Indeed, in Matter of B- we considered the specific question here involved, and we said:

As we are primarily concerned with substantive rights and disabilities, not with form or procedure, we believe this reasoning equally applicable to cases of aliens who may first come before us as the result of the institution of deportation proceedings and but for section 19 (d) would be entitled to preexamination. Prior to the Alien Registration Act of 1940, the benefits of the seventh proviso were conferred in cases which had their origin in deportation proceedings as well as in those initiated by a request for preexamination. Basically, if in the latter cases approval may be given to voluntary departure notwithstanding deportability on a section 19 (d) ground, consonant action is permissible in the former. The only remaining distinction between the instant case and the B———— situation is that B― was deportable for a crime committed prior to entry while the respondent's crime occurred subsequent to entry. It may be urged that Congress intended to deal more harshly with an alien who committed a crime after his admission to this country, and therefore, that the seventh proviso should not be used to enable him to legalize his residence. We think this contention is unsound. By section 19 of the Immigration Act of 1917 an alien is deportable for a crime subsequent to entry only if (1) the crime was committed within 5 years after his entry, and (2) the alien was sentenced to imprisonment for at least 1 year. Crime prior to entry, however, is ground for deportation under the same section (1) irrespective of the duration of the imprisonment, (2) irrespective of the time period between the commission of the crime and the entry, and (3) irrespective of the duration of the alien's residence in the United States. This hardly suggests that Congress considered an alien who committed a crime subsequent to entry as more culpable and less deserving of discretionary action than an alien who committed a crime prior to entry. And furthermore, since the last entry is controlling in deportation proceedings, the contention suggested above would deny an advance exercise of seventh proviso power to an alien deportable for a crime subsequent to entry, but permit this discretionary action if an alien was fortunate enough to have made a brief visit abroad subsequent to his crime and had thus become deportable for a crime prior to entry." Here too, "chance might be the factor determining substantive rights." We conclude that advance exercise of seventh proviso power is available to an alien deportable for a

6

"In United States ex rel. Volpe v. Smith, 289 U. S. 422 (1933), the alien had resided in the United States for 19 years prior to his conviction.

*Blumen v. Haff, 78 F. (2d) 833, 836 (C. C. A. 9th, 1935), cert. den. 296 U. S. 644 (1935).

'Cf. United States ex rel. Volpe v. Smith, supra, note 5.

Matter of B - -, supra.

crime committed within 5 years after entry as well as to one deportable for a crime prior to entry."

Respondent has been a person of good moral character for the past 5 years and we believe that he is eligible for voluntary departure, and that preexamination should be authorized. We believe the question here presented is of such importance that our decision should be certified to the Attorney General for review.

Order: It is directed that an order of deportation be not entered at this time but that the alien be required to depart from the United States, without expense to the Government, to any country of his choice, within 6 months after notification of decision, conditioned upon arrangements being made with the local immigration office for verification of departure.

It is further ordered, That preexamination be authorized.

It is further ordered, That if the alien applies for admission to the United States he be admitted under the seventh proviso to section 3 of the Immigration Act of 1917, solely with respect to the ground of exclusion arising from his conviction of the crime of extortion in New York on June 14, 1922, subject to revocation in the discretion of the Attorney General, after hearing, if the alien hereafter commits any crime.

As a question of difficulty is involved, pursuant to the provisions of section 90.12, title 8, Code of Federal Regulations, the Board refers its decision and order to the Attorney General for review.

BEFORE THE ATTORNEY GENERAL

(March 12, 1946)

The Attorney General has concluded that, although he has the power to readmit the alien by use of the seventh proviso, the facts of the case are such as to make it inappropriate for him to do so.

'Recently a subcommitee of the House Committee on Immigration and Naturalization has commented on the hardship imposed by section 19 (d) in denying relief to long-resident aliens. Interim Report, Select Committee to Investigate and Study Laws and Problems Relating to Postwar Immigration and Naturalization, H. Rept. No. 1312, 79th Cong., 1st sess., pp. 3, 4. The subcommittee recommended that section 19 (d) be amended to provide for suspension of deportation in cases of exceptional hardship. The seventh proviso and suspension of deportation are forms of relief which are not coextensive in scope. In all probability, if Congress amended section 19 (d) by a provision similar to that suggested by the subcommittee, cases would still arise where the alien was eligible for seventh proviso relief but not for suspension of deportation. And until Congress so amends the law, the seventh proviso is the only form of relief available to the alien in the instant case, and to occasional other highly deserving cases of a similar nature.

BEFORE THE CENTRAL OFFICE

(July 31, 1946)

Discussion: The respondent is a native and citizen of Sweden, 42 years old. He last entered the United States at the port of New York in December 1919 as a member of the naval personnel of HMS Fylgia, and deserted. On June 14, 1922, the respondent was convicted in New York of extortion committed in March 1922, and sentenced to a term of 5 to 7 years in the State prison. Respondent is subject to deportation under section 19 of the Immigration Act of 1917 because he was sentenced to imprisonment for a term of 1 year or more for a crime involving moral turpitude committed within 5 years after entry. On March 12, 1946, the Attorney General advised that he was not disposed to authorize the readmission of the alien under the seventh proviso to section 3 of the act of February 5, 1917, and on April 15, 1946, the Board of Immigration Appeals proposed an order that the alien be deported to Sweden at Government expense on the charge stated in the warrant of arrest. On May 8, 1946, the order proposed by the Board of Immigration Appeals was served by registered mail upon the alien's representative. He was granted an extension from May 14, 1946, to May 24, 1946, within which to file exceptions and on May 23, 1946, he stated that he had decided to present oral argument before the said Board.

In view of the facts set forth above, the deportation of the alien should be ordered.

Recommendation: It is recommended that the alien be deported to Sweden at Government expense on the charge stated in the warrant of arrest.

In accordance with 8 C. F. R. 90.3, this case is referred to the Board of Immigration Appeals.

BEFORE THE BOARD

(September 18, 1946)

Discussion: Respondent is a native and citizen of Sweden, 42 years old. He has resided in the United States since December 1919. On February 19, 1946 we found him subject to deportation on the charge stated above. We proposed to give the alien voluntary departure, preexamination and the advance exercise of the seventh proviso to waive the ground of exclusion arising from his conviction in 1922. On March 12, 1946 we were informed that the Attorney General, although possessing the power to readmit the alien by use of the seventh proviso, declined to exercise that power in this case. Accordingly, on April 15, 1946 we issued a less favorable order, proposing

that the alien be deported to Sweden. Counsel for the alien at the oral argument asks that the alien be given an opportunity to apply for a pardon. A pardon would remove the ground for deportation. In view of the alien's citizen wife and children, his long residence, and his good record since the extortion conviction, we shall grant counsel's request.

Order: It is ordered that the alien be deported to Sweden at Government expense on the charge stated in the warrant of arrest.

It is further ordered, That execution of the warrant of deportation be deferred for 30 days to permit the alien to apply for a pardon, and if an application for a pardon is made within this period, that execution of the warrant of deportation be deferred for 6 months in order to determine the outcome of the pardon application.

BEFORE THE ATTORNEY GENERAL

(March 28, 1947)

On further consideration, I am convinced that the decision and order of the Board of Immigration Appeals of February 19, 1946 represents the correct action in this case. Therefore, the order of September 18, 1946 is hereby set aside, and the order of the Board dated February 19, 1946 is approved and adopted.

IN THE MATTER OF W

In ADVANCE NINTH PROVISO Proceedings

56197/610

Decided by Board February 20, 1946

Ruling by Attorney General February 26, 1946

Ninth Proviso Relief—Advance-Section 3 of the Immigration Act of 1917— Inadmissible as past member of British Communist Party-Act of October 16, 1918, as amended-Discretion.

In the absence of impelling reasons, discretionary power under the ninth proviso to section 3 of the Immigration Act of 1917 will not be invoked to permit the temporary admission of an alien who is inadmissible because of past membership in the British Communist Party.

BEFORE THE BOARD

This case comes to this Board on a petition for the advance exercise of the discretionary authority contained in the ninth proviso to section 3 of the Immigration Act of 1917, as amended.

Said petition was filed in behalf of T——— H————— W—, native of England and a subject of Great Britain, now resident in London, by his wife, an alleged native-born citizen of the United States who was admitted to this country on January 9, 1946, bearing passport No. 4218, following a denial of a visitor's visa to the alien because of leftist activities. The applicant's background is given by his wife as follows:

Born in England in 1898, he is a graduate of Balliol College, Oxford. He served in the Royal Flying Corps and the Royal Air Force during World War I and later became active in leftist and labor movements. He was refused admittance to the Bar in England because of a conviction in 1926 resulting from his activities during the general strike. In 1937 he commanded the British Battalion of the International Brigade which participated in the Spanish Civil War and following his return to England in 1938, he formally disassociated himself with the Communist Party. During World War II the applicant became a well known military expert and is the author of several publications. In 1943 and 1945 he was an unsuccessful candidate for Parliament on the Common Wealth ticket and is now an active. member of the Labor Party in England.

The stated purpose of the applicant's desire for temporary admission into the United States is to meet, for the first time, his mother-in