Matter of K----, A-6723213.
| Decision Date | 09 January 1959 |
| Docket Number | A-6723213. |
| Parties | MATTER OF K----. In EXCLUSION Proceedings. |
| Court | U.S. DOJ Board of Immigration Appeals |
DISCUSSION: The applicant is a 43-year-old married male alien, allegedly a native of Germany and a citizen of that country, who last arrived in the United States at the port of New York, New York, on July 30, 1956, as a passenger on the SS. United States. On that date he was in possession of a nonquota immigrant visa issued on March 29, 1956, by the American Consul in Germany.
The applicant was made the subject of exclusion proceedings before this special inquiry officer and was accorded a hearing in such proceedings on January 23, 1957, at the Federal Correctional Institution at Danbury, Connecticut. By decision of this special inquiry officer dated May 3, 1957, the applicant was found to be excludable from the United States under section 212(a)(9) of the Immigration and Nationality Act as an alien who had been convicted of a crime involving moral turpitude, to wit: Violation of Title 18, U.S.C., sections 2 and 545, to wit, causing and procuring smuggling of diamonds, and the applicant was ordered excluded and deported from the United States. The facts relating to the applicant's prior immigration history, the circumstances leading up to his arrest and conviction, and other relevant matters are set forth in detail in my decision of May 3, 1957, and no useful purpose would be served by repeating them at length herein.
No appeal was taken from my order of May 3, 1957.
Under date of November 20, 1957, the applicant requested that the exclusion proceedings be reopened to give him an opportunity to apply for a waiver of excludability under section 5 of the Act of September 11, 1957. By order dated December 17, 1957, the proceedings were ordered reopened, and the reopened hearing has now been concluded.
There are two principal issues presented by the facts in this case. The first of these issues concerns the question of whether an alien who applied for admission to the United States may be paroled into the country pending his criminal prosecution, his inspection as an applicant for admission being deferred, and upon his ultimate conviction for a crime involving moral turpitude, examined, referred for a hearing before a special inquiry officer, and found to be excludable as a person who has been convicted of a crime involving moral turpitude prior to admission.
As already indicated, in my order of May 3, 1957, I found that the applicant was properly excludable under these circumstances and ordered him excluded and deported. The legal basis for my conclusion has been fully set forth in my decision of May 3, 1957, and I find no reason to deviate from the position stated therein in any respect.
The second issue involved herein is as to whether the applicant is entitled to a waiver under section 5 of the Act of September 11, 1957, as he has requested.
Since the applicant is married to a naturalized citizen of the United States and has two minor children who were born in the United States, it is clear that he meets the preliminary requirements for a waiver under that provision of law. However, it must also be established to the satisfaction of the Attorney General that (a) the alien's exclusion would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, or son or daughter of such alien, and (b) the admission to the United States of such alien would not be contrary to the national welfare, safety, or security of the United States.
Section 291 of the Immigration and Nationality Act provides in part as follows:
The subject alien is an applicant for admission to the United States and consequently has the burden of proving that he is not excludable therefrom. He has this burden of proof generally, and with regard to his request for a waiver under section 5 of the Act of September 11, 1957, has the particular burden of proving that his admission to the United States would not be contrary to the national welfare, safety, or security of the United States.
This burden of proof he has failed to meet. The applicant is a criminal who has been convicted of a single instance of smuggling diamonds. The record indicates, however, that the specific act of smuggling for which the applicant was convicted was only one of a considerably larger series of operations. The record indicates that the applicant had, in fact, sent 13 other parcels of diamonds to the United States. It is further indicated that he was permitted to plead guilty to only one such act of smuggling in order to save the Government time and money in bringing witnesses from Germany to testify at his trial. The applicant has indicated that he has approximately $75,000 in banks in Europe. Obviously, if I am to make a rational decision that the admission to the United States of the applicant would not be contrary to the national welfare, safety, or security of the United States, I require certain additional information regarding the applicant. I would like to know, for example, for how long a period and to what extent the applicant engaged in criminal activities prior to his conviction. Was his criminal career of such an intensive and varied nature as to make it unlikely that a relatively short jail sentence would effect a reformation of his character? Were his criminal activities motivated by the economic pressures of dire necessity, or were they the result of a hardened and deeply ingrained antisocietal attitude? Is the applicant truly repentant for his criminal activities, or does he merely regret the temporary interference with his plans occasioned by his arrest and conviction? Did he operate in his criminal activities as a solitary individual or was he so callous to the welfare of those close to him that he deliberately involved his wife, his brother, and his brother's wife? Was he merely the tool of another criminal or was he, himself, the master-mind of the operations? Does the applicant have information at this time which might lead to the recovery of other smuggled merchandise or to the conviction of the persons involved in such smuggling operations?
However, the applicant has persistently refused to answer questions relating to these fields of inquiry, making the claim that the answers would subject him to possible criminal prosecution. In other words, he has asserted a claim to privilege under the Fifth Amendment to the Constitution of the United States. His wife has similarly refused to testify regarding this subject matter, both on the basis of the Fifth Amendment and also on the general ground that she is unwilling to testify against her husband.
To be more specific, the respondent refused to answer as to whether he had ever shipped any diamonds to the United States, the location of some $60,000 in assets in Europe, whether 13 other parcels of diamonds had been shipped into the United States by him, whether his wife was a participant in his criminal activities, and who an individual referred to by the name of "the shoemaker" was. It may be noted that the record contains correspondence sent by the applicant to his wife, brother, and sister-in-law in which there is a reference to a person so named. The applicant also refused to testify as to whether he was engaged in the business of money exchanging while in Europe. He refused to identify an individual by the name of IGNAC, who an individual by the name of SCHLAMEK was, or who a person by the name of RACHEL was. The applicant also refused to identify a copy of a letter which has been made part of this record, although his wife had previously identified it as being in his handwriting.
The applicant's wife testified in his behalf at the hearing before me. She denied ever having assisted her husband in smuggling diamonds into the United States or, in fact, being aware of his activities until his arrest. She denied ever hearing of anyone who was referred to as "the shoemaker" or ever having received a letter in which such a reference was made. She also denied ever having paid a sum of $5,000 to a man named SAM WEISS, or any such incident in fact. However, when confronted with exhibit R-2, a letter which she admits is in her husband's handwriting, and which makes reference to "the shoemaker," as well as to the applicant's instruction to his wife to pay $5,000 to Sam Weiss, she...
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