Matter of R-

Cite as 7 I&N Dec. 229

MATTER OF R

In EXCLUSION Proceedings

A-7226808

Decided by Board June 13, 1956

Reentry permit-Inadmissibility, section 212 (a) (22), 1952 act-Savings clause.

(1) The admissibility of an alien who was issued a reentry permit subsequent to the effective date of the Immigration and Nationality Act must be de termined in accordance with the provisions of that act.

(2) Hence, an alien, lawfully admitted for permanent residence in 1949, who was issued a reentry permit on April 1, 1955, and who is ineligible to citizenship by reason of having filed Form SSS 130 for relief from service and training in the Armed Forces of the United States, is excludable under section 212 (a) (22) of the Immigration and Nationality Act.

(3) The freedom of an alien ineligible to citizenship to make temporary trips abroad and reenter the United States as a returning resident (by reason of the exception found in section 13 (c) of the Immigration Act of 1924) prior to December 24, 1952, is not preserved by the savings clause, section 405 of the Immigration and Nationality Act. The determining factor is the date the reentry permit was issued and not the fact that the applicant had resided in the United States as a lawful permanent resident prior to the effective date of the 1952 act.

EXCLUDABLE : Act of 1952-Section 212 ( a) ( 22) (8 U. S. C. 1182 ( a) ( 22) ) -Ineligible to citizenship by reason of applying for and receiving relief from training and service in the Armed Forces on Form SSS No. 130.

BEFORE THE BOARD

Discussion : A motion is before us to reconsider our decision of February 13, 1956, dismissing the applicant's appeal from an order excluding him under the provisions of section 212 (a) (22) of the Immigration and Nationality Act (8 U. S. C. 1182 (a) (22) ) as one ineligible to citizenship by reason of applying for and receiving relief from training and service in the Armed Forces of the United States. Counsel in his motion challenges the legality of the exclusion order on the ground that the applicant prior to the effective

*EDITOR'S NOTE.-This view was upheld by the Circuit Court of Appeals in Barber v. Rietmann, 248 F. ( 2d) 118 (C. A. 9, 1957) .

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date of the Immigration and Nationality Act of 1952 (8 U. S. C. 1101 et seq. ) acquired a "status" or a "right" which prior to the 1952 act permitted him to reenter the United States after temporary absence and notwithstanding ineligibility to citizenship this "status" or "right" has been preserved by section 405 (a) of the same act (8 U. S. C. A. 1101, note). Recent judicial decisions' relative to the application of section 405 (a) are cited by counsel in support of his motion to reconsider. The record relates to a native and citizen of Switzerland, male, unmarried, 30 years of age,who seeks readmission at the port ofNew York after a temporary absence of approximately 4 months in Switzerland. He applied for admission as a returning resident alien under section 101 (a) (27) (B) of the Immigration and Nationality Act (8 U. S. C. 1101 (a) (27) (B) and presented appropriate documents. Applicant was admitted for permanent residence at the port of New York on July 1, 1949, under section 6 (a) (3) of the Immigration Act of 1924 (8 U. S. C. 206 (a) (3) ) . The applicant has been excluded under section 212 (a) (22) of the Immigration and Nationality Act by reason of a finding that he is permanently ineligible to become a citizen of the United States under the provisions of section 315 (a) of the same act (8 U. S. C. 1426 (a) ) . Counsel takes issue with the conclusions that the applicant is ex- cludable as an alien ineligible to citizenship. He argues that prior to December 24, 1952, the effective date of the Immigration and Nationality Act, the applicant was free to make temporary trips abroad and reenter the United States as a returning resident alien by reason of the exception found in section 13 (c) of the Immigration Act of 1924 (8 U. S. C. 213 (c) ) . He contends that the decisions relied upon (supra, footnote 1) stand for the proposition so aptly stated in the Menasche case ; that the savings clause of the 1952 act manifests a well-established congressional policy "not to strip aliens of advantages gained under prior laws," and that the policy of preservation of such rights was intended to apply to "matters both within and without the specific contemplation of Congress." [Emphasis supplied. ] We do not consider the cases relied upon by counsel as authority for a matter arising under the excluding provisions of the Immigration and Nationality Act of 1952 (8 U. S. C. 1182) . The Menasche and Shomberg cases ( supra, foot note 1) concern naturalization procedure. The Supreme Court in both instances was concerned with

' United States v. Menasche, 75 S. Ct. 513, 348 U. S. 528, 99 L. Ed. 615 (1955) ; United States v. Kershner, 228 F. (2d) 142 ( U. S. C. A. 6, 1955) ; United States v. Lehmann, 136 F. Supp. 458 (U. S. D. C., N. D. Ohio, 1955) ; Shomberg v. United States , 75 S. Ct. 509, 348 U. S. 540, 99 L. Ed. 624 (1955) . 2

348 U. S. p. 535 ; 99 L. Ed. 622.

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the question of whether the general savings clause of the 1952 act (8 U. S. C. 1101, note) preserved certainbenefits accorded to the petitioners under prior legislation notwithstanding the fact that the hearing on the petitions was barred by the new act. The two remaining cases (supra, footnote 1) are concerned with habeas corpus proceedings challenging the legality of orders of deportation. The question before the courts in both cases was whether the general savings clause of the 1952 act preserved to the aliens a non-deportable status accorded them under the 1917 act (8 U. S. C. 100 et seq.) which was not carried over into the Immigration and Nationality Act of 1952. The case before us concerns an exclusion matter as distinguished from a deportation or naturalization proceeding. The applicant herein filed an application for a reentry permit pursuant to section 223 of the Immigration and Nationality Act (8 U. S. C. 1203) subsequent to the effective date of the said act (December 24, 1952) . It was issued at San Francisco, California, on April 1, 1955, valid to October 6, 1955. Section 223 of the 1952 act (supra) provides in paragraph (e) that : "* * * a permit issued under this section shall have no effect under the immigration laws except to show that the alien to whom it was issued is returning from a temporary visit abroad * * *. " The quoted phrase is substantially the same as the one used in section 10 (f) of the Immigration Act of 1924 (8 U. S. C. 210 (f) ) . The courts have consistently held that a reentry permit issued pursuant to section 10 (f) is at best only prima facie evidence of an alien's status upon his return and does not exempt him from 3 the excluding provisions of the immigration laws. Under the provisions of the Immigration and Nationality Act of 1952 (8 U. S. C. 1101 et seq.) a returning resident alien who had previously been lawfully admitted for permanent residence may be admitted upon presentation of a nonquota immigrant visa issued under section 101 (a) (27 (B) ( 8 U. S. C. 1101 (a) (27) ( B) ) , of that act or a reentry permit issued pursuant to section 223 of the same act (8 U. S. C. 1203) . The Immigration Act of 1924 had a similar provision in section 4 (b) (8 U. S. C. 204 (b) ) . For the purposes of entry an unexpired reentry permit is the equivalent of 4

an immigrant visa. Section 405 (a) (8 U. S. C. 1101, note) , the savings clause of the Immigration and Nationality Act of 1952 provides that when an immigrant in possession of an unexpired immigrant visa issued prior to the effective date of the act makes application for ' United States ex rel. Lesto v. Day, 21 F. (20) 307 ( C. C. A. 2, 1927) ; E parte Di Stephano, 25 F. (2d) 902 ( D. C. Mass., 1928 ) ; United States v. Fogarty, 13 F. Supp. 403 ( D. C., W. D. N. Y. , 1936 ) . * United States ex rel. Polymeris v. Trudell, 284 U. S. 279 ; Rederiaktiebolaget Nordstjernen v. United States, 61 F. (2d) 808 (C. C. A. 9, 1932) .

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admission, his admissibility shall be determined under the provisions of law in effect on the date of issuance of such visa. The reentry permit which the applicant presents was issued on April 1, 1955, and the law to be applied is the Immigration and Nationality Act of 1952 and not the Immigration Act of 1924. This is so by reason of judicial pronouncements (supra, footnote 4) that a reentry permit is the equivalent of an immigration visa as to a returning resident alien. A fortiori, it is concluded that the applicant falls within the provisions of section 212 (a) (22) of the Immigration and Nationality Act of 1952 ( 8 U. S. C. 1182 (a) (22) ) and, therefore, excludable as an alien ineligible to citizenship. In other words section 13 (c) (1) of the Immigration Act of 1924 (8 U. S. C. 213 (c) ( 1) ) is not applicable in the instant case because the determining factor is the date of the reentry permit was issued and not the fact that the applicant had resided in the United States as a lawful permanent resident alien prior to the effective date of the 1952 act. Our ruling in this regard is consistent with our decision in Matter of S , A-3214826, 5, I. & N. Dec. 183 (B. I. A., March 20, 1953) . The motion will be denied. Order : It is directed that the motion be and the same is hereby denied.

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