Matter of Ching

• Decision Date: 04 April 1968
• Docket Number: A-6154994.,Interim Decision Number 1858
• Citation: 12 I&N Dec. 710
• Parties: MATTER OF CHING. In Deportation Proceedings.
• Court: U.S. DOJ Board of Immigration Appeals

12 I&N Dec. 710

MATTER OF CHING.

In Deportation Proceedings.

Interim Decision Number 1858

A-6154994.

Board of Immigration Appeals.

Decided by Board April 4, 1968.

Since the phrase "is deportable", as used in section 244(a)(2) of the Immigration and Nationality Act, as amended, relates to an alien who has been charged and found deportable under one or more of the paragraphs of section 241(a) of the Act enumerated in section 244(a)(2), respondent, who has been convicted of a narcotics violation but is not charged nor found deportable under section 241(a)(11), is statutorily eligible for suspension of deportation under section 244(a)(1), as amended, where he is charged with deportability on grounds encompassed within section 244(a)(1).

CHARGES:

Warrant: Act of 1924 — No immigration visa.

Act of 1929 — Reentered within one year of arrest or deportation.

ON BEHALF OF RESPONDENT: Haskell R. Barst, Esquire 84 William Street New York, New York 10038

The respondent, a native and citizen of China, has been found deportable on the above stated charges. An order entered by the special inquiry officer on January 8, 1968 grants the respondent suspension of deportation pursuant to the provisions of section 244(a)(1) of the Immigration and Nationality Act. The case has been certified to the Board of Immigration Appeals for final decision of the legal question involved in the respondent's eligibility for suspension of deportation.

Discussion as to deportability: The respondent, a married male alien, 55 years of age, last entered the United States at the port of New York on March 6, 1952. He was admitted under section 3(5) of the Immigration Act of 1924 as a member of the crew of the SS "Simeon Reed" for a temporary period of shore leave not to exceed 29 days. He testified that at the time of his entry, it was his intention to remain in the United States permanently and that he was not in possession of an immigration visa. Prior to the respondent's entry on March 6, 1952, he had been arrested and deported through the port of Newport News, Virginia on January 15, 1952. The evidence of record affirmatively establishes the respondent's deportability as charged in the warrant of arrest issued on April 21, 1952.

Discussion as to eligibility for suspension of deportation: The respondent has applied for suspension of deportation under the provisions of section 244 of the Immigration and Nationality Act. The application raises the issue of whether the respondent's eligibility for suspension of deportation should be determined under the provisions of paragraphs (1) or (2) of section 244(a)(1) of the Act. The special inquiry officer concludes that as a matter of law the respondent is eligible for suspension of deportation under the provisions of section 244(a)(1) of the Act. He has certified his conclusion on this issue to the Board of Immigration Appeals for final decision.

The warrant of arrest issued on April 21, 1952 charges that the respondent is deportable under the provisions of the Act of May 26, 1924 as an immigrant not in possession of a valid immigration visa and the acts approved March 4, 1929 and February 5, 1917, in that he is an alien who had been arrested and deported and who reentered the United States before the expiration of one year following his deportation. The aforestated charges are not enumerated in section 244(a)(2) of the Immigration and Nationality Act but are encompassed within section 244(a)(1).

There is evidence of record, however, that the respondent was convicted on two occasions in 1945 for violation of narcotic laws relating to possession, receiving and importing narcotics (Ex. 4 of File 0801-2566, hearing of October 2, 1945 entered as Ex. 5 in the hearing of May 28, 1952). He was committed to the United States Public Health Service Hospital at Lexington, Kentucky to serve a two-year sentence. During a deportation hearing accorded the respondent on October 2, 1945 at the Public Health Service Hospital in Lexington, Kentucky, he was found to be "addicted to the use of narcotic drugs, and ... not a dealer in or peddler of such drugs." It appears that the respondent has been cured of his addiction. The charge in the warrant of arrest issued on September 18, 1945 and predicated on the respondent's narcotic convictions was not sustained.

Section 244(a)(1) of the Act provides for the suspension of deportation of an alien who "is deportable under any law of the United States except the provisions specified in paragraph (2) of this subsection ..." Suspension of deportation under paragraph (2) of section 244(a) is limited to aliens who are deportable as criminals, anarchists, prostitutes and includes within its provisions an alien who "is deportable" under section 241(a)(11) of the Act as a narcotic violator (emphasis supplied). The issue with regard to whether the respondent's deportation may be suspended under section 244(a)(1) depends upon an interpretation of the phrase "is deportable" as used in section 244(a)(2). The question before us is whether the phrase "is deportable" means that an alien is to be considered within section 244(a)(2) only if he is charged with and found deportable as an alien within one of the classes of aliens mentioned in paragraph (2) of section 244(a) or does the quoted phrase require an application for suspension of deportation to be considered under paragraph (2) where the record establishes that had deportability been charged under one or more of the specified provisions of section 244(a)(2), it would have been sustained but no such charge was in the warrant of arrest, the order to show cause or lodged during the course of the hearing.

The deportation process is not automatic. The procedure prescribed under section 242(b) of the Act "shall be the sole and exclusive procedure for determining the deportability of an alien." An alien within the United States, unlike one applying for entry at the border, is entitled to the full benefits of procedural due process in accordance with the Fifth Amendment to the Constitution. Sung v. McGrath, 339 U.S. 33, 94 L.Ed. 616 (1950); Chew v. Colding, 344 U.S. 590, 97 L.Ed. 576 (1953).

Section 244(a)(2) requires that an alien be one who "is deportable." 8 CFR 242.14(a) provides "A determination of deportability shall not be valid unless it is found by clear, unequivocal and convincing evidence that the facts alleged as grounds for deportation are true" (emphasis supplied). Section 242(b) commands that determination of deportability may emerge only from a record made in a proceeding before a special inquiry officer. The regulations (8 CFR 242), promulgated pursuant to section 242 of the Act provide, inter alia, that an alien must be furnished with notification of the charge against...