the express language of the statute embraces those who have engaged in prostitution in the past, and is, therefore, deportable under section 241 (a) (1) of the act, although such a person would not have been deportable under the Immigration Act of 1917.

(2) The fact that the prostitution was committed in French Morocco where such conduct is not a crime, does not alter the excludability since the statute prescribes prostitution, not the conviction of prostitution or a related crime.

(3) Under section 241 (d) of the Immigration and Nationality Act there is no limitation on the institution of deportation proceedings merely by reason of the fact that the ground of deportability arose prior to the enactment of the act.

(4) Since the respondent is a member of one of the classes embraced in section 212 (a) (12) of the Immigration and Nationality Act, she is precluded from establishing good moral character during the required period pursuant to section 101 (f) (3) of the act. CHARGES : Warrant : Immigration and Nationality Act-No immigrant visa. Immigration and Nationality Act-Engaged in prostitution prior to entry.

BEFORE THE BOARD

(December 9, 1953 )

Discussion : This is an appeal from an order of the special inquiry officer finding the respondent deportable and directing her deportation. The respondent is a 28-year-old married female, a native and citizen of French Morocco, whose only entry into the United States occurred at the port of New York on June 3, 1953, at which time she was admitted as a visitor for pleasure until September 2, 1953. She has admitted that at the time of her entry it was her intention to marry

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a citizen of the United States and remain here permanently with him although not in possession of an immigrant visa. She has also admitted that she was an inmate of a house of prostitution and engaged in prostitution in French Morocco from 1949 until about May 1, 1951. The special inquiry officer has found her deportable on both warrant charges. On this appeal counsel urges that since, according to the respond- ent's testimony, she was not asked whether she had engaged in prostitution when she applied for the visitor's visa, said visa was valid and the " no immigrant visa" charge should not be sustained. Needless to say the "no immigrant visa" charge is predicated not on the re- spondent's nondisclosure of prostitution, but upon her intention, at the time of her entry, to marry and remain in the United States permanently. Since this intention rendered her an immigrant, she was excludable at entry as an immigrant without a visa and was therefore deportable on that ground under section 241 (a) ( 1) of the Immigration and Nationality Act. Counsel also urges that the respondent was not excludable because she had abandoned the practice of prostitution more than 2 years prior to her arrival in the United States, and was not coming to this country for the purpose of practicing prostitution. He refers to our decision in Matter of S , 55872/461, 1, I. & N. Dec. 378 (1943) , wherein we stated "The past practice of prostitution is not a basis for exclusion. " That case arose under section 3 of the Immigration Act of February 5, 1917, as amended, the pertinent portion of which excluded from admission to the United States * * * "prostitutes or persons coming into the United States for the purpose of prostitution or for any other immoral purpose." Because of the wording of that section it has been construed to relate to the conduct of the alien at the time of application for admission to the United States, and not to misconduct in the past. The language of the Immigration and Nationality Act under which the instant proceeding is brought is much broader. Section 212 (a) of that act excludes from admission into the United States :

(12) Aliens who are prostitutes or who have engaged in prostitution, or aliens coming to the United States solely, principally, or incidentally to engage in prostitution * * *

By its express language, this section embraces not only those who are presently prostitutes but also those who have engaged in prostitution in the past, or those coming to the United States to engage in prostitution. The language of this section leaves no room for doubt that it was intended to, and does include, aliens who have engaged in prostitution prior to coming to the United States. It is further urged that prostitution is not a crime in French Morocco and therefore the respondent is not excludable. However,

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the language of section 212 (a) (12) quoted above makes no reference to a crime. The conduct proscribed is prostitution, not the conviction of prostitution or a related crime. Consequently, the respondent is excludable under this section and therefore deportable under section 241 (a) (1) of the Immigration and Nationality Act. It is further contended that in any event, under the law of Florida where the respondent resides there is a 2-year statute of limitations on all offenses not punishable by death and that since the respondent had not engaged in prostitution for more than the past 2 years the warrant charges should not be sustained. We need only point out that deportation proceedings are not criminal proceedings ( Zakonaite v. Wolf, 226 U. S. 272 (1912) ) , and that under section 241 (d) of the Immigration and Nationality Act there is no limitation on the institution of deportation proceedings merely by reason of the fact that the ground of deportability arose prior to the enactment of that act.

The record reflects that the respondent was married on June 15, 1953, to the person whom she intended to marry on her arrival and that he is now serving in the United States Armed Forces. Despite that fact, there is no relief which we can grant to her. Under section 101 ( f) ( 3) of the Immigration and Nationality Act a finding of good moral character requisite for any discretionary relief is pre- cluded because the respondent is a member of one of the classes of aliens embraced in section 212 (a) (12) of that act. Accordingly, we find no error in the order of the special inquiry officer and will dismiss the appeal. Order : It is ordered that the appeal be and the same hereby is dismissed. BEFORE THE BOARD (January 8, 1954)

This case comes forward on motion of counsel dated December 29, 1953, requesting reconsideration of our decision of December 9, 1953, or reopening of the hearing for the purpose of affording the respondent an opportunity to depart voluntarily from the United States, in lieu of deportation. When this case was last before us on December 9, 1953, we dismissed the appeal from an order entered by the special inquiry officer on August 3, 1953. The evidence of record conclusively establishes that the respondent is subject to deportation on the charges stated in the warrant of arrest. No good purpose would be served in reopening the hearing for the purpose of affording the respondent permission to apply for the discretionary relief of voluntary departure inasmuch as the respondent could not establish good moral character for the period required by statute (sec. 101 ( f) (3) of the Immigration and Nationality Act of 1952 ) .

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Counsel's motion presents no facts not heretofore fully considered by this Board. Upon full consideration of all the evidence of record together with counsel's representations by brief on motion, we will direct that the following order be entered in this case. Order : It is ordered that the motion be denied.

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